When it comes to redress for child sexual abuse, all victims should be equal

This piece was originally published in The Conversation on 1 November 2017.  An associated blog post regarding the evidence the authors presented to the Victorian Law Reform Commission can be found here.

dogs of fear

The redress scheme cannot be a truly ‘just response’ if it says some kinds of victims simply don’t count.  Photo Source: Torbak Hopper (Creative Commons)

 

Kate Seear, Monash University and Suzanne Fraser, Curtin University

The federal government last week announced details for its long-awaited redress scheme for victims of institutional child sex abuse. The proposed scheme is a response to recommendations from the ongoing Royal Commission into Institutional Responses to Child Sexual Abuse.

Controversially, the government proposes to exclude from redress anyone convicted of sex offences, and those sentenced to prison terms of five years or more for crimes such as serious drug, homicide or fraud offences.

This proposal is profoundly flawed and a step backward. It is made at a time when institutions should be atoning for past wrongs without arbitrary exceptions.

Crimes compensation schemes across Australia

All Australian states and territories have victims of crime compensation schemes. They provide victims of certain crimes with modest compensation to cover their expenses, or payments to recognise wrongs perpetrated against them.

Although state and territory schemes are typically funded by the state, the Commonwealth scheme anticipates that “responsible entities” – such as churches – will pay.

All schemes include criteria detailing who is eligible for support and who is not. People who “collude” with the perpetrator to rort the scheme are excluded. Victoria’s scheme contains an additional, broad provision requiring its tribunal to consider whether victims’ “character, behaviour or attitude”, past or present, should exclude them. The idea of excluding certain kinds of victims from support is is thus not unique.

However, all exclusion criteria warrant scrutiny, as they raise questions about victimhood, the selective recognition of harm, and social and community responsibility.

The Commonwealth proposal is especially in need of scrutiny, because of its historic significance and symbolic role, and also because it involves more specific criteria for excluding victims than other schemes.

The problem with saying only some victims are worthy of sympathy

We have studied how the Victorian law is interpreted and applied. The Victorian provision differs from the proposed Commonwealth one, but what we found offers clues about the significance of the Commonwealth exclusions.

Victoria’s “character” test allows highly partial moral and political judgements about who may be deemed “worthy” of public sympathy and support. For example, people with a history of illicit drug use or addiction can be excluded on the basis that they have a criminal history.

On occasion, victims with a drug-using history do receive compensation, but this can depend on whether tribunal members interpret the crime they have experienced as an explanation or “excuse” for their drug use or addiction. Here, being a victim of child sexual abuse or family violence is considered relevant.

While an experience of crime might lead to drug use for some, this is not the case for others. The nature of addiction is heavily contested, as is the relationship between drug use and past suffering or trauma.

So, there are practical and ethical problems associated with making decisions in legal contexts about why someone might have begun consuming illicit drugs or developed drug problems, and whether that should exclude them from compensation.

Notably, these evaluations can disproportionately affect women, since women are more often victims of family violence, sexual assault and sexual abuse. Such scrutiny may also retraumatise victims and compound, rather than alleviate, their suffering.

As it happens, the Victorian Law Reform Commission is currently undertaking a review of the Victorian Victims of Crime Assistance Act. We recently told the commission that the existing approach is flawed.

Although it might be politically popular – and less expensive – to separate applicants into the categories of “deserving” and “undeserving” victims, it is morally wrong to do so.

We acknowledge that some taxpayers may not tolerate money being given to people with criminal records. Why, they might ask, compensate criminals for wrongs done to them, when they themselves don’t respect the law?

At least part of the answer is that as a society we must acknowledge the seriousness of the impact on individuals of the kinds of crimes sometimes before the Victorian tribunal. The same holds for the royal commission.

In introducing the bill to parliament, Social Services Minister Christian Porter described it as a “just response”:

Children placed in the trust of our society’s institutions were some of the most vulnerable members in our community and the fact that must be confronted is that many children were sexually abused by the very people charged with their care and protection. No child should ever experience what we now know occurred. That is why it is time for all institutions and all governments to take responsibility for what has happened.

This statement acknowledges that children experienced serious harms in contexts facilitated and overseen by the nation. It insists that the community must accept and respond constructively to this knowledge. Taking a careful and informed approach to the meaning of criminal acts such as illicit drug consumption is part of this obligation.

Importantly, those excluded by the Commonwealth scheme will have been convicted and punished in the past. Should someone who suffered harms as a child forfeit the right to have those wrongs acknowledged? Would this amount to punishing them again?

Justice should apply to everyone

We would argue that a person’s right to justice, to the extent that this might be available through compensatory schemes, should not be tied to past activities.

As justice theorist Sara Ahmed argues we must:

… challenge the view that justice is about […] being the right kind of subject. Justice is not about ‘good character’. Not only does this model work to conceal the power relations at stake in defining what is good-in-itself, but it also works to individuate, personalise and privatise the social relation of (in)justice.

As the royal commission has exposed beyond question, institutional responses to child sexual abuse have often been profoundly irresponsible, and potentially criminal in themselves.

The ConversationThe redress scheme must send the strongest possible message to those responsible. It cannot be a truly “just response” if it says some kinds of victims simply don’t count.

Kate Seear, Academic Director of Springvale Monash Legal Service & Senior Lecturer in Law, Monash University and Suzanne Fraser, Professor, National Drug Research Institute, Curtin University

This article was originally published on The Conversation. Read the original article.

 

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Eddie McGuire, Caroline Wilson and when ‘playful banter’ goes very, very wrong

By Dr Kate Seear, Senior Lecturer, Faculty of Law, Monash University

This article was originally published in The Conversation on 20 June 2016.

An article about the background story to this article can be found here. Kate is a member of the Outer Sanctum podcast team, which first broke this story. 

 

Image 20160620 9516 65803yEddie McGuire caused a furore by suggesting the drowning of prominent sports journalist Caroline Wilson.

AAP/Tracey Nearmy

 

Kate Seear, Monash University

In March 2016, five female friends and I began The Outer Sanctum podcast, a weekly show where we discuss the big footy issues of the day. Through interviews we also aim to provide a platform for voices not usually heard in conventional sports media.

As six passionate female footy fans, we hoped we could disrupt the conversation by showing that women, too, are passionate and knowledgeable about footy, but also by exploring some of the bigger social and cultural aspects of the game.

A major footy story

Over the last couple of days, we have somehow suddenly found ourselves at the centre of a major footy story.

On this week’s podcast we explored controversial comments that two AFL club presidents, Eddie McGuire and James Brayshaw, had made with others on Triple M radio. They laughed about drowning prominent Fairfax sports journalist Caroline Wilson to raise money for charity. I recommend listening to the audio in full, because both the language and the atmosphere are important.

We were surprised that this hadn’t been a much bigger story during the week. No major news media had run with it.

Over the weekend, however, listeners to our little podcast started to take notice: the story began to spread on social media, was eventually picked up by freelance sports writer Erin Riley, independent podcaster and blogger Josh Pinn and, eventually, The Age, Herald Sun, The Guardian, ABC and others.

The AFL has since publicly condemned the comments. Ironically, they came in an historic week for women in the game: it launched the inaugural women’s league, held a special themed game to support the anti-violence charity White Ribbon, and partnered with Our Watch, an organisation that aims to raise awareness about violence against women.

It also comes at a time when prominent AFL footballer Jimmy Bartel is running a season-long campaign to raise awareness about violence against women through his #FaceUpToDV campaign.

It feels like we have taken one step forward and two steps back.

These events raise important questions about footy culture

There are two particularly important questions to emerge from this series of events.

First, what might this “casual sexism” and “blokey banter” tell us about the culture of AFL football specifically, and society more broadly? Wilson has herself suggested that it’s a rebuke for being a strong, opinionated and tough woman who routinely holds the big boys of AFL to account.

The impact on Wilson is clear – she is hurt and offended. But on radio talkback and social media around the country she is already being criticised for lacking a sense of humour and for “bringing it on herself”. This is language that bears dangerous and uncomfortable parallels with victim-blaming language so often used in the context of rape.

Language matters. As Our Watch points out, there are important links between the use of disrespectful language towards women, the language of violence, and the occurrence of violence.When prominent men with a major media platform use disrespectful language towards women, it risks reinforcing the notion that women are inferior to men.

As media commentator Patrick Smith noted:

What’s happening is the football community is going exactly the same route that racism went through. We had to learn that there are no throwaway lines in racism, that nothing is funny. There’s no throwaway lines in domestic violence. So whatever you think is funny, is not funny.

Patterns of speech can also constitute, in some contexts, a form of actual family violence, a point explicitly recognised in legislation defining family violence.

The need for education and respect

The Victorian Royal Commission into Family Violence’s final, seven-volume report directly acknowledged the importance of education, language and socialisation in the treatment of women.

Among its 227 recommendations for change, the commission emphasised prevention, including the need for schools to educate young children on respectful relationships.

The commission’s report also stresses the need for supportive workplaces. Let us not forget, then, that these comments were made in a workplace, where the capacity to cause hurt and offence should be at the forefront of people’s minds.

They were also made on a major media platform with a wide audience. The Commercial Radio Australia rules explicitly state that media should not broadcast material “which condones or incites violence against women”. Although I am not suggesting that was the intention or the effect here, it’s another pointed reminder of the need to speak with care.

The importance of new voices and diverse media

The second question we need to ask is this: why was this story not picked up by the mainstream media? Why did it take our podcast, and our listeners, to generate this conversation?

Wilson believes that people are scared of McGuire and reluctant to stand up to him. This might drive a culture of non-reporting and fear that journalists who challenge powerful figures risk losing their AFL accreditation.

It may be that some mainstream AFL journalists thought nothing of the exchange because the language of casual sexism is so commonplace that it might just seem no normal to them. But that’s what makes this an even bigger story: McGuire, Brayshaw and their colleagues are powerful media figures, with extraordinary reach and clout. It’s incumbent upon them to be careful when they speak, because what they say carries enormous weight.

Needless to say, there are questions to be asked and answered by some of the biggest names in the game. In a media landscape that has long been dominated by certain groups (primarily white men), this story offers a stark reminder of the importance of new voices and diverse media.

These voices “from the outer” are sparking new conversations: some painful and long overdue, but they are conversations that will ultimately only enrich the game we love, and our society.

And as we continue to be reminded that one woman dies from violence per week in this country, let us hope that this is the start of a new conversation, rather than the end of one.


The ConversationKate Seear, Academic Director of Springvale Monash Legal Service & Senior Lecturer in Law, Monash University

This article was originally published on The Conversation. Read the original article.

Mia Freedman et al are wrong: being drunk doesn’t cause rape

by Dr Kate Seear, Senior Lecturer, Faculty of Law, Monash University

by Professor Suzanne Fraser, Professor and Project Leader, National Drug Research Institute, Curtin University

This article was originally published in The Conversation on 12 November, 2013.

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Media commentators have linked alcohol use with sexual assault.
FLICKR/Monkey Boy42

Controversy over rape, alcohol consumption, and responsibility reignited last month when US columnist Emily Yoffe penned an article provocatively titled College women: stop getting drunk. But the link between alcohol use and sexual assault is less certain than it may seem.

Yoffe argued that alcohol is often a “common denominator” in rape, quoting a 2009 US survey showing 20% of college women reported having been sexually assaulted since commencing their studies, and that 80% of these cases “involved” alcohol.

According to Yoffe, alcohol both enables sexual predators and renders women vulnerable to assault. She concluded that female college students should “start moderating their drinking”.

Despite some references to men, her focus was overwhelmingly on what women could do to avoid rape – ideas that were echoed by Australian columnist Mia Freedman.

The public response to both columns was swift and overwhelmingly critical.

Many feminists raised concerns that these messages appear to blame rape victims for attacks, which may cause further distress to women who often already blame themselves. The focus of the columns was unfairly and disproportionately on women’s actions, with too little attention paid to the actions of men.

What’s more, most rapes don’t occur in the circumstances these columnists describe – much higher rates of sexual assault occur at the hands of partners, family members, workmates, and friends.

Drugs, alcohol and crime

But Yoffe and Freedman’s assumptions about alcohol, and about cause and effect have been largely overlooked.

Two claims have been especially prominent. The first is that alcohol disorients women and makes them more vulnerable to attack. The second is that alcohol somehow makes men more impulsive and emboldens them to rape.

Such claims falter in the face of reality.

Recent research challenges the claim that alcohol and other drugs cause crime in the absence of other factors. We know most people drink alcohol (even in large volumes) but don’t perpetrate rape.

Although it’s common practice to ascribe a set of social problems or crimes to drug use, these effects are nowhere near as widely experienced as we assume.

Indeed, as sociologists of drugs and addiction already know, claims like these reveal less about drugs and more about our hopes and fears about individuals and societies.

While it might comfort us to think of rape and other violent crimes as the product of a single, controllable substance, it makes little sense to single alcohol out.

Rape is a complex phenomenon. Of course, it’s also a gendered one – men are overwhelmingly the main perpetrators and women the main victims. These factors demand a more careful and unflinching look at many issues implicated in rape, including gender discourses and practices.

There’s also a central paradox at the heart of both the columns that started this controversy.

Apparently, although alcohol has certain stable “effects”, these differ by gender. Alcohol renders women more passive and increases their physical vulnerability; it makes men more aggressive and physically powerful. These effects are compounded, Yoffe claims, by biological differences between the sexes.

Both these ideas are grounded in outdated, unproven ideas about gender differences. They reveal much about our historical cultural fantasies of heterosexual submission and domination.

Beyond simplistic approaches

We need to take care when making claims about the “causes” of rape. We also need to avoid simplistic claims about what drugs like alcohol do to people. While alcohol may sometimes be present in rape, there’s no simple, predictable, stable and consistent causal connection.

It’s essential that we face this uncomfortable reality when devising policy responses and educational strategies. If we don’t, policies and other measures for “addressing” the problem of rape may instead exacerbate it.

In particular, measures guided by simplistic assumptions may lead us to neglect other relevant issues, foster complacency, or encourage the belief that rape is a simple problem with simple solutions.

Most troublingly, we risk perpetuating a logic of rape as natural human behaviour. When alcohol “unleashes” men’s “natural” sexual aggression and magnifies women’s “natural” passivity, rape becomes a dynamic embedded in us all.

The ConversationIf we imagine that sexual violence is a part of our essential humanity, any attempt to eradicate it is unlikely to succeed.

Kate Seear, Research Fellow in the Social Studies of Addiction Concepts program at the National Drug Research Institute, Curtin University and Suzanne Fraser, Associate Professor, Curtin University

This article was originally published on The Conversation. Read the original article.