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.

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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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Refugee Women on Nauru

This blog post contains references to sexual and physical assault that may be distressing to some readers.

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A protester on Nauru holds up a placard complaining about the treatment of women and children asylum seekers.
Refugee Rights Action Network: Victoria Martin-IversonSource: ABCABC

s99, a name given by the Federal Court to a young African refugee, was unconscious and suffering an epileptic seizure when she was raped.  She had been transferred to Nauru by the Australian government after fleeing persecution in her home country. As with all refugees in Nauru she had been held in a detention centre paid for by the Australian government, and had subsequently been ‘released’ into the Nauruan community. It was then that she was raped, as a result of which she became pregnant.

There was strong medical evidence that s99 needed an abortion a fact that the Australian government accepted.  However, abortion is not an option on Nauru because it is both unsafe and illegal there. s99 had been a victim of female genital mutilation, this combined with her epilepsy and poor mental health, meant that she required specialised treatment that could be provided to her in Australia. Yet the Australian government, reluctant to bring her to Australia, transferred her to PNG where abortion was both illegal and unsafe. The Federal court ultimately decided that the Minister for Immigration had a duty of care to s99 to provide her with a safe and lawful abortion and ordered her transfer to Australia.

Tragically, s99’s story of physical and sexual abuse and lack of medical assistance is not an anomaly on the tiny island of Nauru which has been caught up in Australia’s border protection policies.

Only 48 women remain detained in the immigration detention facility in Nauru. Hundreds of women, however, including both single women and women with family groups live in the Nauruan community- their presence made possible by funding from the Australian government. These women have been found to be refugees and have been ‘resettled’ on the island. They are not permitted to leave the island except to return to their home countries, which as refugees, is not a viable option.

Policy of Deterrence at Work

These women are the victims of Australia’s policy of deterrence. Australia has attempted to stop refugees and asylum seekers from coming to our shores by ‘deterring’ them from seeking to enter our territory. As Greg Lake, one of the architects of Australia’s offshore processing regime has admitted, the policy of ‘deterrence’ is little more than ‘making conditions for those people worse than if they’d never come to Australia… In practice, that meant constructing an environment of hopelessness.’ That is, the suffering of refugees is not an accidental by‑product of Australia’s approach to those who seek its protection but a systematic and methodical tactic.

The evidence of the suffering of asylum seekers and refugees under Australia’s policies is irrefutable. Human Rights Watch reports that:

refugees and asylum seekers on Nauru routinely face neglect by health workers and other service providers who have been hired by the Australian government, as well as frequent unpunished assaults by local Nauruans. They also endure unnecessary delays and at times denial of medical care, even for life-threatening conditions. Many have dire mental health problems and suffer overwhelming despair – self-harm and suicide attempts are frequent. All refugees and asylum seekers face prolonged uncertainty about their future.

Shockingly every single refugee or asylum seeker interviewed by Human Rights Watch reported ‘intimidation, harassment, or violence directed at them or family members’ on Nauru. It is not difficult to see why Roger Cohen of the New York Times has stated that Australia’s offshore processing regime ‘follows textbook rules for the administering of cruelty.’

In the words of Mina Taherkhani,, a 36 year old refugee trapped on Nauru: ‘The Australian government utilises all of their tools to make us soulless and numb. They have normalised our deprivation, fatality and death.’

The Vulnerable Position of Women and Girls on Nauru

The abuse, self-harm and neglect of asylum seekers in Nauru violates the human rights of all refugees and asylum seekers. However, women and girls are vulnerable to suffering some of the most pronounced negative impacts of Australia’s policy of transferring refugees to offshore centres for detention, processing and even resettlement.

Women and girls are highly vulnerable to gendered forms of violence on Nauru such as groping, touching, explicit threats, and rape.  Lack of secure housing is a significant issue for women in Nauru. Women also do not feel safe leaving their accommodation alone. There is strong evidence that the Nauran police have failed to protect women from sexual and physical abuse or to investigate allegations from victims of rape.

In addition, women are more likely to suffer adverse health problems as a result of ‘catastrophic’ health facilities. Pregnant women, in particular, face greater risks to their well-being because of poor conditions.

The Nauru files, leaked incident reports written by staff in Australia’s detention centre on Nauru between 2013 and 2015 revealed hundreds of allegations, including 28 of sexual harassment, assault or abuse and 23 of assault or battery. They also documented how women held in Nauru attempted or threatened suicide 70 times, and committed or attempted self-harm 144 times.

A report commissioned by the Australian government, by Mr Phillip Moss AM also found it was likely that guards working at the detention centre at Nauru had sexually exploited refugees and asylum seekers in exchange for access to shower facilities; that women had been raped; and that adults and children had been physically and sexually assaulted.

The impact of detention on children can also have a devastating effect on refugees and asylum seekers including mothers. As UNHCR explains:

the absence of family or community support and the challenging physical
environment place young children (zero to five years) at significant risk of
compromised development from emotional, cognitive and physical
perspectives. In this context, the intolerable situation for asylum-seekers
and refugees, as well as the breakdown of normal family structures and
intra-familial relationships may place women and children at heightened
risk. Living in these conditions, as well as a physically hostile environment
in poorly ventilated tents, is especially traumatizing to children, in the
context of mandatory and open-ended detention that will exacerbate or
precipitate mental and physical illness into the future for them.

Fighting the Policy 

Australia’s policy of ‘deterrence’ which includes the transfer of women asylum seekers and refugees to Nauru would not continue if it did not enjoy the support of many Australian people or if the Australian government did not think they could get away with human rights abuses. This gives us, Australians, more power than we are sometimes led to believe or are willing to admit.

It is important to listen to the voices of refugees and asylum seekers themselves in any attempt to join in their struggle for human rights and dignity. As Mina Taherkhani, further explains,  ‘If Australia would like to support [women on Nauru], please make an opportunity for us to talk to the community.’

Hearing the voices of refugees and asylum seekers is difficult, however, because of a concerted effort by the Australian government to keep refugees far from the reach of the media, scholars and civil society.  Nevertheless, we must try to ensure those deliberately silenced have a voice and one way of doing this is to follow refugees and asylum seekers in our offshore centres on social media.

The policy of offshore processing resumed in 2012 and has continued for almost 5 years. For this reason much of the Australian media and many Australians no longer see the suffering of those in our offshore camps worthy of attention. However, for the men, women and children suffering through our regime the pain is no less real today than it was when they were first transferred to Australia’s detention islands. For this reason, our constant attention and our defiance will ensure that the refugees and asylum seekers sent to our offshore centres are not forgotten.

As outlined in another blog,  we also need to talk to our friends, our family and our communities about what is going on. We must be public in our concern. We need to use social media and all avenues available to us to draw attention to the plight of asylum seekers and refugees caught in Australia’s border protection policies.

It has been reported that the United States begun resettling a small group of refugees from Nauru and Manus Island last week. It should be noted that this resettlement deal is not the answer to ending the current crisis on Manus Island or Nauru. The deal is uncertain with no guarantees as to who will be resettled and when they will be resettled. The US has never claimed to be willing to take all refugees and asylum seekers transferred by Australia to its offshore centres. Whilst there is hope that some refugees will be able to begin a new life in the United States, the only way of ensuring that Australia abides by its international obligations and stops the cruel, inhumane and degrading treatment of asylum seekers and refugees for whom it has responsibility, is to close the centres on Nauru and Manus and resettle all refugees in Australia.

This is not impossible to achieve. Successful campaigns such as the #letthemstay campaign shows what is possible and that there is hope. The #letthemstay campaign was built to stop the Australian government from sending back to Nauru a group of vulnerable women and babies who had been transferred to Australia for medical attention. It led to many families being permitted to remain in Australia. The campaign involved numerous rallies in support of refugees and asylum seekers around the country, the willingness of churches to engage in civil disobedience, and doctors refusing to release vulnerable women and children from hospital for fear of their transfer to Nauru.  A recent attempt to cut income support and government housing for this same group of refugees and asylum seekers was met with further political action and resulted in more than 100 people receiving direct support from the Victorian government.

The success of the #letthemstay campaign has not been enough because the Australian government is now attempting to circumvent the gains made in the campaign by refusing to give refugees and asylum seekers in desperate need of medical attention access to Australian territory. Despite the Federal Court’s decision in s99, it was recently reported that refugee women transferred to Nauru who were seeking to terminate pregnancies and others in need of medical transfer were being refused medical care in Australia for fear that they would remain in Australia. This is not to say, however, that the #letthemstay campaign did not vastly improve the lives of the women and children at the heart of the struggle. The campaign #letthemstay shows that government policy can be changed but not in a single campaign.  The success was only a step in a much broader movement.

What is happening in our offshore centres is not inevitable. It is an expensive and deliberate policy that we can and we must change.

 

 

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.