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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First act of the family law review should be using research we already have

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We already have a great deal of high-quality information about what works, and what doesn’t, in our family law system. shutterstock

This article appeared in The Conversation on 4 October 2016. Information about the first holistic  review of the family law system since it was created in 1974 can be found on the Australian Law Reform Commission website.

Renata Alexander, Monash University

On September 27, Attorney-General George Brandis commissioned the Australian Law Reform Commission (ALRC) to undertake what he described as “the first comprehensive review of the family law system” since the commencement of the Family Law Act in January 1976.

The terms of reference are extremely wide-ranging. Producing a report by March 31, 2019, seems overly ambitious.

There has been universal support for such a review from key players in family law, as well as those more on the periphery such as politicians espousing party-dictated views or representing individual (usually aggrieved) constituents.

As much as such a review will serve a valuable purpose, it is important to remember that our family law system has not remained static for the last four decades. There have been numerous significant reforms not only to the statute itself, but to the operation of courts determining family law cases, and allied areas such as family dispute resolution and counselling.

The Family Law Act initially introduced several revolutionary changes. For example, it established the Family Court of Australia; introduced “no-fault” divorce; and totally revamped laws about determining children’s cases and property settlement.

It also set up a new system of alternative dispute resolution and established the Australian Institute of Family Studies (AIFS) as a dedicated research body, along with the Family Law Council (FLC) as a representative body to monitor and advise the federal government on operational and policy matters.

Since then, various aspects of our family law system have been examined and changed.


Further reading: No simple solution when families meet the law


Family law legislation has undergone significant expansion and reform. It now covers divorce, nullity, parental responsibilities and obligations in respect of all children, and children’s rights.

It covers de facto relationships (marriage is dealt with specifically by the Marriage Act), spousal maintenance, division of property binding financial agreements, and family violence. There are now two federal family law courts, but they are overburdened and have long waiting lists.

Researchers too have not been idle. For example, the 1980s and 1990s saw a plethora of reports by the ALRC about domestic violence (1986), matrimonial property (1987), contempt (1987), multiculturalism and family law (1991), justice for women (1994), and complex child contact cases (1995).

More recently, the ALRC has produced two substantial reports on family violence.

In addition, the AIFS, the FLC and the family law courts have each produced numerous reports on a wide range of areas including child protection, parenting arrangements post-separation, and family violence.

The Family Law Act established the Family Court of Australia. Shutterstock

There have also been important bipartisan state and federal parliamentary inquiries, most notably the federal inquiry into child custody arrangements in the event of family separation. This in turn produced “Every picture tells a story” in 2003 and the parliamentary inquiry into how family law can better support and protect those affected by family violence in 2017.

All these resources reflect a rich but largely unconnected tapestry of information about our family law system, which the ALRC can use to assess how best to reform the system.

Yes, the ALRC review of the Australian family law system is most welcome. However, it need not waste precious time or resources to remind us, as Leo Tolstoy wrote in Anna Karenina, that “all happy families resemble one another, each unhappy family is unhappy in its own way”.

Notwithstanding the wide terms of reference, some other areas merit attention. These include the use of “good” evidence-based social science in determining the best interests of children and crafting parenting orders.

Another area is access to justice. The high cost of legal representation and cuts to legal aid mean large numbers of self-represented litigants. Also there is the question of mandatory education for judges and legal professionals in areas such as family violence and child abuse, which comprise over half of the courts’ work loads.

We know that families are complex entities when intact. And it is equally complex and complicated catering to the needs of adults and children once those family structures break down.

New Podcast: The Scarlet Letter speaks to Dr Kate Seear

In this episode of the Scarlet Letter we talk to Dr Kate Seear about the origins of her feminism. We also learn about her work on addiction and the law, as well as her well-known football podcast, the Outer Sanctum.

kate seear

Dr Kate Seear

Interviewers: Dr Azadeh Dastyari and Tamara Wilkinson.

Abortion in limited cases finally legalised in Chile

In 2011, I published a piece in the journal Human Rights Quarterly where I presented a rebuttal of a book arguing that abortion is prohibited under international law under all circumstances. In my review I concluded that the book
calls repeatedly for principled analysis, intellectual integrity and an end to revisionist interpretation yet fails to meet its own challenge. A principled analysis might have acknowledged that the core human rights instruments do not coincide with [the author’s] philosophical position and explored her vision for the development of international law, including means of addressing conflicts of rights.
Until August 2017, Chile was one of just 6 countries in the world that had a complete ban on all abortions (even where the mother’s or baby’s life was at stake), jailing both the woman and the doctor involved in the procedure. This law was put into place in 1989 under during the dictatorship of General Augusto Pinochet.
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Pro Choice March, Santiago, July 2013. Photo: Santaigo Times, by Ashoka Jegroo Creative commons

When the first female President of Chile, Michelle Bachelet was re-elected in 2014 (after previously serving as President from 2006 to 2010), she declared reproductive rights an important focus of her tenure.  The Bachelet government put forward a bill  in 2015 which legalised abortion in cases of rape, foetal disability, and danger to the life of the mother.

That bill has been the subject of two years of political wrangling and debate, and was challenged in Chile’s Constitutional Court. On 21 August 2017 the Court upheld the constitutionality of the bill, meaning that abortion will be lawful when the pregnancy results from rape, when the pregnancy endangers the mother’s life and when the foetus is not viable.

A short YouTube video about the change to Chile’s abortion laws and the case can be found here. The quote included from Pinochet’s advisor is especially chilling.

In 2016, I was in Santiago, Chile, and met with Lidia Casas Baccera, a lawyer who was involved in the case. She asked me whether she could use a review I had written in Human Rights Quarterly . Of course I agreed and the review was translated and included in the materials put before the court scrutinising the Bachelet amendment. It is really exciting that the court has upheld the Bachelet amendment.

Between her two presidential terms, Bachelet served as the inaugural executive director of UN Women.  Her government has now succeeded in bringing an end to unjust laws that have punished and endangered women while denuding them of autonomy and rights. She will finish her term as president in March next year, leaving a proud legacy of advancing women’s equality.

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.