Catriona MacLennan: Legal language trivialises ordeal

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Change needed on attitudes to rape and insensitive terminology used by judges when assessing cases.

Each case is weighed and penalties decided based on their seriousness. Photo / Getty Images
Each case is weighed and penalties decided based on their seriousness. Photo / Getty Images

Rape is a horrifying physical and psychological ordeal which leaves emotional scars long after physical injuries have faded.

The task of the legal system is to assess the culpability of offenders convicted of rape and impose the appropriate penalties on them. In doing this, however, our system needs to improve both the language it uses and the attitudes to rape evidenced by that language.

This can be clearly illustrated by a case in which Justice Asher delivered a 16-page judgment in the High Court at Rotorua on November 30, 2012 when he sentenced five men convicted of rape.

The men had during the day exchanged texts talking about "putting a woman on the block". They invited her around for an evening of socialising. She went willingly and those present drank for several hours, with the woman consuming a lot of alcohol and becoming drunk.

One of the men then grabbed her from behind and pulled her top down to expose her breasts. When she tried to replace her top, the men pinned her arms behind her and removed all of her clothes.

The victim was forced on to a couch, struggling and crying out in protest. She eventually stopped protesting as the fighting was injuring her.

Four of the man raped her and she was also forced to perform sex acts. The woman was punched on the side of her face, leaving her hurt and dazed. The attack lasted between two and three hours and included further humiliating assaults.

The victim was left with multiple bruises to her chest, arms and legs, including numerous finger bruises consistent with hands holding her forcefully and specific injuries arising from the violent sexual assaults.

In a victim impact statement the woman said she had suffered greatly. She received bruising, blood vessels in her cheek were still broken from the punch and she was sore and stiff for many days. During that time, simple tasks such as eating and going to the toilet were difficult because of the injuries she had received.

The physical harms healed gradually but the women took nine months off work to recover from the emotional stress of the assaults. She felt ostracised in her community to such an extent that she moved away, subjecting her to a devastating loss of support from family and friends.

Although she said she would never get over what had occurred, the woman said that she would move on.

"I just have to remember that not all people are that nasty."

When Justice Asher came to sentence the five men - each convicted of four counts of rapes - he was required to follow the Court of Appeal's 2010 decision in the case of R v AM, which established guidelines for High Court judges to apply in subsequent cases.

The Court of Appeal set out four "bands" for sentencing, stating that appropriate penalties for rape would range from six to eight years' jail for Band One cases, to between 16 and 20 years' jail for Band Four cases. In this case, Justice Asher, the Crown and the defence lawyers agreed that the offending fell into either Band Three or Band Four.

It was then Justice Asher's job to decide exactly what the appropriate sentence was by reviewing both the facts and the relevant law.

The judge said he was "conscious of the need to denounce this offending and to recognise the immense harm it has done to the victim".

However, he then went on to reject the Crown's view that the offending was premeditated, saying that he did not believe that "on the block" meant rape but rather that it referred to one woman having sex with a number of men.

In assessing the culpability of the offenders, Justice Asher said: "I note that there was no particular vulnerability of the victim, no physical harm more than what was inherent in multiple rapes with multiple offenders, and no breach of trust in the sense of a breach of a familial or particular trust relationship."

Really ?

It is simply insulting to rape victims to state that there was no physical harm: rape is by its nature a violent act.

The words "no particular vulnerability of the victim" are used to refer to the fact that the victim is an adult. Rapes of children and very elderly victims are regarded as more heinous than those of adult women. The effect of this language is to downplay the woman's ordeal.

Similarly, the phrase "no physical harm more than what was inherent in multiple rapes with multiple offenders" totally trivialises this woman's experience and that of other victims of multiple rape.

As the woman knew three of the men, it could be expected that she felt that her relationship with them was characterised by some degree of friendship.

What greater breach of trust could there be than for friends violently to attack a friend and subject her to an ordeal lasting up to three hours ?

Contrary to the myth that "real" rape involves only strangers in dark alleys, most victims actually know their attackers. Treating rapes by offenders known to the victim as less serious than stranger rapes accordingly means that the experiences of the majority of women who suffer sexual assaults are downplayed.

The judge went on to consider the harm suffered by the victim. "I agree with the assessment of the Crown in written submissions picked up by your defence counsel that in terms of the scale of the offending, the harm to the victim was at the lesser end. But I do not overlook ... that that must be seen in comparative terms of this being a serious, prolonged and harmful episode of penetration."

The judge concluded that the offenders had done terrible harm to the victim "but in terms of the impact of this sort of offending, as I have said, it can be placed at the lesser end of the serious scale."

What terrible words for the victim to read after suffering a painful and terrifying ordeal, being off work for nine months and suffering from post-traumatic stress disorder, anxiety and depression.

Our legal system imposes penalties by comparing different cases, weighing their seriousness and making judgments as to factors that are both aggravating and mitigating.

However, the way in which this is done in rape cases trivialises the ordeals of victims and displays a lack of understanding of rape.

Judges need further education about rape - who the perpetrators are, what the impacts are on victims and how terrifying, humiliating and painful rape is.

The legal system also needs to find more accurate and sensitive language to use in rape sentencing so that the process of arriving at an appropriate penalty does not trivialise and downplay the assault suffered.

•The five men were sentenced to jail terms ranging between 11 years and four months' imprisonment and 13 years' imprisonment. The judge gave the men discounts for their youth and what he said was their good character and rejected a Crown submission that the offending was premeditated. The judge declined to impose a minimum terms of imprisonment, stating that he "did not consider that a release after one-third of your sentence would plainly constitute an insufficient response in the eyes of the community."

Catriona MacLennan is a journalist and barrister.

- NZ Herald

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