Can things be made easier for victims and families?
Is justice about criminals or victims and their families? It’s a question that’s come to a head for me lately. We talk of bringing criminals ‘‘to justice’’, but also about ‘‘finding’’ or ‘‘getting’’ justice for victims. Do we – police, prosecutors, lawyers, politicians, media – skew too far towards the former at the expense of the latter?
It could have spared a lot of pain last week if the Brisbane detective had simply stopped at saying investigators had a responsibility to ‘‘keep a completely open mind’’.
Of course, Detective Inspector Mark Thompson didn’t do that. In the context of the indescribably awful situation in which Rowan Baxter murdered estranged wife Hannah Clarke and their three children, he caused outrage.
‘‘Is this an issue of a woman suffering significant domestic violence and her and her children perishing at the hands of the husband, or is this an instance of a husband being driven too far by issues that he’s suffered, by certain circumstances, into committing acts of this form?’’
Sorry to repeat it. The second half looks even worse a week on. The clumsy wording speaks of someone trying to think on his feet, and getting it badly wrong.
This is borne out by the comments of his boss, Queensland Police Commissioner Katarina Carroll. In announcing Thompson’s offer to stand aside from the investigation, she said he was ‘‘distraught’’ at ‘‘how it came out’’.
Both Carroll and Thompson demonstrate a degree of linguistic clumsiness when put on the spot, which gives me some sympathy for them. It’s not easy expecting your brain to give you the right words as you’re speaking.
But in one sense their verbal gymnastics is useful, too. Thompson wouldn’t have said what he did unless that was the way he was thinking. Which makes me wonder how the case would be discussed at police headquarters.
Would phrases be thrown around that, if we heard them in public, would sound like blatant victimblaming? Would someone ask what she might have done to bring this on, and if they did, would that be part of ‘‘keeping an open mind’’? There seem so many opportunities for retraumatisation of victims and their families in the justice system.
To me the very idea that there could somehow be extenuating circumstances for an act that saw a woman and her three young children die terrifying deaths is completely foreign. Any skerrick of sympathy Baxter might have been due disappeared completely at the moment he chose the path he took.
This week, I attended a public lecture at the University of Canterbury where a team of four researchers, led by Professor Elisabeth McDonald, launched an open access book through Canterbury University Press called Rape Myths as Barriers to Fair Trial Process. The 586-page book compares analysis of 30 adult rape trials, from 2010-15, with a consent defence, with 10 cases from the Sexual Violence Court Pilot in 2018.
The researchers are clear there can be no backing away from the requirement for a robust, fair trial for a defendant, but complainants can be better protected.
One change they argue for is a high threshold of relevance to the complaint for evidence sought from complainants by defence counsel.
That’s at least partly to limit the potential for a complainant to be diminished in the eyes of a jury by questions of borderline relevance. Sexual history is front and centre here.
Then there is, as the book puts it, ‘‘reliance on defendants’ actions as being unlike that of a rapist’’ to establish they must have believed consent existed.
It was clear from subsequent discussion involving the researchers and some prominent legal minds in the audience that genuine fears still exist about what anyone taking a rape complaint now would be subjecting themselves to, unless they were ‘‘articulate’’ and ‘‘robust’’ and had good support outside court. That doesn’t sound like accessible justice to me.