The Court is arranged in preparation for the unspeakable sadness of victims reading their Victim Impact Statements. The barrier between the public gallery and the body of the court has three boxes of tissues, placed equidistant along the top rail. More are laid out, uniformly amongst the seats for the families of friends and victims alike. A registrar scuttles in an out of the entrance through which victims and protected witnesses make their entry.
A hush falls as the gathered people wait, expectantly, for her to return bringing the Judge to sentence a man, who has sexually abused children. Only the faints sounds over overlapping sniffling can be heard and the rasp of the tissue paper as it’s drawn out of its cardboard boxes.
After the lawyers announce for whom they appear, the victims are called to read their statements. I place myself squarely in my chair and relax my legs. Under the bench I place my hands on my knees, palms up, my forefinger and thumb curled until they just touch. I run an audit through my body, relaxing those muscles I can, eventually mastering those in my locked up jaw. I slow my breathing, brining my pulse down with it and now I am ready.
She is an adult now, but she remembers how he had raped her for a decade. She recounts the tale of her broken life and its downhill spiral into the abyss. The content, to graphic to repeat, is seared into my synapses. As I stand to make the plea in mitigation, I feel the hot stare of a hundred eyes drilling their hate into my back.
Sentencing is becoming increasingly formulaic. A case from the Court of Appeal lays down guidelines and there is no argument as to where the Prisoner fits within its matrix. A starting point of 16 years is appropriate. The only issue is how much “discount” should get for his guilty plea and his remorse.
It’s hard not to become cynical when the word “discount” is used, but it accurately reflects that this is a market where judges will reduce sentences based on what the villain brings to the table. Short of narking on worse villains, a guilty plea is the most valuable currency in this exchange.
But the value of an early plea of guilty – usually 25 percent – is not set in stone. In cases where conviction is nearly inevitable and the witnesses are robust, it might not be worth so much. The courts contrast, say, a case like this with that of a person busted red-handed with a kilo of meth by a world-weary detective. In sex cases like this one, conviction is not inevitable and, as has been expressed before by sex victims, cross-examination by a defence lawyer can be worse than the event itself. There is no doubt there are some things victims don’t want to relive in court. World-weary detectives, of course, love recounting the incriminating details of their busts even when merely asked about the weather. “It was a sunny day your honour, a golden ray shining through the curtains clearly showing the accused weigh her kilo of meth.” The glee often palpable as detectives, dextrous as politicians, pivot the question on to policy.
But in this present case, a guilty plea is worth so much more, the court is told. A fragile witness might break and will at least be bruised, so conviction is nowhere near as secure as when a wily copy engages with a defence lawyer. Sparing a sex victim the ugliness of being forced to recount and have his or her veracity challenged is worth more.
There are other benefits to the guilty plea in these cases. So many offenders deny their crimes until their dying day. Admission of being a sex offender is very dangerous for those going to prison. Even the worst killer considers himself a better person than a paedophile. Sex offenders are targeted in prison. An admission of guilt often seals their fate.
Much easier to continue denial even after the jury comes back. After all, the story goes, most prisoners are innocent. Even after being found guilty by a jury, many maintain that it was only because the jurors were related to the complainant, the judge was having an affair with the prosecutor, the cops were on the take and the defence lawyer was asleep. It’s a much easier life in prison for victims of miscarriages of justice than for confessed paedophiles. They deny their offending, remorselessly appeal their convictions and don’t do rehabilitation courses. The costs multiply exponentially when they are released into the community, as most of them are, primed and ready to reoffend.
There is no doubt that fear of consequences encourage guilty pleas. That’s why the Courts offer a discount. But the flip side is that the fear of the consequences prevents many guilty pleas coming from paedophiles.
Even the lawyers face the consequences. Jostled and abused as they leave court, some have been known to arm themselves, grateful for the security of a sharp blade as they walk through the darkness to their cars after a bleak day at the coal face. Everyone understands vet or doctor is obliged to treat the wicked and the good equally; a panelbeater is not pilloried for fixing bad drivers’ cars. But lawyers are so linked to their clients that not even they are safe as they go about their work. Few understand that a lawyer is ethically-bound not to turn away those that come for help within her area of expertise.
Many see prison as a place for people to be punished and make prison rape jokes about bending over and bars of soap, but none of them would suggest that captive bad dogs should be abused while their owners were being prosecuted. They wouldn’t condone the torture of these dogs, nor putting them in with stronger dogs that would savage, rape or kill them. They’d expect these dogs to be treated well at the pound. Why is it such a stretch to give accord a human such rights?
Until it is safe for paedophiles to plead guilty without fear of rape, beatings or death, we will be stuck with fewer guilty pleas and all the ugliness that flows from sex offenders who deny their crimes. A guarantee of safety while inside would encourage them to acknowledge their wrong doing and have access to the rehabilitative programmes that reduce their risk of reoffending.
Kelly Ellis, Whangarei Labour Candidate, former journalist and current lawyer grubs her living from the criminal justice coalface but dreams of being a better parent and more dutiful partner to her long-suffering family.
Manifestations of problems and solutions, dialogue, and the need for community. http://goo.gl/9PcllT
And how drug abuse is applauded in NZ society http://goo.gl/456QIs
Back again – I remembered another post, pertinent I think. Geek Therapy for Prisoners http://goo.gl/9ryFBe
Thank you Kelly, for raising the issue. I personally don’t have a problem seeing paedophiles punished hard. I’ll be honest – it’s a revenge thing.
What worries me, is the difficulty and struggle just to be heard or investigated in the case of sexual assault. Here the system is in full fail mode. As such I was not comfortable with your advocation of paedophiles being protected, because quite frankly, it already appears they are protected by the system. As you point out, the system make a prosecution difficult, and the system puts the victims on trial.
I don’t want a system were the victims are treated as the criminals and have to face a adversarial approach to finding justice. It’s the nature of how we attain a convictions which is fundamentally flawed. Maybe we should start looking at how we do investigations and how prosecutions are handled. I’d suggest the prosecution process should be taken out of the hands of the police – and put into the hands of prosecutors who have trained as lawyers. I’d also suggest we have judges who ask questions and stop lawyers from putting victims on trial.
I don’t know all the answers, but I agree Kelly – something is deeply wrong with our so called justice system.
Adam – I understand the desire for revenge, but want to make the point that it increases costs, trauma and recidivism rates.
The issues you raise about procedure are currently being debated. A regime similar to the one you talk about may be fast upon us.
Sorry but i dont agree with a single thing expressed there.
No matter the consequence if a pedo wont accept his crime,its noone but his
Great post thanks, no matter the supposed crime everyone is entitled to a defence. As someone who was sexually abused in the late 1950s by a relative I doubt that locking the person up would have made any difference. However I would have liked the person to be made accountable and not to be able to do what they did to any one else. In those days it was just hushed up.
I suspect many of these people are not able to be rehabilitated really, but I think locking them up and throwing away the key is not the answer. I remember seeing a programme on TV about the two longest serving prisoners in Australia one of them had been in there for 40 plus years and was in for sexual abuse of children, the one thing that struck me about his incarceration was that for all those years he had never felt the grass on his feet. These people are human beings whether we like it or not and treating them in this inhumane way is a crime in itself. I think probably there should be a place where they can live in peace but be secure from the public. Surely something in their brain is wired incorrectly.
That was a superb Post . It’s truly comforting to hear from a lawyer with a heart and a soul . A beguiling relationship .
I agree totally . With everything you said .
If there’s one thing I’ve noticed about our wild ride that is Life it is that violence and dysfunction begat’s violence and dysfunction .
This , our hateful and frankly ignorant legal system is bias toward vengeance . The dull minded answer to demands by the dull minded and a vicious and an enduring problem in its self .
It’s not the responsibility for the individual to rise above horrific crime . We’re only human after all . It’s the responsibility of our State to do that unpleasant job . If the State becomes swayed by monied Corporations , then vengeance becomes a tradable commodity and that is abhorrent .
That is what we have . Disaster capitalism .
I wonder ? If you take a monster .More often a product of his/her environment and treat them well . With love and kindness and unravel that which made them monsters ? Would that make a difference ?
I was down in the bowels of a large police station recently and saw the cells for the bad people waiting for court appearances . The cells were scrawled with graffiti and were made of concrete and stainless steel . The place stunk of shit and vomit , the cells were windowless and stark . Brutal .
That’ll learn ’em aye ?
To think that some think that , that will make them better ?
I lament . I really do and it must be awful for you , to have to function within that system .
Respect x
“Many see prison as a place for people to be punished and make prison rape jokes about bending over and bars of soap, but none of them would suggest that captive bad dogs should be abused while their owners were being prosecuted. They wouldn’t condone the torture of these dogs, nor putting them in with stronger dogs that would savage, rape or kill them”
Bad dogs, dogs that maim and kill humans, get put to death.
They don’t exactly get treated nicely at the pound.
However, I don’t advocate this for sexual offenders. But the only reason is our justice system is so broken and hopeless that it would convict innocent people. You can’t have the death penalty if it may make a mistake and kill an innocent person.
So we lock them up instead.
I would say that they should be required to undergo some kind of counseling for rehabilitation, and their counsellors MUST be appraised of the full details of their offending so the offenders cannot minimise and deny it.
If they don’t get treatment then they should never be allowed out. Ever.
And the conviction process? I agree. Its hopeless and clearly not working for way too many survivors of sexual violence. An inquisitorial system rather than an adversarial system would be so much better.
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