Earlier this week The Age reported a haunting story about two girls, Holly and Marissa*, victims of rape as teenagers, who have been denied justice, again and again, over the 21 since that have elapsed since the offending occurred in 1997.
Their rapes occurred in the same shocking way: a man broke into the bedrooms of his sleeping teenage victims who woke to being sexually assaulted. Both Holly and Marissa reported the crimes to police and identified the perpetrator as a man called Peter.
Back in 1997, Peter was charged with the indecent assault of a third victim and the rapes of both Holly and Marissa. However, in the intervening twenty-one years, neither of those rape charges have been heard by a court and, based on a recent judgment made by Victorian County Court judge Paul Lacava, they never will.
When Peter stood trial in 1999, he was faced only with charges of indecent assault, for which he received an eighteen month suspended sentence, meaning he did not serve any jail time.
The rape charges were forgotten about – by the justice system – until 2012 when a police detective named Matthew Gildea came across the charges which were recorded as unresolved.
He came across the unresolved charges because the same man was being investigated for stalking. Since his trial and suspended sentence in 1999, Peter had also groomed and sexually assaulted a six-year-old and a seven-year-old.
He spent three years in jail for these offences, but by 2012, when the stalking charges emerged, he was back out on the street, living with a six-year-old. Legally he was required to declare this to police as a registered sex offender but he did not.
When Gildea examined the unresolved rape charges from 1997, there was no clear answer to what had happened.
Peter insisted they had been taken off his charge sheet as part of a plea deal, but the police said they never offered such a deal.
In an attempt to seek justice for Holly and Marissa, Gildea began a push to have the rape charges tried and in 2017 Peter was charged with several counts of sexual assault, indecent assault and sexual penetration of a minor, included the offending against Marissa and Holly.
Using his discretion, judge Lacava decided that it would be “unfair” on Peter to make him stand trial for the rapes 20 years after they occurred so he ordered a permanent stay on these charges.
It means Holly and Marissa’s allegations will never be heard in a court of law.
Judge Lacava described the attempt to bring the 1997 rape charges to trial as “irritating”. Without the rape charges, Peter was found guilty of three counts of engaging in sexual penetration with a minor and sentenced to three years’ jail time. If he gets parole, Peter could be out of prison again in just two years – by 2021 at the latest.
This story offers insight into the many stages at which the law can fail rape victims.
That a judge – when faced with a known sex offender – would decide an offender should not face trial for these rape charges is alarming.
One undisputed aim of the criminal justice system is to protect the community. How, then, can we accept that a judge’s decision can wipe a man’s slate clean of all rape charges, meaning he will, very soon, once again be at large?
Twenty years of giving statements to police, Holly and Marissa have been told for certain that their rapist will never stand trial.
Without the rape charges, the case against Peter is significantly less serious, which is why he’s only ever been sentenced to very short prison terms.
His abuse of women and children continued after he was released in 2008, so there is no reason to assume it won’t when he is released again in 2021.
Most sexual offenders amass up to 50-60 victims in their lifetime. How will we explain this failure to his future victims? To their parents?
How will we explain that even though the police and the courts system had enough evidence to charge a man with raping two sixteen-year-olds, he was never punished for it simply because a judge decided it would be “unfair” on him to revive these historical charges?
How can we look Holly, Marissa and any other victim – past or future – in the eye and say that we are more concerned about what is fair to him than we are about what is fair to them?
The recent decision shows how damaging judicial discretion can be when it comes to individual judges’ attitudes about sexual assault.
But the loss of the rape charges in the first place betrays an even broader systemic failure. The only explanation for simply ‘losing track’ of rape charges is that the police handling the matter didn’t consider them to be particularly serious.
I can’t imagine, in the aftermath of a murder, police admitting the offender had been charged with murder twice before, but was never punished, because the police forgot about it and left him free to continue his offending.
This occurs in sexual assault cases because we fail to treat them as seriously as other violent crimes.
It’s possible that Peter is telling the truth, and that he was in fact offered a plea deal that would erase the rape charges if he plead guilty to the indecent assault.
This scenario is just as damning: it lays bare, once again, the lenient attitude police take towards sexual violence, and shows that police were willing to give the green-light to let a man alleged of raping two teenaged girls walk free, again and again.
The maximum prison term in Victoria for each of the offences against Holly and Marissa is 10 years. He will never serve a single day of it.
Conviction rates for rape are alarmingly low. In Australia, it is estimated that only 3% of rape complaints result in conviction. But it gets worse. A 2010 report in the UK showed that only 38% of rape cases that secured a conviction – so only 38% of the 3% – included a conviction for rape itself. The majority were convictions for lower-level offences agreed upon in a plea deal, resulting in more lenient sentences.
The legal profession refers to crimes with conviction rates this low as behaviour that is formally illegal but generally socially accepted. Holly and Marissa’s case proves how true this is.
The law needs to be reformed so it is tougher on sexual assault, but that’s not all.
In the cases of Holly and Marissa, the law was clear as to the appropriate severity of punishment for the crimes committed against them and the evidence was compelling. The issue was that, for 21 years, individuals in the police and the courts decided not to take these charges seriously, and found ways to evade the 10-year term set down by the criminal code.
The law can do little if the individuals enforcing it do not consider rape a serious crime.
It is alarming that in 2018 a judge would openly use his discretion to prevent a perpetrator from being charged with rape. It is alarming that the police lost track of the rape charges in the first place. It is alarming that Holly and Marissa, now in their thirties, will never get their day in court.
The leniency of the letter of the law is not enough to explain a failure of this scale – it goes deeper than that. It proves that too many individuals still believe that rape is not something to be taken seriously as a criminal offence.
Until our attitudes change and we consider rape to be as serious as any other violent crime, we will continue to fail victims like Holly and Marissa and we will continue to put future victims in harm’s way.
*Not their real names.