Boys Will Be Boys

by Clementine Ford

  ‘I’m not going to argue with you over grammar,’ she snapped back. ‘You’re not putting words in my mouth.’

  Later, one of Jane Doe’s friends gave evidence for the prosecution. Asked why her friend had been so reluctant to go to the police, she replied, ‘Because of what’s happening in this room. It’s daunting, quite horrible and you get blamed. It’s a distressing process.’

  By the time she was allowed to leave the stand, Jane Doe had endured eight days of cross-examination, leading some members of the public to argue that it looked like the alleged victim of rape was the one being put on trial. Her name, used numerous times in a courtroom accessible to members of the public, was quickly leaked on an online message forum. She was accused (as women always are) of trying to ‘destroy the lives of decent young men’. Harrison had claimed in his own testimony that he hadn’t believed her when she told him the events of the night weren’t consensual, and had decided her complaint was motivated by regret. She was upset when he dropped her home, but he assumed this was because Jackson had ‘rejected’ her. Hell hath no fury etc.

  One of the prevailing problems in deciding the outcome of rape and sexual assault trials lies in the baggage that the people charged with making that decision bring with them. What was she wearing? How much had she been drinking? Had she been kissing him? Was she flirting with other men? Had she had sex before? She wanted it, didn’t she? What did she expect? These are all questions that are asked routinely of rape complainants, whether or not they ultimately end up taking their case to trial. Women are expected to be the gatekeepers of sex; if we fail in our duty to do this, we are then held responsible for the actions of the men who breach the borders. How could they be expected to refrain when it was all just laid out there for them? When she made it so easy for them by being there? And look at how she was dressed, with her tits out and her short skirt and all that lipstick she had on. She was practically begging for it, dolled up like that. Why would she bother to make herself look so attractive if she didn’t want to attract someone? A bloke can’t be blamed for giving her what she wanted, just because she woke up regretting it the next day.

  This is also a significant reason why the stories of rape complainants can change during the reporting process. It isn’t just that confusion and trauma muddle their recollection, although this is an important factor. It’s that women who live in the world are all implicitly aware of the requirement that we conform to a brief. When it’s not uncommon to hear people sneer of complainants that ‘she didn’t act like a rape victim afterwards’, it stands to reason that people reporting assaults will try to circumvent that accusation by acting as much like they think a rape victim ‘should’ act in order to be believed.

  In the book Eggshell Skull, Bri Lee documents her time working as a judge’s associate in the District Court of Queensland, attending trials and sentencing hearings for sexual crimes against both adults and children in metropolitan Brisbane and regional Queensland towns. Entering the legal industry as an idealistic young graduate, Lee rapidly became disenchanted as she witnessed the system’s inability to deliver justice to the complainants in cases such as these.

  ‘All the problems associated with the difficulties women face in trying to access justice stem from the fact that the system wasn’t set up to hear them or acknowledge their experiences,’ she told me in an email. ‘Juries expect “evidence” of sex crimes to be clearly damning CCTV footage or 100% accurate DNA samples. In the vast majority of cases the only evidence is witness testimony, and it’s very easy for a barrister to cross-examine a witness until she’s crying and second-guessing herself, or stumbling over her answers. It feels to me like we’ll forever be playing catch-up.’

  Women are still denied any kind of acknowledgment of authority when it comes to defining the impact of things that are done to us. It’s men (and young men of privilege and power in particular, whose ‘promising futures’ loom large when determining the outcomes of rape trials) who are given the right to decide if a woman has consented, even if they never asked for consent and every action they took leading up to and beyond the moment they penetrated someone indicated they didn’t care if consent was present anyway.

  But it’s the fervent belief in male entitlement that forms the foundation of rape culture—entitlement to women’s bodies, to power, to protection and, at last, to vindication. It isn’t enough that men in a rape culture are so often acquitted of sexual crimes against women. The injury that’s been done (apparently) to their reputations and personal pride has to be avenged. How is the vengeance delivered? By the ritual character destruction and ostracisation of the women who’ve tried to hold them to account.

  This is certainly true of the treatment of Jane Doe in Belfast, both at the hands of the lawyers engaged to act for the male defendants and the members of the public determined to punish her for daring to bring a case against them. Lee’s point about the system being inherently set against women’s interests is an important one. At a fundamental level, there is the question of whether or not women’s interests or positions are even understood as existing separately to how men conceive of them. One of the most revealing aspects of the Ulster rape case came for me in the form of an early message sent from Jane Doe to her friend, explaining why she couldn’t possibly have consented to sexual activity. She said, ‘Like I hadn’t even shaved my legs. Had only tanned the bottom of them and my arms. I wasn’t up or ready for fucking anything.’

  All too often, sexual behaviour and ‘provocation’ is judged through the lens of male desire, and this carries over into the courtroom. She is dressed in a certain way that pleases him, ergo she wants him to be pleased. But this fails to take into account the comprehensive conditioning women are subjected to throughout our lives that gives primacy to our appearance and ability to conform to conventional standards of beauty but also instils shame in us about the ways we fail to uphold it. As someone who has grown up aware of how appearance forms one of the most powerful currencies for women, it makes total sense to me that another woman would put it in these terms. That yes, a woman may put time and effort into her outward appearance in order to fulfil the obligations expected of her (and receive a reward of positive male attention)—but that a much clearer indicator of whether or not she intends to have sex that night is if she has coiffed and polished and smoothed the bits of her body that will be seen and touched and, crucially, judged by the male gaze and all its spurious demands the moment her clothes come off.

  Jane Doe may have consented to a party that night. She may even have consented to a kiss. But I believe her when she says she didn’t consent to being ‘spit roasted’ by two men, one of whom ‘allegedly’ inflicted a vaginal tear that caused her underwear to be soaked through with blood.

  The jury disagreed. On 28 March, after a nine-week trial, it took eight men and three women just three hours and forty minutes to return a unanimous verdict of not guilty for all four men and their respective charges.

  After the acquittal of the four men in Belfast, a fierce public debate about rape culture and the legal system ensued. Feminist groups of course argued eloquently against the practice of victim-blaming, the interrogation of rape survivors and the coddling of privileged men protected from the consequences of their actions by their status and a ‘boys will be boys’ attitude. Those with a different opinion screeched into the void about how ‘lying sluts’ and ‘fame-hungry bitches’ needed to be punished for ‘trying to ruin the lives of decent young lads’ who’d done nothing wrong, guvnor. Among the most frustrating comments were those that insisted these young men had been ‘found innocent’, and therefore deserved some kind of compensation in the form of payment from their accuser or even a prison sentence handed down to her.

  There’s no such thing as a verdict of ‘innocent’ in a court of law. Prosecutors are asked to prove their case beyond a reasonable doubt, and a judge or jury is called upon to decide if that has been accomplished. A verdict of not guilty means that, in the eyes
of the judge or jury, the prosecution has failed to prove their case beyond a reasonable doubt.

  This is hard enough to do when dealing with crimes untainted by centuries of patriarchal supremacy and misogynist viewpoints. But when you’re talking about rape trials in particular, it’s impossible to expect that a typical jury of twelve average people has been protected their entire lives from the impact of the rape culture we all live in. If victim-blaming attitudes run rampant in members of the public (and we have ample evidence to demonstrate that this is the case), it’s naive at best to believe that members of a jury are immune to the same preconceived ideas about women’s behaviour and the right of men to ‘make mistakes’—mistakes perhaps even some men selected for jury duty have secretly made themselves.

  And yet, so often it’s the complainants in rape and sexual assault cases who are treated as if they were the ones on trial—first by the police officers they need to convince of the veracity of their claims, then by the defence lawyers engaged to tear apart their characters, and finally by the members of the public who eagerly seize the opportunity to indulge in a spot of good old-fashioned Scarlet Lettering. As the blogger and writer Glosswitch noted in the UK’s Independent newspaper on 28 March 2018, ‘The response is disappointing but not necessarily surprising. After all, who has really been on trial here? Whose guilt, morally if not legally, have we really been trying to prove? Watching the trial progress, it seemed to me the question was never “are these men rapists?”, but always “is this woman a liar?”’

  Claims too that women do ‘this sort of thing’ for fame or money or even (perhaps especially) revenge are also ludicrous. Who would invite the kind of ‘fame’ that sees thousands (if not millions) of people dissect your sex life, your looks, your motivation and even your right to be treated like a human being? Where are the piles of money that are supposed to be the big payday for women who come forward with allegations of rape? And who would willingly submit themselves to nine weeks of an exhausting trial, eight days of brutal cross-examination and a potential lifetime of people calling them names like ‘lying whore’ and ‘evil bitch’ just because they’ve crafted the world’s most irrational revenge scheme? Ditto the obnoxious claim that trials like these are pursued because of ‘regret’—as if anyone would expose themselves to slut-shaming, ridicule, anger, victim-blaming and potentially even violence because they had too much to drink one night and woke up feeling the cringe.

  If you want to talk about evidence beyond a reasonable doubt, those claims simply do not stack up.

  (Aboriginal and Torres Strait Islander readers are advised that the following contains the names of Indigenous people who have died.)

  But the odds are stacked even further against the victims and survivors of sexual assaults if they also happen to be women of colour. In 2011, an Aboriginal woman named Lynette Daley was killed on a beach in northern New South Wales. The facts of the case are among the most horrific I’ve ever seen. Adrian Attwater and Paul Maris, the two men Lynette was with, raped her so violently that she sustained a blunt force trauma to her genital and uterine area, causing her to bleed to death. In an inquest later, a forensic pathologist described her injuries as ‘more severe than those which occur in even precipitous childbirth’.

  It took hours for Attwater and Maris to call the police that day. In the interim, they set to work covering up the evidence of their crime. Attwater dragged Lynette’s body into the ocean to try to wash off the blood while Maris burned all her clothes and the blood-soaked mattress on which she had been killed. When the police arrived, Attwater tried to claim she’d had a seizure while swimming naked in the ocean. They had burned her clothes and the mattress, they said, because ‘they stank’.

  There’s no lens through which you can look at this case and see anything other than a repulsive, deliberately violent attack meted out by two men who raped and killed a woman and then tried to aggressively hide the evidence. On the recording of his phone call to triple zero, Attwater can be heard saying, ‘What a good fucking Australia Day, fuck sake, fucking hell you bloody bitch.’

  And yet, despite the overwhelming case against them, the NSW Director of Public Prosecutions declined to prosecute the pair not once but twice, claiming there was ‘insufficient evidence’. It wasn’t until May 2016, when Four Corners released their report ‘Callous Disregard’, that the DPP was prompted to charge both Attwater and Maris. Five years had passed since the pair had brutally murdered Lynette on Ten Mile Beach.

  Incredibly, both Attwater and Maris claimed that the rape had been consensual. When questioned by police about how such ‘group sex’ unfolded, Attwater replied, ‘These things happen . . . girls will be girls, boys will be boys.’

  Boys will be boys.

  It took a jury just thirty-two minutes to convict Attwater and Maris of one count each of aggravated sexual assault. Attwater was also found guilty of manslaughter, while Maris was found guilty of hindering the discovery of evidence. In December 2017, they were sentenced to a minimum of fourteen years and three months for Attwater and at least six years and nine months for Maris.

  It had taken almost six years for Lynette’s family to secure justice.

  But the infuriating reality is that this isn’t uncommon for Aboriginal people in a country that has consistently meted out violence against them from the very start of colonisation, more than two hundred years ago. As Celeste Liddle wrote for the Sydney Morning Herald in 2016 (‘Think our justice system isn’t racist? Compare Lynette Daley’s case with the kids at Don Dale’):

  It is significantly easier for Aboriginal people to be imprisoned than it is for them to seek justice through the exact same system . . . The imprisonment rates of Aboriginal women have doubled in the past decade, accounting for almost all the increase noted in the female prison population over that time. A reasonable portion of these incarcerated Aboriginal women have also been victims of crime, such as domestic violence. Some may have reported these instances, others probably didn’t . . . [but] what confidence are Aboriginal women supposed to have that our cases will be handled fairly and correctly? How do we know we won’t end up being victimised by the justice system as well?

  Lynette Daley was denied justice for so long precisely because she was an Aboriginal woman, and the system makes a point of looking away even as it pushes them through the cracks.

  ‘No one dreams of their first time being in an alleyway with someone whose name they can’t even remember. No one wants that.’

  In 2013, a man named Luke Lazarus led a young woman named Saxon Mullins away from a dance floor and into the alleyway behind his father’s nightclub. He ignored her repeated protestations that she wanted to go back inside, while attempting to pull down her stockings and underwear. Saxon resisted by pulling them back up. He then commanded her to turn away from him, ordering: ‘Put your fucking hands on the wall.’ She complied. He tried to penetrate her, but had difficulty because (as he allegedly put it) she was ‘tight’. After Saxon told Lazarus she was a virgin, he directed her to get on all fours and ‘arch’ her back.

  ‘I just did it,’ she told the ABC’s Four Corners program in 2018. ‘At that point I was just kind of in [sic] autopilot a little bit. I just wanted to go. And this was the quickest way I thought I could leave. I just thought, “Just do what he says and then you can go.”’

  Lazarus then anally penetrated Saxon. It was less than ten minutes since they had first met.

  The next day, Saxon presented to the Northern Sydney Sexual Assault Service, where the examining doctor discovered a number of ‘painful grazes’ around the entrance to her anus.

  Across town, Lazarus was texting a friend. ‘I honestly have zero recollection of calling you, was a sick night,’ he said. ‘Took a chick’s virginity, lol.’

  ‘Bahahaha. Nice popping [those] cherries. Tight?’ his friend replied.

  ‘So tight,’ said Lazarus. ‘It’s a pretty gross story. Tell ya later.’

  Two years later, Lazarus was convicte
d of having sexual intercourse with Saxon Mullins without her consent. He served eleven months of a three-year prison sentence before successfully appealing his conviction. The judge in his appeal accepted that Saxon hadn’t consented, but didn’t agree it was clear that Lazarus had known this. During both trials, Lazarus was given glowing character references by numerous prominent members of his community, including the mayor for Waverley. He was described as ‘a nice guy’ who respected women and had ‘lots of female friends’.

  This question of consent continues to stump both those inside the legal system and those commentating from the sidelines. Consent is a language that has many thousand more words than just ‘yes’ and ‘no’, but it’s these two that everyone fixates on when determining the strength of a rape complaint. Perhaps she didn’t say yes—but she didn’t say no, either. It’s a thought process that overwhelmingly favours the men most likely to be accused of rape, and the degree to which it will be used to protect them varies according to how much prestige and status their privilege affords them.

  In 2014, the journalist Anna Krien published a blistering exploration of the off-field antics of Australia’s football codes. Night Games took an uncompromising look at the toxic masculinity that permeates a world in which players are considered both gladiators and kings. Marching to war on the battlefields of football stadiums and cheered on by crowds thirsty for blood, these ‘heroes’ duke it out for the pleasure of an audience of thousands. Their commitment and sacrifice at the altar of Football is treated with reverence, and because of this they’re given leave to indulge in the spoils of war once the final whistle sounds.

  And what are the spoils?

  Footy sluts. Star fuckers. Strays. Lying skanks.

  These are the terms that have been used to describe women who’ve made allegations of sexual assault against AFL players over the years, dozens and dozens of whom have been accused and yet only one of whom has ever been convicted. In almost every case, public opinion has been overwhelmingly on the side of the players. Because boys will be boys, right? She was asking for it, she kissed him, she invited him in, she sat on his couch, she lay on his bed, she’d had sex with his friend, she was there, she was there, she was there.