Condoning child rape
One can't help but feel a certain sense of unreality when reading that nine men can gang-rape a ten year old girl and get away without so much as a slap on the wrist. In light of the attention given to child sexual abuse crisis in indigenous communities (which was used by the previous government as a justification for sending troops into the NT) it is extraordinary that a Crown prosecutor would not even make submissions requesting custodial sentences for the rapists (aged between 14 and 26), some with previous criminal records.
In light of the DPP's failure to pursue justice for the victim, it is hardly surprising that the court handed down what appear to be ludicrously lenient sentences, including not recording convictions (I am not familiar with the practice in criminal cases, but it would seem anomalous for a court to impose a sentence more severe than that sought by the prosecution). Even so, Judge Bradley's comments that the victim "was not forced" and "probably agreed to have sex" with the perpetrators reveals a staggeringly inappropriate approach to a child-rape case. A ten year old child is by definition unable to "agree" or consent to have sex with anyone for the very reason that makes the crime of child rape so heinous - because she is a child whose developmental stage is such as to disable her from making the choice, because she is incapable of understanding the nature of the act. That being so, talking about her "agreement" to have sex with nine men is nothing short of reprehensible.
Furthermore, how is it relevant that the victim was not "forced"? Force is not an element of the crime of rape and lack of force does not detract from the seriousness of the crime. How does the rape of someone who does not need to be physically forced because she does not understand what is being done to her merit any less condemnation than use of brute force to secure the victim's submission? Is a victim who is coerced into non-consensual sex by means other than physical force any less deserving of protection? Must she put up a physical fight or risk a judge (or a prosecutor) saying that she asked for it, that her rape was not all that serious? Must the rapists slap around a ten year old child as well as fuck her before they are considered sufficiently blameworthy to merit a conviction?
The legal system is not well adapted to dealing with the crime of rape because of the problematic notion of consent, but one would expect that gang rape of a child would not raise such problems. However when a judge makes remarks like those made by Judge Bradley and when a prosecutor does not even bother to ask for a sentence to match the crime, it is clear that even when dealing with child rape the legal system is plagued by inappropriate attitudes.
Incidentally, while I think that Judge Bradley's remarks deserve strong criticism, I believe that the calls for her sacking are inappropriate (as is the behaviour of journalists who appear to have followed her to her home seeking comment on the sentences). Independence of the judiciary is one of the most sacred aspects of our justice system (and rightly so - just consider what occurs in the systems where that independence has been lost) and that independence cannot be maintained if judges are at risk of sacking because their judgments upset the community. The correct remedy for such judicial error is the appellate process, which in our adversarial system ought to have been invoked by the prosecution. When the prosecution does not do its job, one can hardly be surprised that a miscarriage of justice occurs. In the present case the miscarriage of justice is particularly repugnant, but it is not an excuse for making inroads into the principles of judicial independence.
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