A legal expert on child sex crimes argues the Tasmanian case illustrates screaming gaps in the law. Professor Caroline Taylor AM from Edith Cowan University says Australian laws and the way they’re interpreted offer greater protection to sex offenders rather than shielding children from abuse.
MARK COLVIN: One of Australia’s leading legal experts on sexual violence against children says the case in Tasmania illustrates gaping holes in the law.
Professor Caroline Taylor AM is the Foundation Chair in Social Justice at Edith Cowan University.
She told Emily Bourke that Australia’s laws did more to protect perpetrators of sex offences, than the most vulnerable: children.
CAROLINE TAYLOR: As they stand the law negates the protection of children, because it unfairly puts the onus and the burden of proof on the prosecution to prove that these men knowingly thought the child in this case was a consenting adult. So basically it’s a pseudo consent law.
EMILY BOURKE: But isn’t that the fault of the legal system, or indeed the way cases are handled before courts rather than the law itself?
CAROLINE TAYLOR: It’s an issue of how the law is framed and how the law is being interpreted I think.
In certain offences such as traffic offences we argue that ignorance of law is not a defence. But when it’s even more serious about the rape of children, we suddenly interpret it, you can claim ignorance if you claim a defence of the child you believed was an age of consent.
This is a very, very clear case of the law failing to protect a child and has aided and abetted the sexual offending of 100 men against a child and that if we can’t somehow garner urgent reform – I mean the Tasmanian Government should be calling itself together within the next 24 hours and making urgent reform of that kind of law and legislation to ensure that that kind of gap can never ever be relied on ever again.
EMILY BOURKE: Well how do you rephrase or reframe the law?
CAROLINE TAYLOR: What you do is what has been done in other states including Victoria around the law of rape and consent, where arguments have been that the onus should not be on the Crown, the onus should be on the defendant.
If the defendant is going to claim that he believed a 12-year-old was indeed a 17, or an 18-year-old, the onus should be on the defendant to prove that he believed that that child was 17 or 18.
EMILY BOURKE: Is the sort of law reform you’re talking about, is that realistic?
CAROLINE TAYLOR: Absolutely. In Sweden, Iceland and Norway, and South Korea, you can be convicted for buying sex services – that is for buying the services of a prostitute who is a trafficked woman. Now the law requires that if you claim you didn’t know they were trafficked you have to prove that.
What we’ve got Emily, is a stand-off where we say first of all the legal system ill-treats children so badly we don’t want to put them through the system. Secondly we’ve got a law that says these men can fall back on the caveat that they didn’t know and it’s up to the Crown to prove it.
What it means is we have unworkable laws that fail to protect children, we have a legal system that acknowledges that it traumatises children and therefore the loser in every case is children.
We simply have to look at cases like this and other cases where we continually get tied up in law and legislation and a legal process that we know can be so harmful to children that we avoid prosecution for that reason.
And in the end, that’s not a good reason to not prosecute; that’s reason for reform, not for failure to prosecute.
MARK COLVIN: Professor Caroline Taylor from Edith Cowan University, speaking to Emily Bourke.