gallery Historic sex cases and present-day issues

Written by Bill Doogue. Partner, Doogue + George, Melbourne Criminal Lawyers.

We are seeing a recent increase in the number of historic sex cases attracting such high levels of penalty. We observe that the community revels in large sentences and want retribution to be severe. Through online news commentary we read as the public cries out for harsher judgment and longer gaol terms without really considering the consequences of heavier sentencing.

The latest case where offences committed 30 – 40 years ago attracts a gaol term, this story: http://www.theage.com.au/national/after-42-years-boarding-school-molester-finally-brought-to-justice-20110308-1bltv.html highlights a 42-year-old matter that has resulted in a gaol term for the offender. We are not commenting on this particular case as we do not know the facts and are not saying that it is a good or bad result. It is simply an example of one of those increasing number of cases where offences committed 30 – 40 years ago attract gaol.

The reality is that, in historic sex cases, to run a trial expends taxpayers money, takes up the Courts time and often drags the victim through an experience that, quite commonly, they have worked through and put behind them. Often victims say that they are just after acknowledgement by the person that they did something wrong all those years ago but don’t wish them to serve any gaol time.

In advising clients it is quite brave to indicate a plea to any historic sex charges would not carry a gaol term. The potential penalty is often the first issue that the client wants to discuss before giving detailed instructions about guilt or innocence.

The problems lie herein. A person who may have led an otherwise blameless life since they were young and often has a family and a good job is forced to decide whether to run a contested jury trial or to plead guilty and go to gaol.

If the matter goes to trial to be proven, the reality is that over the passage of time details of the case become blurry, reliant on memories that fade. Juries often display a level of skepticism about charges laid decades later so these become very winnable cases. The scales can often tip in favour of the defendant and the unfairness lies in the ability to prove, or disprove, an alibi that is decades old or that calling other witnesses is not possible.

The outcome? As the system increases penalties, it decreases the likelihood of satisfactory outcomes.

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