Written by Josh Taaffe. Solicitor & Accredited Specialist, Doogue + George Defence Lawyers
Sex cases are beleaguered by many factors and exceptions, arising from both the complainant and the defence.
Often, these issues come about because of the intimate nature of the details and either party unwilling to be forthright about their sexual predilections.
The waters get muddier when the case concerns young people still exploring and understanding their sexuality.
We had a case recently where our client, a young teenage boy, attended a sleepover birthday party with friends. It was alleged, by one of the guests, another teenage boy, that our client sexually assaulted him by touching his genitals when he did not consent. The complainant stated that he was scared of our client and was too terrified to protest. The complainant made his allegations to friends and family the day after the party.
Our client pleaded not guilty.
At the hearing, under cross-examination, the complainant conceded that:
- The accused had approached him gradually.
- He had not specifically communicated that he was not consenting.
- Once he told the accused “he didn’t want to,” the accused stopped touching him.
- He followed the accused to the bathroom after the first alleged assault.
- He told the accused “I’ve never done this before,” and asked the accused “Does this mean anything to you?”
- He had engaged in conversations with the accused about his sexual interest in men and shown him gay pornography.
- If the accused had had a romantic intention rather than interest in a sexual encounter, he might have been interested in his advances.
These and other concessions made during the case demonstrated the true circumstances of the incident, which obviously, resulted in the acquittal of the accused.
Justice was ultimately realised, but my issue with these types of cases lies here:
Had the police thoroughly investigated the complaint and asked more challenging questions when interviewing the complainant, they would have come to the obvious conclusion that there were no charges to be laid against our client.
And, what transpired from this was a long court case, forcing two young people to publicly declare intimate details of their sexual exploration. While they were undertaking senior high school exams.
Had the police approached this with a touch more scepticism or reservation and perhaps asked questions that were more balanced or skewed to finding the actual context of the alleged offending, they could have made the call not to bring the case at all…
And kept the private details of two young boys out of the court room.
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