Guest article by Bettina Arndt – published in The Australian today.
Profound changes to Victorian manslaughter and rape laws have resulted in the state featuring one of the world’s most gender-biased, anti-male jurisdictions.
That’s the view of Kenneth Arenson, a retired associate professor of law at Deakin University and a very brave man.
Arenson has written a 68-page, meticulously referenced, scholarly paper making that case, just published in TheWestern Australian Jurist: “The Demise of Equality Before the Law: The Pernicious Effects of Political Correctness in the Criminal Law in Victoria.”
Arenson asks if it is logical, fair or compassionate to treat people who kill for reasons of revenge or thrill, for example, in the same manner as those who kill in response to severe provocation or in the belief that deadly force is required to defend themselves or others. For centuries most Western countries have chosen to make a legal distinction between the two. As Arenson explains, this no longer applies in Victoria, which has chosen to abolish provocation and excessive-force manslaughter as partial defences in murder prosecutions.
The major reason given at the time by then state attorney-general Rob Hulls was the provocation defence was “often relied upon by men who kill their sexual partners out of jealousy or anger”. Arenson argues this represents “unprincipled and gross unfairness” in that the basis for the change in the law was spawned because “one gender appears to have invoked the defence with greater frequency than the other”.
Similar changes to manslaughter have been made in Tasmania, Western Australia and New Zealand, but Victoria leads the charge when it comes to changes in rape law. State parliament in 2014 enacted laws that required a new standard of proof to prove rape. The new standard had been advocated in an article by Melbourne Law School associate professor Wendy Larcombe in an article revealingly titled: “Falling Rape Conviction Rates: (Some) Feminist Aims and Measures for Rape Law.” Larcombe’s language was adopted verbatim in the new laws introduced in parliament.
The consequences of the changes are difficult to describe without the detailed analysis provided in Arenson’s article but in essence he argues Victorian rape laws now contain both a subjective and objective mental element, requiring a prosecutor to prove an accused “does not reasonably believe that (the alleged victim) consents to the penetration”.
In light of fairly recent decisions by the High Court and Victorian Court of Appeal, Arenson contends this amounts to requiring the crown to prove an accused did not act with reasonable recklessness regarding the question of consent which, in legal parlance, is self-contradictory and “all but certain to spawn a new generation of unnecessary and costly litigation”.
He points out the legislation contains the same flaw in relation to a legal standard found wanting by both the High Court and Victorian Court of Appeal. By ignoring these decisions, Arenson suggests state parliament has probably brought in laws that will turn out to be unworkable and create a veritable nightmare for the courts.
What is particularly alarming is parliament would have been influenced by an academic who makes no attempt to disguise her ideological position. Arenson contends that Larcombe’s writings expose “an unfettered hostility towards the notion that all persons are equal before the law, a willingness to embellish the language of key appellate decisions or an unwitting propensity to misstate well-established legal principles, an attitude towards the male gender that is predicated on overly broad, erroneous and pernicious assumptions and recommendations that are parochial, unrealistic and ill-advised”.
The consent laws are only the latest volley in a series of what Arenson calls “pernicious reforms … based upon gender bias in rape and sexual assault cases as evidenced by the fact they are applicable only in cases involving rape and other forms of sexual assault”.
He names other changes including: truncated periods in which to commence trial-and-file indictments, the creation of the “Victorian offence of infanticide which allows women but not men to commit what would otherwise be murder”, and rape shield laws limiting a defendant’s long-entrenched common-law right to put before a court all legally admissible evidence that helps to show they are not guilty of the alleged crime.
What’s fascinating is that in the face of these increasingly draconian laws, conviction rates continue to fall.
Men and women on juries persist in making decisions about the guilt or innocence of men accused of rape or sexual assault, despite these strenuous efforts to tilt the law against them: a small mercy indeed in the face of this onslaught of gender bias.
Read the Arenson article at http://bit.ly/2f7EMNW