Proposed travel ban for pedophiles

News  is out today that the Australian government, at the urging of HH Derryn Hinch, will be taking passports away from convicted pedophiles.  It is estimated that over 20,000 convicted sex offenders on the National Child Offender Register may lose their passports or their eligibility for them.

It’s a slippery slope, and we seem to be rushing headlong down it.  Here is one comment by “Mark II” on that story:

I think it’s a great initiative – I am no supporter of this government but I think this will sail through with bipartisan support. In fact, I’d extend it further, and say anyone convicted of a trafficking offence for drugs or serious financial misdemeanours should be barred from travelling, too. I’m not talking about a recreational marijuana user or kid who’s swallowed some E down the club – but anyone selling, sorry, you lose the right to be tempted a la Corby and the current clone. And – if you rob your employer or clients and go to jail for it – likewise. No escaping overseas to start anew and avoid your garnishee responsibilities.

At  least “Mark II” shows some awareness of the possible blanket-reach of such measures.  Good luck to him in expecting that the authorities will draw the right line between serious and minor offences – the current approach to even trace elements of drugs (which provide no evidence of intoxication or impairment) in roadside drug tests is a case in point.

Others cheerfully propose even more radical measures without such awareness.

My own feelings are more in line with this comment, by “Jack” (though “scum” is not a word I would choose to use even of people who do very bad things):

I agree child sex tourists are scum. But we need to be careful with populist blanket legislation because, as we have seen, it can have unintended consequences and it can impose excessive punishment on those individuals who are not likely to reoffend. This is why authorities, even in the USA, have questioned the fairness and effectiveness of blanket sex offender registers. So I’d rather see a targeted register, with judges having the option of putting a name on it.

 

If you follow the jurisprudence in NCAT and other tribunals dealing with applications for Working with Children Clearances (rough selection here), you will soon discover that a very broad range of people commit offences against children.  Only some of these are indicative of a settled tendency to abuse children; many others are products of specific situations which are not likely to be repeated or where the person convicted is likely to rehabilitate and has by now shown that to be the case. These, include juvenile “sexting,” obsessive curiosity in the face of the internet, difficult family and personal circumstances, immaturity and loneliness.

There is a whole heap of bus drivers who have done something wrong within their own family, often many years ago, but who have driven buses without incidents for decades, who are currently been deprived of their employment even though the likelihood of their offending against someone outside the family must be very small – as their incident free record since demonstrates.  They go to the tribunal to try to get a clearance but often fail because they lack the resources to mount a proper case.

Some people who have pleaded guilty many years ago to what then seemed a minor offence (which they might have defended) must now regret that decision bitterly.

To ban someone for life from leaving the country is a very simplistic response to a wide range of offences.

If there are to be travel bans, it would be better if these were imposed on a case by case basis when there is a real risk; they could be limited by time or subject to some procedure for review/extension.

I realise that whilst this could be done going into the future for fresh offences, it would leave unaddressed the question of historical offences.

It is not easy to see how this can be addressed.  The many difficulties just expose to me the fundamental wrongness of imposing a civil disability retrospectively in a blanket way.

Cases of notorious sex offenders in South-East Asian countries (mostly) are rightly a matter of outrage, but they must be a very small number compared to the 20,000+ on the Child Sex Offenders Register (plus those whose offences occurred too long ago for them to make it on to the register).

One possibility would be to impose a more selective ban, targeted to those with historic offences whose travel activities indicate repeated travel to “child sex tourism” destinations.  In the future, this would require more rigorous collection of destination information for overseas travellers, which at present is mostly based, I expect, on self-reporting on travellers’ return.

Whatever will be done will involve some overreach, and even if there is a mechanism for appealing against it, will inevitably work against the less well-resourced.  It will also work against people with family overseas who have legitimate reasons to visit them and for whom the usual assumption (and Government attitude) that a passport is a privilege rather than must be questionable.

In the meantime, we can expect charges of offences of this nature to be defended more vigorously than ever, with attendant trauma to complainants/victims.  This is already happening.  Even when there is a plea of guilty, the process of investigation (to ensure nothing worse happened) and prosecution has its own Heisenberg effect, as in the case of Christopher Ryan Jones which led to victim impact statements from victims who would probably otherwise have been happily oblivious of the wrong done to them.

 

 

 

 

 

Circumcision of our Lord (traditionally 1 January)

This is from a series of bas-reliefs depicting the life of Jesus from the arcade in the choir at Chartres. I have also derived an innocent (I hope without conceivably causing offence to any reasonable person) amusement from this, as also from a hymn commemorating the occasion (here as translated and altered a little):

1. O blessed day when first was poured
The blood of our redeeming Lord!
O blessed day when Christ began
His saving work for sinful man!

2. While from His mother’s bosom fed,
His precious blood He wills to shed;
A foretaste of His death He feels,
An earnest of His love reveals.

3. Scarce come to earth, His Father’s will
With prompt obedience to fulfil,
A victim even now He lies
Before the day of sacrifice.

4. In love our guilt He undertakes;
Sinless, for sin atonement makes.
The great Lawgiver for our aid
Obedient to the Law is made.

5. Lord, circumcise our heart, we pray,
And take what is not Thine away.
Write Thine own name upon our hearts,
Thy Law within our inward parts.

6. O Lord, the Virgin-born, to Thee
Eternal praise and glory be,
Whom with the Father we adore
And Holy Ghost forevermore.

In fact, this hymn forms part of a long tradition, recounted in some detail here, where I learn that Thomas Aquinas found “not one, two, or three reasons [why Christ should have been circumcised], but seven:”

First, to show the reality of his human flesh against the Manichee who taught that he had a body which was merely appearance; against Apollinarius who said that the body of Christ was consub stantial with his divinity; and against Valentinus who taught that Christ brought his body from heaven.

Second, to show approval of circumcision which God of old had instituted.

Third, to prove that he was of the stock of Abraham who received the command about circumcision as a sign of the faith which he had in Christ.

Fourth, to deprive the Jews of a pretext for not receiving him had he been uncircumcised.

Fifth, to commend the virtue of obedience to us by his example; and so he was circumcised on the eighth day as was prescribed in the Law.

Sixth, that he who had come in the likeness of sinful flesh should not spurn the customary remedy by which sinful flesh had been cleansed.

Seventh, to take the burden of the Law upon himself, so as to liberate others from that burden……

It’s a cheap shot, I know, but I can’t help thinking that, lacking the internet or television to distract him, old Thomas had waaaaaay too much time on his hands to think about this.

A bad mother

In today’s SMH, (in this case I need to reproduce the whole story)

A WOMAN has been jailed for at least nine years for forcing her daughters aged six and nine to perform sex acts on each other, photographing them and emailing the pictures to an American man she met over the internet.

Judge Jennifer English said the photographs were stomach-churning and described the woman’s conduct as vile.

“It is almost incomprehensible that a mother of two young girls could behave such a way,” she said yesterday.

The 41-year-old Sydney woman was arrested after US police found her boyfriend’s laptop and alerted NSW police. The woman pleaded guilty to eight charges.

The District Court at Penrith heard the woman began emailing the American in early 2005. At first he asked her to think of games for adult sex parties. Then he revealed a foot fetish. Soon she was masturbating on webcam.

He asked her to photograph her 13-year-old niece naked. She had told the girl: “If you do this, I will buy you a phone and some PlayStation games.” When the teenager refused, she had brandished scissors and threatened to cut her clothes off.

The emailing stopped after the woman resisted the man’s request to photograph some local boys, but contact resumed in early 2006. He asked her for explicit photographs of her daughters, making suggestions about poses and dress.

She said: “You know me, I will do all that I can.” In June, she picked her daughters up from school and told them they would have some fun and take some nude pictures. The next day she emailed the photos to the American.

Judge English said the woman was intelligent and articulate. She studied at university and worked in hospitality before opting to be a full-time mother.

Initially, she failed to accept the gravity of her crime. A psychologist reported she believed her children had not been harmed by the photographs because she said it would not happen again and told them not to tell anyone.

She blamed the American for coercing her. She was a typical untreated sex offender, the psychologist found, and needed treatment.

Earlier this year, however, the woman saw the photographs again and was shocked. They were more graphic than she remembered. She co-operated with authorities because she “needs to stop [the man] doing this to anyone else”.

Judge English said the woman was now “truly remorseful and contrite”.

But her behaviour had been “outrageous and disgusting”, and the girls were violated in the “sanctity of their own home”. The children were incapable of standing up for themselves against the wishes of their mother.

The woman was sentenced to 13 years and nine months jail, with a non-parole period of nine years. She will be eligible for parole in 2015.

Now, I don’t know exactly how disgusting these pictures were or how terrible the sex acts which the girls were made to commit upon each other were, though commonsense or maybe my lack of imagination would suggest that the scope would have been relatively limited. But for an episode which, so far as the girls were concerned, occurred overnight, even if one adds the compounding offence of then forwarding the pictures to the boyfriend, a non-parole minimum sentence of 9 years seems very long indeed. People can kill people as a result of an unlawful and dangerous act and spend less time in gaol than that. However much the children were harmed by this episode, having their mother locked up for 9 years (even if she is a very very bad mother) will probably harm them much more.

Need the punishment for being a bad mother really be so severe?

 Afterword

At least one correspondent to the SMH feels the same:

Punishment won’t help healing

As a GP and mother of three I am sure I’m not alone in feeling sad and repulsed by the actions of a mother against her children (“Mother forced child sex acts for man online”, April 5-6). However, my sadness only deepened on hearing of her lengthy sentence. Surely now what her children most deserve is the opportunity to heal. Must we not ask what is more damaging – a single incomprehensible act without intention to harm, or a childhood living with the daily shame and the absence of a mother, however inadequate she may be? I hope, for the girls’ sake, that our justice system got it right.

Melissa Finch Cooks Hill

but the classical retributive [retributory?] view has also got a guernsey:

Poor excuse for a mother

Melissa Finch (Letters, April 7) writes that the action of the mother who forced her children to perform sex acts for a man online was a “single incomprehensible act”. How do we know this? She says there was no “intention to harm”. How could there be no intention to harm with this reprehensible action? Let this poor excuse for a mother serve her rightful time, and may her poor children find some solace in the arms of a loving and eager family.

Rosemary O’Brien Georges Hall

When a mother uses her children to commit disgusting perverted acts for pedophiles without any coercion from that monster, she abandons the right to be a mother and should be punished accordingly, as the justice system found.

Michael Fogarty Mortdale

The second of these letters, in particular, appears to me to owe much to traditional views of children as the possessions of their parents, to be forfeited in the case of parental misconduct. There is a glimmer of this in the first letter also, with the declaration that the children should “find some solace in the arms of a loving and eager family.” Yet this woman will always be these children’s mother, their children’s (if any) grandmother, etc etc. Is destroying this really a proportionate response? It seems to me like a way of deepening and perpetuating the scar. I suppose this is just a particularly florid example of the general dilemma about unfit parents and whether to remove children from them. The facts given in the original story just don’t enable us to tell how typical or atypical the incident which brought the mother to the attention to the courts was. It still seems odd to me that the mother could probably have burnt the children with an iron, or broken their arm in a beating, and suffered less punishment and possibly even only temporary deprivation of her children.

Which is why I am suspicious of language like “disgusting perverted acts for pedophiles.” That is just knee-jerk reaction. Here (rather like false imprisonment when you are asleep), the pedophile was far far away and the children would have been totally unaware of him. Now, of course, neither they nor their children (if any) will ever forget.

After after word: everyone has a view (8 April, SMH)

Two sets of rules

A mother takes explicit photographs of her daughters and emails them to a man in the US (“Mother forced child sex acts for man online”, April 5-6). After describing the photographs as “stomach-churning” and the mother’s actions as “vile”, the (female) judge sentences her to a minimum of nine years’ jail.
The NSW Crown prosecutor Patrick Power is caught with hundreds of child porn images on his computer. The (male) chief magistrate describes the images as “distressing and disheartening”, with one video in the “worst category of child porn”. He is sentenced to six months’ jail.

The disparity raises many questions. What is the difference between supplying pornographic images of children and fuelling demand for them? How does the socioeconomic standing of the mother differ from Power’s? To what extent does the gender of the judge and magistrate influence the sentencing? What would the woman’s sentence have been had she, like Power, gathered 59 character references from “high-achievers”?

Sexual exploitation and abuse of children do not recognise social and gender divides. Neither should the subsequent punishment.

Anthony Johnsen Newtown

Indeed, Melissa Finch (Letters, April 7), we should feel repulsed and sickened. I wonder if you would feel as sympathetic to the perpetrator and question the imposition of a jail term if the headline had read “Father forced child sex acts for man online”?

Iain Martin Erskineville

It’s a spiral of moral panic here, imho.

Mob justice

I read on the 2GB website that:

A campaign by Ray Hadley and his listeners to rid Carlingford Court of a tenant, convicted of indecently assaulting an employee, has been successful.

This week EMRAN AHMED, the owner of Seafood Lovers at Carlingford Court was placed on a good behavior bond after he fondled a teenage staff member’s breasts and bottom while at work.

GPT Property Management Pty Ltd, as manager of Carlingford Court, has issued a letter to the tenants of Seafood Lovers at Carlingford Court, advising them of their intention to terminate their lease and retake possession of the premises.

I found this because yesterday I came across a report of the case which Mr Ahmed and his wife have brought in the Supreme Court to try to stop their lease being terminated.

Here is a little more background from the judgment of Justice Barrett:

5 On 25 July 2007, the male plaintiff was convicted of an offence against s.61N(1) of the Crimes Act 1900 described as “aggravated indecent assault” against a seventeen year old girl who was employed at the shop and who was under his authority. On 7 November 2007, he was sentenced to imprisonment for twelve months, which sentence was suspended upon his entering into a bond to be of good behaviour for twelve months. The offence took place between 6.30pm and 7pm on 27 January 2007 at the shop premises. The male plaintiff has initiated an appeal against both conviction and sentence.
6 On 28 September 2007, the plaintiffs received a letter purporting to invoke certain provisions of the lease. The letter was as follows:

“Dear Mr Emran Ahmed and Mrs Kim Ahmed
Re: Notice of Breach of Covenant
Notice to Lessee to Remedy Breach

Lease: from GPT Funds Management Limited (‘the Lessor’) to Emran Ahmed and Kim Ahmed (‘the Lessee’)
Trading As: Seafood Lovers
Premises: Shop 126 Level 1, Carlingford Court
We refer to the Lease of the Premises and to the following covenant by the Lessee contained in the Lease:
Clause 21.1 (Your behaviour)
The conduct the subject of Mr Ahmed’s recent conviction constitutes a breach of clause 21.1 as Mr Ahmed engaged in conduct which was dangerous, annoying, offensive or illegal or which interfered with other people in the centre.
The Lessor hereby gives the Lessee notice pursuant to clause 50 of the Lease.
The Lessor requires the Lessee to remedy the breach within a reasonable time and to respond to this notice within fourteen (14) days to advise the Lessor of how the Lessee proposes to remedy the breach.
If the breach is not remedied within a reasonable period, the Lessor will take such action as may be legally available to it. If this is necessary, the legal costs associated with any action taken may be borne by the Lessee. The Lessor reserves its rights in relation to other breaches of the Lease.
Please contact Lucinda Cowdroy on 8239 3618 for any enquiries.
Yours faithfully
(sgd)
Nita Malhotra
Legal Counsel”

Clause 21.1 of the lease provided that ““You must not do anything that is, or may be, dangerous, annoying, offensive or illegal or that may interfere with other tenants or people in the centre or adjacent buildings.” Such terms are reasonably commonplace in leases – they can be relied upon to evict tenants who are running a brothel, or a speed-manufacturing plant. As the letter suggests, other terms in the lease empower the landlord to serve a notice on a tenant to “remedy the breach” failing which the landlord can bring the lease to an end. But, if the breach consists of an act of indecent assault which happened 6 months ago, how can you remedy it?

 Mr Ahmed and his wife have quite a good argument that, where the breach is a one-off act such as this which cannot be remedied, this notice procedure is not applicable, and a landlord can only terminate the lease if the breach by Mr Ahmed was what is called a “repudiatory” breach, that is, a breach of a very important condition or one which by its nature indicated that he and his wife did not intend to observe the conditions of the lease in the future. 

The general policy of the law in relation to leases is to protect tenants from losing their leases on the basis of technical breaches of the lease.  This is called “relief against forfeiture.”  This is because a tenant’s lease is a kind of property in which a tenant may have made a substantial investment, which the landlord should not be able to take away (which will often confer an undeserved benefit on the landlord) on technical grounds.  For example, in the case of Mr and Mrs Ahmed’s case, termination of their lease would lead to the loss to them of the entire value of their business, which they may have built up over a number of years and also paid a substantial amount of money for.

As Justice Barrett pointed out, clause 21.1:

“is not, in terms, confined to activities on the premises, so that a tenant who engaged in parachute jumping or some other dangerous pastime in his or her spare time might, on a strict reading, breach the provision. Even if it the provision is to be construed as confined to conduct on the premises, it would cover, for example, a tenant who, while sitting alone in the premises, defaced a $10 note or made an intimidating telephone call or engaged in a game of Russian roulette with a partially loaded revolver. The first two acts would be illegal and the third would be, at the least, dangerous.”

The problem for the landlord and for other tenants in the shopping centre, however, was that Ray Hadley’s campaign was apparently having an effect on the shopping centre as a whole and in particular on the neighbouring shops.  As Justice Barrett recounted in his judgment:

the defendant [that is, the landlord] has received a large number of complaints from members of the public about the male plaintiff’s continued presence at the shopping centre. There have also been complaints from people working in other shops within the centre. People have expressed deep concern that a person they describe as a “child molester” or “sexual predator” is at the centre, apparently with the sanction of the defendant.  

18 Some people have said that they will not shop at the centre while the male plaintiff remains there. Others have said they will boycott the centre. There was a warning that protesters would visit the site. Employees of the plaintiffs’ seafood business have received offensive phone calls. The police have had to go to the centre on several occasions. Nearby shop proprietors have said that their trade is being affected. They have asked who will compensate them. It appears that many people have become aware of the male plaintiff and his conviction and sentence from comments made on radio station 2GB. 

There were also claims that numbers attending the centre had fallen. A causal link for such claims is almost impossible to prove.  The path of least resistance was an easier one for the landlord to take.  This involved entirely sacrificing the interests of its tenants, the Ahmeds, but shopping centre landlords are not particularly known for their solicitude for individual tenants at the best of times.

The Ahmeds got an injunction preventing the landlord from terminating their lease, but only on giving an undertaking that they would endeavour to sell their business and that Mr Ahmed would not set foot in the shopping centre at all.  Whilst it was said that this would enable the Ahmeds to realise their asset in an orderly way, it is obvious that a forced sale in such circumstances is likely to be under pretty disadvantageous terms.

As Justice Barrett said, Mr Ahmed’s conduct was “serious and repugnant,” but you can draw your own conclusion from the sentence which Mr Ahmed received as to how serious it was in the scale of such offences or in comparision to other offences.  The push by Mr Hadley to drive Mr Ahmed and his wife out of the shopping centre and deprive them of both their livelihood and their investment in the business seems a disproportionate response to what occurred.  It unfairly punishes Mr Ahmed’s wife and family.

Mr Hadley doubtless wins ratings and makes money by whipping up the cries of “child molester” and “sexual predator.”   Leading such mob “justice” strikes me as a pretty miserable way to make a living. 

Lewthwaite

On the occasion of the latest exposure of John Lewthwaite’s place of residence, which inevitably puts him in breach of his parole conditions and back into custody of some sort, Ninglun has linked to some of my earlier posts about knee-jerk reactions to pedophilia and court orders made about serious sex offenders. 

Lewthwaite, who is on parole, is as rehabilitated, on all available objective indicators, as it is possible to be.  Only the nature of his crime could blind people to this.

Though not found insane, Lewthwaite was clearly psychologically disturbed at the time he committed his crimes. This state of psychological disturbance must have been related to or at least exacerbated by his inability to cope with his sexuality in the face of socially prevalent homophobia.  The moment I begin to try to imagine the psychological circumstances of Lewthwaite’s crime, just in terms of what could possibly have motivated him to act as he did,  I see a crazy concatenation of youth, guilt, fear and loneliness.

It is not necessary to go into questions of whether those circumstances lessen Lewthwaite’s guilt and therefore the punishment which he should receive.  He has already served that time.

The key point is rehabilitation and risk of reoffending.

As part of this, we would normally ask: what has changed?  Why won’t he do it again?

Social conditions have changed, if not as much as one would like.  So that is one reason to think it might be plausible that Lewthwaite also has changed.

Just measured functionally: Lewthwaite’s ability to cope with his homosexuality has changed.  He has been living in a relationship with an adult man for several years. He has shown no signs of breaking into homes to have sex with young boys and incidentally murdering their sisters.  It is eminently plausible (in the non-snarky sense) that he has changed psychologically from the young man he was when he committed his terrible crime. 

  

Pedophile “monster” knee-jerk reaction

One of the strange turns in the history of ideas in the twentieth century and now the twenty-first has been first the identification of sexuality as a key element of personality and in particular the “discovery” of infantile sexuality under the influence of Sigmund Freud (though not only Freud) and secondly the increased awareness of long-term psychological trauma, including trauma which is caused by (adverse) experiences in childhood and adolescence.

Of course, when it comes to human behaviour, there is very little that is new under the sun, although the terms in which discussion of such behaviour are formulated are susceptible to reformulation. The notion that events early in life can have a powerful effect is hardly new to Freud, and perhaps Freud’s distinctive innovation was the medicalisation of matters which previously would have been considered to be either religious or moral, even assuming these categories could be considered distinctly. The notion of psychological trauma is itself a medicalisation of the idea of some deep-seated adverse effect.

By whatever route (and in beginning to attempt it, I realise my inadequacy to trace the causes) we have reached a point where one of the key anxieties of the age is the modern monster, the pedophile and his (rarely her) associated vices of child pornography. In my own sentient lifetime, the tide has turned in that respect. As recently as 1981, the Queensland sociologist/criminologist, Paul Wilson, published The Man They Called a Monster, about Clarrie Osborne, a court reporter who had sexual encounters with hundreds of teenage boys (and who taped and transcribed his conversations with them). Wilson, who interviewed Osborne (who committed suicide after he was arrested) and some of the boys, argued that Osborne’s monstrosity and the harmful effects of his actions on the boys were overstated, and even called for the abolishing of age-of-consent laws altogether.

It is unlikely that Wilson would publish such a book today.

Geoffrey Leonard did self-publish such a book. He lodged copies of it in various libraries, including the State Library of NSW and the National Library. He also published it and other books on the internet.

His problem is that, unlike Paul Wilson, he is a “monster.” In 1989 he pleaded guilty to a number of offences involving two brothers, aged 13 and 16, and served 2 or 3 years in Cooma Gaol as a result. One bee in his bonnet is that his offences were characterized as sexual assaults by reason of the legal incapacity of 13 and 16 year old boys to consent to sexual activity (that has now changed in the case of 16 year-olds) but he does not accept that what he did should be called an assault. He does not believe that there should be any age-based sexual consent laws.

Leonard first came to public attention as a result of a charge brought agaist him in 2004 of loitering at St Andrew’s Cathedral. He was acquitted of this charge by Magistrate Pat O’Shane in January 2005.

Leonard had been attending services at the cathedral. In 2001 he had sent a copy of one of his books, Sex and Gender 2001, unsolicited to a 16-year-old boy in the choir. The dean wrote to him stating that he was welcome to attend the services, but that he must “never have unsupervised contact with any of the … members of the choir” and that he should not send boys unsolicited material of any kind.

In 2004 there were further complaints that Leonard had been taking photographs of some boys with his mobile phone, that he had been “following” the choir and that he had spoken to one boy and shaken his hand.  Leonard denies these matters.  The cathedral authorities responded by requiring him to stop attending their services. At the end of the service when they had notified him of this, they called police and he was arrested for “loitering.” His acquittal was essentially on the ground that the time for him to leave the cathedral according to the tenor of the letter which had been given to him had not yet arisen, so that the charge (which is a pretty cumbersome one) was premature.

Following this acquittal, Leonard attracted the attention of A Current Affair. I have provided the link to one (possibly incomplete) story rather than embed the youtube site because it is too excruciating for me to want to have it here. If you can bear to watch it, you may well infer that A Current Affair‘s reporter hounded Leonard for some time in order to provoke a response which, suitably edited, convincingly depicted him as a classic “monster.” In rising to the bait, Leonard certainly did not serve himself well. A story in the Sydney Morning Herald followed (and I presume other press attention). Subsequently, notwithstanding the initial opinion of the police reported in that story that Leonard had done nothing illegal, the full majesty of the law descended upon him.

He is now facing a charge, on indictment in the District Court, that:

“Between 19 September 2005 and 7 March 2006 at Sydney in the State of New South Wales, Geoffrey William Leonard, used a carriage service, namely the Internet, to make available child abuse material.”

This was because (and here I am paraphrasing the summary of the facts in a judgment of the NSW Court of Criminal Appeal) he had a website on which he published material about himself and his involvement in what he called “man-boy love”. The website was used, inter alia, as a vehicle to promote his views that there should be changes to existing laws regarding sexual crimes against children. On the website he published a 124 page article entitled “Punished for Love”. Within this article there was an edited police fact sheet and edited police statements of two males and of their father, concerning the sexual acts committed on the two males (brothers then aged 13 years and 16 years) to which I have already referred. It is the edited police fact sheet and edited police witness statements which are alleged to constitute child abuse material, the subject of the charge.

You can find the relevant statutory provisions summarised in that judgment. The immediately relevant parts are that:

“(1) A person is guilty of an offence if:

(a) the person:

(iv) uses a carriage service to make material available; or
(v) uses a carriage service to publish or otherwise distribute material; and

(b) the material is child abuse material.”

A “carriage service” includes the internet.

“Child abuse material” is relevantly defined as:

“(b) material that describes a person who:

(i) is, or is implied to be, under 18 years of age; and
(ii) is, or is implied to be, a victim or torture, cruelty or physical abuse;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.”

Anyone with the slightest familiarity with police facts sheets and witness statements would be aware that there could be nothing in these materials themselves or the manner in which they described what happened which reasonable persons would regard as being offensive.  For the offence to be made out, it would be necessary to find that the publication of those statements by Leonard in his book changed the way that those events were described so that the way that the events were described was now a way that reasonable persons would regard as being, in all the circumstances, offensive. 

Even allowing for the potential sting in that phrase in all the circumstances, I find it very difficult to see how the publication by Leonard of the facts sheets and witness statements, however offensive people may consider that to be, could relevantly have changed the way that they describe the events in question. 

Incidentally, it is an offence to publish such material in a way which identifies the victims, and given that Leonard does not appear to have been charged with that offence, you may assume that he edited the statements so as not to identity the boys or their father. 

The Court of Criminal Appeal rejected an appeal by Leonard against the rejection in the District Court of various legal challenges by him to the charges.  The decision, which was in effect to leave it all to the jury, is not so exceptional, but you have to wonder if the process should ever have got so far.  I am very disappointed that the Commonwealth DPP should have, against the AFP’s own initial and (at least in my opinion) better  judgment, brought the charges.  I am even more disappointed that a magistrate should have considered that a jury, properly instructed, could convict him. In this area of the law, as with terrorism-related offences, magistrates seem all-too-inclined to follow the path of least resistance and decide that the hard questions are all ones which should be left to the jury.

Leonard is not an attractive character in the eyes of many and his views are, to say the least, unpopular. He is unrepentant, but that in itself is not a crime. It may be that there should be a law against sex offenders publishing writings incorporating evidence used in the proceedings against them, but at present there is no such law.

Leonard may have some defences.  The Court of Criminal Appeal makes some reference to these in its judgment. Conversely, if Leonard has committed an offence, so too may have numerous others, including the gang from A Current Affair if they accessed his web pages. It is also an offence to “use a carriage service to access” such material.

Finally, it is pathetically necessary for me to add that I neither agree with Leonard’s views nor condone his conduct.

Update

Leonard’s special leave application to the High Court was dismissed by Justices Gummow and Kiefel on 24 April 2008.

Further Update

On 5 September 2008, following a trial in which he defended himself unrepresented, Mr Leonard was sentenced by Judge Berman SC to 6 months imprisonment on the offence of using the internet to publish child abuse material. This is to be served concurrently with a sentence of one year (9 months non-parole) for possession of 276 child pornography images found (deleted) on his computer when it was seized by the police, a charge to which he had pleaded guilty.

Miranda is still banging on about History Boys

In her weekly column in the Sun-Herald, Miranda Devine has returned to The History Boys. She says:

Pitched as a new Dead Poets Society, The History Boys is soaked in homoeroticism and features a teacher at a British boys’ school whose students adore him even though he fondles their genitals.

Obviously, she garnered little support or sympathy for her “not-a-prude” friend who took his pre-teen children to an M-rated film. Not even from “reader Helen” who wrote:

“If I had known, I wouldn’t have gone to see a movie about a pedophile.”

 There is something pathetically comical about having to engage in a debate  about the sexual proclivities of a fictional character, but, if only for the record, Hector, the character in question, is not a pedophile.  And only somebody with Miranda’s obsession with the “elephant in the room” could say that the film is “soaked in homoeroticism.”  That description comes out of similar polemics against the kindergarted readers which happen to depict gay or lesbian families – it comes from people who, because they want to see the world bleached of any representations of or references to homosexuality (because they hate it) see any reference to such matters as an outrage.  

With the power of the Sunday press at her disposal, Miranda has been able to elicit one colourful story of an allergic reaction to the film, by the 16-year-old friend “reader Jasmine”.  He “had been abused by his PDHPE teacher when he was 12.”

“Jasmine wrote to say they had thought The History Boys would be like Goodbye, Mr Chips but left, shocked, halfway through. She followed her friend to the toilet and held “his head as he vomited violently”.”

Of course, even rating this film MA15+ would not have prevented this occurring.  Implicitly, Miranda concedes this, because her conclusion is (emphasis added):

“An appropriate classification or honest review might have saved him the torment.”

Because her account of the film is so inaccurate, I don’t think that Miranda has established that the classification of The History Boys was inappropriate, though doubtless many of her readers, who have not seen the film , will probably now think so.

Miranda is now advocating a more complicated array of censorship classifications, as is the case in New Zealand, which provides for, as she puts it:

“eight easily comprehensible ratings: G, PG, M, R13 (restricted to people 13 and over), R15, R16, R18 and R.” 

The difference between this and the Australian system is the addition of the R13, R15, R16 classifications, all of which (unlike our MA 15+ classification: which allows people under the age of 15 to attend with a parent or guardian) are absolute age-based prohibitions.

So, do we want such a censorship system to meet the desires of parents who want the state to ensure that their children, and other people’s children, are prohibited from seeing things which they don’t like?  The case which Miranda mounts (such as it is) indicates why not, because then we will just be buying further into the arguments which we already have where a body whose only obvious expertise is in child developmental psychology erect a series of defensive ramparts against what they see as a flood of undesirable materal, and then, by extension, also apply their own prejudices against what even adults can see.

In the meantime, it is telling that Miranda reaches back to Dead Poets Society as a kind of stalking-horse.  The true elephant in the room in that film was its failure to suggest in any way that such a teacher as Robin Williams’ character is very likely to have been gay, and even if not, in real life he would certainly have been suspected of so being.  Proponents of more rigorous censorship are all about keeping that elephant invisible, so that when or if it occasionally becomes visible, it can be denounced as deviant and offensive, or as “undermining marriage,” etc etc.  There is no word from such people, such as our beloved prime minister, who has the nerve to denounce bullying in schools, of the bullying and other harm which this conributes to.

History Boys and Miranda

Miranda Devine has come out swinging against this film,  and in particular (helped by the subeditors who might, rather than Miranda, be responsible for the headline) the decision of the Film Censorship Board of Review to rate it “M: for mature audiences only.”

It is tempting to say that the warning proved useless in this case, and I can resist anything except temptation.

Spurred by Miranda’s condemnation, I went to see the film (only $8.50 on a Tuesday at Greater Union, George Street).  I had already seen the play when the National Theatre production toured to Sydney last year.  I seriously wondered if Miranda and I saw the same film.

Miranda describes the film as:

“a pederastic fantasy about teachers who fondle their students’ genitals in the nicest way and the boys don’t mind at all”

and the central character as

“Hector, a loveable, obese, married pedophile and pedagogue played by Richard Griffiths.”

Miranda provides a little critical analysis:

“The only fleshed-out female character is the history teacher played by Frances de la Tour, the horsy, gender-neutral giantess Madame Maxime in Harry Potter And The Goblet Of Fire.

She knows about Hector’s proclivities but does nothing.”

This last point is a bit misleading.  The character in question knows about Hector’s proclivities, in a general sense, but at the point where she discovers he has acted on them to the point of fondling (which is pederastic in the sense that he is a pedagogue, but not, I think, pedophilic: the boys are studying for scholarships after completing their A levels, and the one gay boy, who looks the youngest is actually exempt from Hector’s attentions), it is hardly to the point whether she should do something, because the headmaster has delivered an ultimatum to Hector to retire at the end of term.

Miranda also summarises some other aspects of the characters and plot:

“It’s about a British boys’ school in the 1980s where all the students are openly or latently gay. Even the flagrantly heterosexual pretty boy, Dakin, who is bedding the headmaster’s busty assistant, seamlessly switches sides, offering oral sex to Irwin, the slimmer of his two gay teachers, out of gratitude for winning a scholarship to Oxford.”

Well, if that doesn’t open a can of worms!  What on earth does “latently gay” mean?  Only one boy is gay.  The others are prepared to camp things up a bit (hasn’t Miranda ever seen The Footy Show?) and Dakin (who is definitely not gay) offers to let Irwin suck him off – perhaps out of gratitude, but equally, one feels, as an exercise of the hold Dakin has over him.  (It is true that, in pursuit of a cheap laugh, Bennett has another boy, who is religious, say that he will be giving thanks, as he takes it Dakin will be, on his knees, but that is not what Dakin himself says.)

Perhaps Miranda got her account of the film at second hand.  Because she explains the source of her story:

“Last weekend I ran into a friend, who is no prude, reeling out of a suburban theatre with his wife and two preteen children. They had walked out of The History Boys just as straight boy Dakin asks his teacher Irwin, ‘if there was any chance of your sucking me off’.”

Woah! That happens about ten minutes before the end of the movie.  The children had presumably dozed through the references to A E Housman and W H Auden as “nancies” and the fact that Auden had possibly interfered with his students much as “Hector” did.  I suppose they scarcely comprehended (and would therefore have been bored shitless by)the early classroom play-acting scene in French which starts out pretending to be in a French brothel and ends in a field hospital somewhere near Ypres.  They were probably left cold by the analysis of a poem by Hardy about drummer Hodge buried somewhere beneath the veldt.  I don’t know what they had made of the scene where the headmaster told Hector that he would have to resign because a lollipop lady at a school pedestrian crossing had reported that he had been observed massaging his students’ genitals whilst giving them a lift home on the back of his motor bike, the scene where Hector’s colleague, played by Frances de la Tour, roundly denounced him for such conduct, or the scenes where Hector and Irwin discussed the question of how they dealt with their attraction to their students and where Dakin made his first suggestion to Irwin (which was the fore-runner of the apparently just-too-much sucking-off proposition).  I imagine the children, if awake, would have been clamouring to be taken home or to MacDonalds by the time their parents took them out.

Miranda continues:

“My friend felt he had been tricked by the M rating and misleading advertising into taking his children to a grossly unsuitable movie which normalises pedophile behaviour and promotes a world view in which heterosexuality is aberrant, women repulsive and marriage a sham.”

The “marriage a sham” line is a reference to a scene where the Frances de la Tour character talks about what women who marry men like Hector want from such men and what they may or may not know about such men.  Maybe it means that some marriages are sham (which is debatable, in the scheme of things) but it hardly sustains the generalised description which Miranda gives it.

And since when did one “repulsive” woman (not fair to Frances de la Tour, not to mention the headmaster’s buxom secretary) in a film amount to “promoting a world view” that all women in general are so?

I can’t work out at all where the claim that the film “promotes a world view” that “heterosexuality is aberrant” comes from.

To return to Miranda:

“How could the Classification Board get it so wrong? The History Boys has the same M rating as Spider-Man 3, Harry Potter and Kenny, while in the US it was rated R because of “strong language and sexually explicit dialogue.”

This of course begs two or even three questions.  Perhaps the rating of Spider-Man 3, Harry Potter and Kenny is the problem.  The question about the US rating is my “even” third question, but the second question is, how could Miranda’s friends have got it so wrong?  Remember, this film was rated M: that means that it is for mature audiences, but not a film which (MA 15+) persons under 15 are prohibited from seeing unless accompanied by a parent or guardian.  Was Miranda’s friend, though “not a prude” (notwithstanding the distorted account of the film which he appears to have given to Miranda), simply too stingy to pay for a baby-sitter?

Miranda addresses this point further, because she doesn’t just blame the censor.

“With our untrustworthy classification system, movie reviews would usually alert parents to offensive content.

But no.”

She then quotes a number of reviews, and summarises her criticism of reviews in general as follows:

“Review after review neglects to acknowledge the elephant in the room.”

Which she contrasts with the acuity of a well-known journalistic standby (not apparently available to her “by no means a prude” friend):

“Wikipedia has no such blind spot, accurately categorising the movie as ‘pederastic film’ and ‘LGBT (lesbian, gay or transgender-related) film’.”

She concludes magisterially:

You don’t have to object to the movie, just to the inexplicable deception of the audience.

I think the first clause in this sentence is disingenuous.  It is clear that Miranda does object to the film, even if only at second-hand. And a pre-requisite to objecting to the film  (what does that mean even? object to pre-teen children being dragged to it?) would be to understand the film, which nobody could do on Miranda’s account of it. After that, we might be in a position to have a useful discussion about the respective roles of censorship boards and reviewers.

And baby-sitters.