Content warning: this article contains mentions of rape and sexual assault.
Hollywood A-listers Ashton Kutcher and Mila Kunis recently explained why they wrote character references for their friend and former co-star Danny Masterson, to be read by the judge sentencing him for his two convictions for rape.
Kunis wrote of Masterson’s “exceptional character”, and Kutcher said: “He is among the few people that I would trust to be alone with my son and daughter.”
Later the actors explained they wanted “to represent the person that we knew for 25 years, so that the judge could take that into full consideration”. However, they had not intended “to undermine the testimony of the victims, or to retraumatise them in any way”.
The context of Masterson’s crimes was institutional: he and the victims were members of the Church of Scientology. The prosecution alleged that he used his status in the church to enable and then conceal the rapes.
Earlier this year, Jeffrey “Joffa” Corfe, a legendary Collingwood AFL club fanatic, was sentenced in the Victorian County Court after pleading guilty to raping a 14-year-old boy in 2005, when Corfe was 44.
Corfe, claiming to be only 30, had groomed the boy online, enticed him to his home and engaged him in oral sex. He could not legally consent, as Corfe well knew. The long-term traumatic impacts on the boy have been profound.
The sentencing judge called Corfe’s crime “depraved”. He then turned, as the law requires, to consider any “mitigatory matters” that might cause him to reduce the sentence he would otherwise order. These matters include “previous character”, picking up general reputation and “significant contributions made by the offender to the community”. If these exist, the judge is duty-bound to turn them into a discount.
Corfe had a large pile of evidence attesting to his good character, including a reference from Father Bob Maguire, who offered his “unconditional support of Joffa”. The Epilepsy Foundation, for which Corfe had volunteered, wrote that “the world is a better place with him in it”. There were other matters in the balance, including Corfe’s age and health.
The judge ended up giving him a suspended sentence of 12 months’ imprisonment. He walked out of court effectively a free man.
There is nothing particularly exceptional about either of these cases; character evidence is standard in criminal sentencing practice. All Australian states and territories allow or mandate that convicted rapists, including child rapists, get the benefit of their “otherwise” good character when it comes to sentencing.
Harrison James and Jarad Grice are child sexual abuse survivors who earlier this year launched a campaign called “Your Reference Ain’t Relevant” to lobby state and territory governments to change their sentencing laws. Their first target was NSW.
Under NSW law, one of the mitigating factors for any offence is that “the offender was a person of good character”. There is a special provision stipulating that, for child sexual offences, the good character or lack of previous convictions is not to be treated as a mitigating factor “if the court is satisfied that the factor was of assistance to the offender in the commission of the offence”.
James and Grice argue that the quoted words should go altogether, so that character evidence will be compulsorily excluded from consideration when it comes to convicted child sex offenders. That position is supported by many advocates, including The Grace Tame Foundation, which argues that “perpetrators of child sexual abuse target the children’s family and/or community by a calculated process of grooming … Character references solicited from members of the community are only further evidence of the grooming process.”
I would go further: while child abusers hide in plain sight, creating “good character” as a means to their predatory end — that’s why we needed an institutional child sexual abuse royal commission — there is also a broader problem with our understanding of and attitude towards perpetrators of sexual violence.
It comes back to the central dissonance of rape: at least one in five women have been victims of it but, if we believe that the conviction rate accurately reflects the truth, there are almost no rapists in the world. The actual truth, necessarily, is that there are rapists — just as there are survivors — everywhere.
That being so, many rapists — probably most — are “good blokes”. I guarantee that you know a rapist who is the last man you’d suspect. Kunis and Kutcher knew a rapist for 25 years and they still think he’s a good bloke, despite stressing that they accept the verdict against him.
Evidence of good character is quite simply no guide to whether a person has raped or will rape again. Most rapists are serial. And rapists are by definition not people of good character. It follows that the law — in not just allowing but in some cases requiring that evidence mitigate the punishment and therefore the measure of society’s disapprobation of rape — is perpetrating a fiction.
This is merely one of very many examples of a fundamental flaw in the legal system’s response to rape. Character evidence is clearly a relevant mitigatory factor for most crimes, including murder, but it is completely maladapted to sexual violence offences — especially, but not only, in cases of child sexual abuse.
Masterson’s judge gave his character references exactly the weight they deserved: the sentence was 30 years to life. It would have been better if the victims hadn’t had to add them to their toll of trauma at all.
Disclosure: I am a director of The Grace Tame Foundation, I represented Corfe’s victim and I have advised the Your Reference Ain’t Relevant campaign.
If you or someone you know has been or is affected by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au. Survivors of abuse can find support by calling Bravehearts on1800 272 831 or the Blue Knot Foundation at 1300 657 380. The Kids Helpline is 1800 55 1800. In an emergency, call 000.
Would you include accessing child pornography as one of the offences for which good character is excluded? I personally don’t feel comfortable throwing the book at people who have no history of approaching children in the real world.
On the other hand, I am inclined to agree with Rat – good character references seem to be a marker of socioeconomic privilege as much as anything. Someone struggling to make ends meet who commits a crime out of desperation or frustration is hardly going to get a ref from anyone of note, unlike someone who has acted out of entitlement and arrogance.
And, of course, the worst, most high risk offenders are the charming psychopaths, who are exactly the type to get the character refs.
Your first point is reasonable, but I would not describe it as a matter to be covered by character references. It should be simply covered by the relevant crime as set out in the charges and confirmed by evidence. If the crime is accessing images, that is what the sentence should be based on. No character reference is needed about approaching children, or not doing so. If the court heard no evidence of such behaviour it cannot be taken into account in sentencing. If there is any evidence the individual is a direct physical menace to children that should be addressed through separate charges. The courts have no business finding somebody guilty of one thing and then additionally sentencing them for another.
How was the child pornography that they viewed produced? Isn’t this contributing to the crime? There ain’t no child pornography without the demand.
They may not have a history of approaching children, but the producers of the pornography are doing a lot more than just “approaching” children. Aiding and abetting.
Bradley’s arguments are convincing in respect of the sexual violence offences, but
How far is that true? If the sentence for a crime should reflect the crime, what is the relevance of character references? In particular, why should someone convicted of a crime get a lesser sentence if they can produce references from influential individuals? All right, the answer to that is blindingly obvious, but where is the justice in it?
In particular, those who commit ‘white collar’ crimes will of course be well-practised at presenting themselves as respectable and persuading those around them that they are typically charming and trustworthy. Why not treat that as an aggravating factor instead?
Often the character evidence doesn’t come form ‘influential individuals’ in the popular sense. It can come from family and friends, or people in the community. The intention is to allow the sentencing Judge to have a more complete picture of the individual in question. If the person was convicted for fraud, for instance, a reference from the charitable body they were secretary for advising they keep perfect records and never stole a dollar over twenty years might support the idea that the convicted person acted on a moment of impulse and may thus serve as a mitigating factor. Mitigating and aggravating factors are to be taken into account via sentencing legislation (at least in my jurisdiction). I suppose the logic is that if matters can be taken into account to aggravate a crime, they should be taken into account to mitigate too.
I agree with your comments about Bradley’s arguments with respect to sexual offences though. It is an interesting take I hadn’t put any thought into before.
Yes, that’s the way these references often are supposed to work. But does it make any sense? If someone has raped, robbed or bashed someone else, what is the point of wheeling out various people to testify that the same person, on other occasions, did no such thing? Or even behaved quite well at other times? Why does the court find that relevant, when it says nothing about the crime the court is supposed to be considering? And in addition, it gives a huge advantage to those who can summon up such people to speak for them; which is almost inevitably those with a more privileged background.
There is a spectacular recent example of how this works from the state of South Carolina. In a case related to the notorious Murdaugh murders, a previously well respected middle-aged lawyer was convicted of stealing from clients, in a conspiracy with other such professionals. Before sentencing the court was treated for a day or so to a long succession of friends and family attesting to what a good family member, neighbour and colleague he is. Various little acts of kindness and generosity were described. So what? This wealthy and successful lawyer had, over about a decade, stolen millions of dollars from insurance settlements that should have gone to a number of his more impoverished and quite desperate clients. He is a kind and generous man to his social class or circle; he is a vicious predator to the socially inferior clients who trusted him. Why should the court give any time to the glowing encomiums of the former when deciding the sentence for the crimes and injuries he inflicted on the latter?
Why not treat that as an aggravating factor instead? – exactly! if you’re of “good character” then, in my mind, you have even less of an “excuse” for your bad behaviour, be it rape or stealing from your employees or woteva
but no, it’s the damaged and sick (the abused becoming the abuser) who often struggle against their demons before succumbing, who have the full force of the law come down on them … no character witnesses for them, they *obviously* had it coming
True, but I was thinking more that those who are notably talented at gaining trust are, in respect of white-collar crime, more of a menace, and so there is more reason to protect society by passing longer sentences.
Character evidence should be allowed in some cases, but only from persons who know the alleged perpetrator and of the same demographic as the alleged victim. Thus, for example, a glowing testimonial from a former PM as to the character of an influential priest accused of sexual dealings with a child should be disallowed; assessment from children of the parishes where the priest has served would be more appropriate.
The problem with character references is that the people providing them are unlikely to ever see any obvious signs of criminal behaviour. Someone can establish an excellent character in public and with those closest to them, but they’re never going to admit to stuff they know to be criminal. And they do know, otherwise it wouldn’t be hidden from those who provide the character references.
The law is written by priviledged people who are careful to make sure that there are escape mechanisms for privileged people in the event that there is a slip up and one of them finds himself in the dock for a serious crime. This is one such escape mechanism. Penalties for crimes are for others, not proper people.
Exactly. ‘Good character’ is code for ‘good connections’ – one of us. Most of the war criminals at Nuremberg would have been able to summon ‘character references’ about what wonderful family men they were.
Exactly. ‘Good character’ is code for ‘good connections’ – one of us. Most of the war criminals after WW2 would have been able to summon ‘character references’ about what wonderful family men they were.
Exactly. ‘Good character’ is code for ‘good connections’ – one of us. Most of the war c-r-i-m-i-n-a-l-s at Nuremberg would have been able to summon ‘character references’ about what wonderful family men they were.
For crying out loud, Crikey. Now we’re not allowed to use the ‘C’ word!
And kind to animals too.
Der Fuhrer loved his Alsatians, the one in the bunker so much that he tested the cyanide on it before he & Eva partook, as their recessional post the quickie marriage ceremony.