In a comment earlier this morning, James Farrell made this peripheral point:
It’s less than twenty years since a South Australian judge had to resign for saying that some wives needed a bit of rough handling, or whatever it was exactly.
The judge James had in mind was Justice Derek Bollen, and while he was certainly publicly demonised, he didn’t resign nor was he removed by Parliament. Indeed there’s a very strong argument that Bollen’s demonisation by the media was grossly unfair and misleading, and a typical example of a media beatup which has assumed the status of unchallengeable truth. However, it’s hardly surprising that James, and probably just about every other reader who has some vague memory of the case from its media coverage, would think that Bollen was the archetypal ignorant sexist pig judge. Bollen’s remark has been consistently misrepresented ever since, and not only by the media. Here’s a relatively recent example from someone who really should know better, prominent feminist lawyer Dr Jocelyn Scutt:
Justice Bollen said in NSW [KP - actually it was South Australia, but what do mere facts matter when you're out to perpetuate a strawman feminist target?] that in a marital rape case, rougher than usual handling was basically A OK and it may not be rape in the marital situation, just because they were married. In that case a man was accused of raping his wife when they had been living together. The case had gone through the police investigation, it had gone through the Director of Public prosecutions, it had been prosecuted and it was in Court. Justice Bollen said those words in the summing up to the jury. It had got all the way through, including the whole trial, when the judge says this!
What were the real facts? As Justice Geoff Eames explained in a recent address to the Melbourne Press Club:
A very clear instance of demonising a judge occurred in South Australia where Justice Derek Bollen was attacked for his employment of the phrase “rougher than usual handling” in his directions to a jury. It is a phrase that has entered into the lexicon of judicial sexism, and I have no doubt that many members of this audience would assume that in using that phrase Justice Bollen was rightly exposed as a sexist buffoon. Few people would know the circumstances in which the phrase was used.
The judge was directing the jury in a case of rape between partners in a relationship where the accused alleged, and it was to a degree admitted by the complainant, that he and the complainant had frequently, and consensually, indulged in what might be termed rough sex. The complainant said that in this instance the accused had gone beyond the level of force that had been implicitly agreed between them. In encapsulating the prosecution case the judge said that it was alleged that in this instance the accused used “rougher than usual handling”.
The conduct of all parties as exposed in criminal trials would frequently offend the moral sensibilities of the community, whatever be the jury verdict as to whether, in addition, the conduct of the accused person was criminal. The trial judge has the task of making clear to the jury what are the issues, and that often must be done in simple and straightforward language. A trial direction is not eligible for the Booker Prize. As the Court of Appeal subsequently made very clear, Justice Bollen’s use of this phrase was innocuous when taken in context. Indeed, the foreman of that jury wrote to the media saying that the judge had been misrepresented, and that not only had the jury understood his direction in the context in which it was given, they found his summing up helpful in clarifying the issues. Does anyone today know these facts? I doubt it. As is the usual response of judicial officers when attacked, Justice Bollen remained silent and subsequently retired, his reputation never being restored by the media.
Nor does a Google search show that any of the journalists present at Justice Eames’ Melbourne Press Club address a couple of months ago have subsequently felt any ethical obligation to attempt to restore Justice Bollen’s reputation by publishing a corrective article. I suppose we shouldn’t be surprised. Maybe this post might at least make some small contribution to setting the record straight.