“Rough handling” judge was handled roughly

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.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Nicholas Gruen
Admin
Nicholas Gruen(@nicholas-gruen)
15 years ago

Do you have the full quote from Bollan Ken?

Stephen Bounds
15 years ago

And whatever the shortcoming of our legal system may be, I have almost invariably found that whenever the actual transcripts of a case are examined, the supposed “controversy” is nothing more than being quoted out of context.

As a rule of thumb, the higher the court, the smaller the chance of a miscarriage of justice — which is, of course, as it should be.

On a separate issue, I am beginning to see the power of the fourth estate as a real problem:

– Right of reply and corrections are granted at the whims of those publishing the articles in the first place. If the media is out to score a scalp, why should they publish responses that undermine their point? Even if they are forced to publish a correction by court order, the lapse in time between the original article and the correction means there is no guarantee the original audience will see the correction — the damage has been done.
– Hiring PR firms to counter the spin is only partially effective, because people instinctively distrust the obvious bias of the company compared to the supposed impartiality of the media. For politicians the practice is all but useless because a denial is often seen as an admission of guilt!
– Which bring us to astroturfing, the unsavoury practice of a company or political organisation creating artificial grassroots support for a point of view. Unfortunately, this appears to have the best chance of success but becomes a high-risk game of cat and mouse where if the media discover the true source of the “support”, the sponsors will be mercilessly pulverised.

So what’s the solution? Legislation? More blogs? State-controlled media (I’m joking)?

Anyone else have bright ideas on how this judge’s reputation could have been restored in a world where the media controls the headlines?

Rob
Rob
15 years ago

Thanks, Ken. I do remember that case and the fury the “quote” engendered. I vaguely wondered at the time that if a comment from the summing up had been dragged out of context, and such seems to have been the case.

James Farrell
James Farrell
15 years ago

That’s funny. I started writing another short comment on Chris’s Mufti thread, then did some more googling, found Scutt’s article, plowed through that, decided the topic was worth a full post, hit the submit button, then found that Ken had already done the post.

Nicholas Gruen
Admin
Nicholas Gruen(@nicholas-gruen)
15 years ago

Yes Stephen, I think it’s worth thinking about reasonable ‘rights to reply’ and duties of correction. We impose restrictions on press freedom if people are defamed, and I think it’s reasonable to impose upon them some duty to provide rights of reply and correction. We impose this on sellers of goods. But of course it would take some time and effort to elaborate the respective duties and rights – though nothing more or less than the courts are used to in delineating common law rights and duties more generally.

Tony Harris
Tony Harris(@tony-harris)
15 years ago

It looks as though the Judge may have led with his chin, but the letter from the foreman of the jury suggests that he effectively addressed the relevant issue in the context, namely the matter of working out the rights and wrongs of a situation where there was a history of consensual “rough handling”.

The incident illustrates one of my beefs with militant feminism, that is, the way they have decided that they are so obviously on the side of truth and justice,

whyisitso
whyisitso
15 years ago

I recall the quote in comment 6 being published at the time, pretty well as Ken has reproduced it.

Unfortunately for Justice Bollen people do place the ordinary English language meaning to such quotes and in my view the meaning of his words is that it is OK for a man to use rough physical means to “persuade” his wife to have sex despite her refusal.

It’s all very well to say you were quoted out of context, but if context cannot be found except by reading text separately somewhere else in the material you can’t blame people from thinking you mean what you say.

Sometimes people are “persuaded” to go along with something because the immediate alternative is worse.

The difficulty lay people have with lawyers is that they tend to use a “legal” definition of a word without any real reference to its everyday meaning. The word “negligence” is a particularly egregious example.

Rob
Rob
15 years ago

The second quote certainly changes the perspective somewhat. Is the “rougher than usual handling” reference mitigated by “in an acceptable way”? Was the judge summarising the defence’s position, or trying to establish some kind of community benchmark for the jury to keep in mind?

Ian
Ian
15 years ago

After reading Ken’s initial post, for a minute there I thought I was finally across this matter, but now I’m all confused again.

Andrew Reynolds
15 years ago

Rob,
Not having read the full transcript of the trial I cannot be sure, but from the discussion above my guess would be that the usual manner of one of this couple persuading the other that intercourse was a good idea was to get physical about it, rather than asking verbally. The “rougher than usual handling” would then be understood in this context, as the foreman’s letter would indicate.

Yobbo
Yobbo
15 years ago

I was arrested last night for failing to obey a move-on order. I am seeking legal advice from anyone willing to offer it. The details and description of the situation are on my blog: http://yobbo.wordpress.com/

Richard Phillipps
Richard Phillipps
15 years ago

The ALRC proposed at one staga that defamation damages be done away with (or mostly done away with) and that the remedy instead would be a court ordered correction in the same type face and on the same page (not the exact same page, obviously, the corresponding page in a later edition). The media rejected it out of hand. Makes all this wittering and mewling about oppressive defamation law a bit limp.

derrida derider
derrida derider
15 years ago

When people perpetuate myths it’s better to assume they’re doing so inadvertently rather than mendaciously. So it’s more effective to point out to them directly what they’re doing – whingeing about it on a blog is not as effective.

Ken, can I suggest you send a polite email to Dr Scutt?

Tony Harris
Tony Harris(@tony-harris)
15 years ago

Yobbo, have you considered taking to the hills and waging a guerilla resistance against the regime?

Don Quixote
15 years ago

You’d won me over until I read the full quote. Now I’m not sure what to think.

saint
15 years ago

Yes I vaguely remember this furor. I think Bollen copped another backlash in the following year over another judgment where a woman killed her husband. Feeding frenzy and few if any journos presented sufficient facts to put the judgement in context (no matter how clumsily worded). If I remember correctly it was a time when domestic violence, battered wife syndrome, rape in marriage etc was very much in the public forum, lots of accusations of sexist judiciary…I think there was some reeducation campaign for judges soon after this.

Jen
Jen
15 years ago

‘rougher than usual handling’ – one of the funniest lines in foreplay around and the ire it aroused amoung the righteous at the time was delicious.

– on the other hand, while I love the line, I would forego it altogether for the sake of correct reporting and the sake of Justice Bollen’s reputation in the eyes of the community.

whyisitso
whyisitso
15 years ago

“Yobbo, have you considered taking to the hills and waging a guerilla resistance against the regime? ”

In Perth? What hills would they be, Rafe?

Thomas the Tout
Thomas the Tout
15 years ago

Excuse me for going off on a tangent. Derek Bollen was the judge, and I presume that he liked being a circuit judge, given that he brought the Supreme Court circuit to this little town quite a few times. He ran a very good Court – polite, courteous, and patient. I have not seen him for some years, but he was a very pleasant human, and a jolly good Judge, and a person with a true concern to ensure that he did good works.

I think that the trial in question took place in Pt Augusta. I have no doubt that he was misquoted, and a phrase that was appropriate when talking to a jury, took on a life of its own. In such ways do the Courts loose their individuality and spark.

Derek Bollen wrote the text book for Motor Vehicle Law in S.A., from which you will see that he had a dry wit, and although he accepted the superiority of legislation, he could neatly needle badly written laws.

rossco
rossco
15 years ago

Although the Press Council is a bit of a toothless tiger, it does have an established complaints procedure for addressing concerns about inaccurate or misleading reports, including headlines, in the print media. Anyone can make a complaint, you don’t have to be directly involved. Ckeck the Press Council web page.

If a complaint is upheld, the paper concerned is obliged to print the P.C. finding. Even if the complaint is dismissed the paper should have to justify why it ran the story in the way it did.

Its a bit late now for dealing with the reporting of Judge Bollen’s remarks but worth bearing in mind when similar issues occur in future, as they will. One thing is for sure, print media will run stories which accentuate the sensational, without worrying too much about the facts.

Joshua Gans
Joshua Gans(@joshua-gans)
15 years ago

There seem to be two reasons to be confused now, Ken. First, is the passage you quoted from the sentencing or the summing up? Do we need to be considering two separate comments, one of which (as defended by Eames) might be innocuous in context, while the other (quoted at #6) looks, at best, very clumsy?

Second, whether we are talking about two comments or one, the one quoted at #6 seems to invoke the most general community standard, without reference to the particular history of this couple at all.

Let’s give Justice Bollen the benefit of the doubt and suppose that what he meant in that comment was this:

We all know that many couples play games when it come to sex, and sometimes it happens that the party who was initially reluctant is subsequently glad that the other persevered a little to overcome that reluctance. The line between a playful kind of physical persuasion, which is within the established rules of the game, and unacceptable force, varies from couple to couple, and it’s not easy for an outsider to draw it.

That would be fair enough. But if that’s what he meant, then, contrary to Eames, we don’t in fact need to know much about the context to draw the right conclusion – namely that ‘rough handling’ is just a very clumsy formulation.

Chris
Chris
15 years ago

This is my first post on this site, so may I apologise in advance if I trip over an unwritten rule.

Much of a corrective nature has been said above so I shall not repeat it. It is worth noting however, further to Ken’s comment that Justice Bollen “didn’t resign nor was he removed by Parliament”

SJ
SJ
15 years ago

A fuller quote:

Bear steadily in mind – I am sorry to be repetitive – it is for the Crown to prove the lack of consent. “Consent” means free voluntary agreement to engage in an act of sexual intercourse at the time relevant. Submission is not consent. Of course, you may run into considering in this case the question of, shall I say, persuasion. There is, of course, nothing wrong with a husband, faced with his wife’s initial refusal to engage in intercourse, in attempting, in an acceptable way, to persuade her to change her mind, and that may involve a measure of rougher than usual handling. It may be, in the end, that handling and persuasion will persuade the wife to agree. Sometimes it is a fine line between not agreeing, then changing of the mind, and consenting. You will bear that in mind when considering the totality of the evidence about each act of intercourse.

QUESTION OF LAW RESERVED ON ACQUITTAL PURSUANT TO SECTION 350(1A) CRIMINAL LAW CONSOLIDATION ACT (No.1 OF 1993) No. SCCRM 93/1 Judgment No. 3896 Number of pages – 28 Criminal law and procedure (1993) 59 SASR 214 (1993) 66 A Crim R 259; [1993] SASC 3896 (20 April 1993)

SJ
SJ
15 years ago

The important bit in the appeal jedgement (link above):

23. The Solicitor-General’s first argument was that the direction was
misleading in that it would be understood as conveying that rough handling was
a legally permissible means of persuasion with the danger that the jury might
conclude that submission in consequence of rough handling amounted to consent.
I do not think that the passage, understood in the light of the evidence and
the issues raised by the evidence, is open to that construction. The evidence
of the accused was that his methods of persuasion, when his wife was
reluctant, involved trying “to smooch to her”, but also on occasions involved
what might be regarded as a boisterous playfulness. I think that the thrust
of his evidence, however, when fairly understood, was that these methods were
engaged in only when acceptable to his wife and that he desisted when “she let
me know when she couldn’t go any further”. The passage in question was
directed to the issue raised by that evidence.
24. The sentence containing the reference to “rougher than usual handling”
also contains the phrase “in an acceptable way”. In his report to this Court,
the judge has explained that that meant in a way acceptable to the wife. I
consider that a jury listening to the direction with the evidence of the
accused in mind, could only understand the phrase in that sense. The phrase
“in an acceptable way”, that is to say “in a way acceptable to the wife”
clearly governs the whole sentence. That is so as a matter of syntax. The
first part of the sentence states that “There is, of course, nothing wrong
with a husband, faced with his wife’s initial refusal to engage in
intercourse, in attempting, in an acceptable way, to persuade her to change
her mind”. That is obviously correct law. The second part of the sentence
states that “that”, that is to say attempting to persuade in a way acceptable
to the wife, “may involve a measure of rougher than usual handling”. The
reference to “rougher than usual handling” would be puzzling if it were not
for the accused’s evidence. It is fully explained, however, by the accused’s
evidence that his wife accepted methods of persuasion of a somewhat boisterous
nature. It was for the jury to decide whether it was prepared to accept that
evidence in the face of the wife’s contrary version. That was not the
function of the judge. His function was to explain to the jury the legal
implications of the evidence of the accused if that evidence were accepted by
the jury.

Rob
Rob
15 years ago

That’s good, SJ, I think that does clear it up, together with the fuller quote– “Of course, you may run into considering in this case the question of, shall I say, persuasion. There is, of course…..”

You could argue that the judge’s remarks might have been clumsy, but it seems he was clearly referring to this particular case, where ‘rough handling’ seems to have had a specific and relevant meaning.

John Morhall
John Morhall
15 years ago

SJ, thanks for the link to the judgement. I was interested to read in the first question for consideration by the Court, the story of the business man in the railway carriage, and can only conclude that it must have been a very long time ago. When travelling into London by train during the “rush hour” in more recent times, the business man would have been lucky to have got a seat, let alone be in a carriage on his own prior to the alleged incident referred to. On the assumption that it was outside of the either rush hours, he would have been lucky to have got a train at all. The story sounds somewhat far fetched based on my own travelling experiences in and around London, or perhaps it was in the pre Beeching days of steam driven locomotives, but I hope that Ken will have a reference to incident in any event? This is my first post in a while having just recently returned to Oz.

James Farrell
James Farrell
15 years ago

Yes, the ‘in this case’ is exactly what I was missing from the shorter quote. It helps to understand how, having made a very reasonable and general point about the complexity of persuasion – one that most people would nod along with – Bollen could suddenly throw in a phrase like ‘rough handling’, which goes a step further than the average person would find acceptable – which, out of context, was so jarring.

Nicholas Gruen
Admin
Nicholas Gruen(@nicholas-gruen)
15 years ago

It seems to me that the words in context – which is to say in the context of the case – are completely explicable. I disagree with this business about the judge expressing himself in a clumsy way. We all express ourselves in ways which, when taken out of context can sound odd and indeed perverse, pernicious odious etc.

It wasn’t clumsy expression. It was words used in a particular context. Take words out of context and you can usually get them to sound like all sorts of nonsense.

Rob
Rob
15 years ago

Fair enough, Nicholas; I withdraw ‘clumsy’.

Stephen Bounds
15 years ago

Well done finding this SJ! There are a few very interesting facts here:

(1) Bollen J was found to have made an “error in law” by relating the anecdote of the man on the train by all three judges reviewing the case; and by two of the three judges in making the “rougher than usual” handling comment.

(2) Despite having been found to have made errors in law, this review could not form grounds for an appeal. “There is no right of appeal against an acquittal by a jury.”

(3) At the time of the case, a spouse could only be convicted of indecent assault or rape if accompanied by actual or threatened bodily harm, gross indecency, humiliation or threat of a criminal act against any person. (The law was subsequently changed.)

So Bollen ain’t blameless. Ironically however, if he should be censured for anything it should probably be for the first error in law, where he says “(an allegation of rape) is a very easy allegation to make. It is often very hard to contradict”.

This statement has not been considered proper legal procedure since the High Court Longman case of 1979 (168 CLR 79) established that the appropriate caution is that juries “may act on the word of the woman alone but should exercise considerable caution before doing so”.

By contrast, the second error referring to “rougher than usual handling” is merely poorly worded, and was erroneous because of its potential for misinterpretation rather than any problems with the intended content of the statements.

Stephen Bounds
Stephen Bounds
15 years ago

Ken,

Bollen J certainly doesn’t deserve the infamous reputation he has based on the full context of the case.

However, regardless of any “element of truth” in saying that rape is an easy allegation to make, Bollen was going against a precedent set by Longman the High Court 13 years earlier. Deane J summarizes the principles:

There remain serious problems about any general rule requiring that … an unqualified warning be given to the effect that it is dangerous or unsafe to convict on the uncorroborated testimony of a complainant [in sexual assault cases]. The main problem is that … it inevitably involves an element of disparagement … [placing] the complainant in a special category of suspect witnesses.

In other words, by phrasing his remarks in that way, Bollen may have influenced the jury to place less weight on the testimony of the woman.

Jacques Chester
Jacques Chester
15 years ago

Retractions do get published, but as a rule they are very small and buried in obscure places.

So on a Saturday you’ll get “KEN PARISH EATS BABIES AND HATES SHANE WARNE!” as the headline with a photoshopped image of what this might look like dominating the front page. Perhaps on Monday (traditionally a low-selling day) there will be a retraction, something like “The Example Times claimed on Monday that Ken Parish eats babies and hates Shane Warne. Mr Parish does not eat babies. We apologise for this error”. The retraction will be buried, such as in the finance pages which get skipped in the rush to read the daily funnies.

So, in essence, journos and editors can get away with a helluva lot, especially in those states and territories where a written or published apology is a defence to defamation. Now if they were required to have “WE ARE COMPLETELY INCOMPETENT ONE-EYED LIARS, SORRY KEN” as the headline on the follow Saturday, perhaps they’d spend more time doing the kind of careful fact-checking and investigation they love to tell the lowly that they carry out as a sacred trust.

And yes, I do work for a newspaper, though not in Editorial.

Stephen Bounds
15 years ago

So it’s true! Ken Parish does hate Shane Warne!!!

Jacques Chester
Jacques Chester
15 years ago

I don’t know, but neither does the journalist.

Jacques Chester
Jacques Chester
15 years ago

Anyhow, to most Australians the Shane Warne hating would be by far the more serious crime.

Nicholas Gruen
Admin
Nicholas Gruen(@nicholas-gruen)
15 years ago

Mmmmm – so Ken hates Shane Warne. I guess he hates his way of life?

trackback

[…] This isn’t exactly what he said, and in the particular instance he was judging it turned out that the couple did regularly indulge in “rough sex”. […]

The Cantankerist
The Cantankerist
7 years ago

Going back now, and even in light of the longer quote, I still think that “clumsy” is actually pretty generous. The phrase “rougher than usual handling” can’t be expected to be read (or even, necessarily, heard) as specific to the case when it is surrounded by generality. Even the phrase “in this case” doesn’t necessarily mean “in this particular instance” but may also mean “in the course of these legal proceedings”, which then frames the statement as even more of a general proclamation. The phrase “in an acceptable way” is not specific or strong enough to bear the weight of assumption being put on it here.

Anonymous
Anonymous
4 years ago

All I can say is wow to peoples ignorance.
This Judge ruled lightly which in turn left others at harm. You do not have all the facts about the case or the situation. Have you considered what this rough terminology was actually refering to. The accused man utalise foreign objects to abuse his wife. He not only beat her but believed it was ok.