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Call for a threshold of protection for victims regardless of status when sentencing their offender

MICHAEL ROZENES: There's a difference between a person who takes a nun off the street, knowing she is a nun and appreciating that she has kept her virginity sacred for years and with that knowledge raping her, in my view commits a greater crime than a person who snatches someone off the street not knowing who she is and commits that crime, who commits a greater crime than the person who is with a prostitute and has agreed to do certain things for certain dollars and when there's a dispute about whether it involved one or two, takes the extra one for nothing. That person again, in my view, commits a lesser crime.

RICHARD PALFREYMAN: Commonwealth Director of Public Prosecutions, Michael Rozenes, QC, addressing a small gathering of the Court Network Association in Melbourne last night. He was arguing that judges have to consider the different circumstances of victims when sentencing offenders. But his choice of example has sparked enormous controversy. In talking about nuns and prostitutes, Mr Rozenes has reawakened the argument about the way the law treats women. A Canadian law professor, expert in the area of gender bias, says Mr Rozenes appears to have fallen into stereotyping women as either damned whores or God's police. Professor Kathleen Mahoney has been hired to train Australian judges in issues of gender sensitivity, and she is speaking to Fran Kelly about the DPP's comments.

KATHLEEN MAHONEY: Well, you see, this is the difficult question because at the outset the prosecutor is quite correct, that you must look at harm. But where he, in my opinion, goes wrong, is to apply a stereotype in terms of the examples that he uses; like, he's basically in using the nun and the prostitute examples, he's using the stereotypical Madonna-whore, you know, sort of dichotomies and basically saying that society values one of those women better than the other, based on her sexuality and her value in her sexuality. And we know that the stereotypical evaluation of women has been .... exclusivity to men. So of course the nun is at the far end of the spectrum in the sense that she's exclusive completely. No man sort of has access to her sexuality, whereas at the other end you have this very devalued prostitute who's accessible to all men and so therefore she is of less value. And then you can imagine where women fall on that continuum.

Now, whether one individual or another one of us, whether we're religious or whether we're not, or whether we're amoral, or whether we're very moral, puritan people, we will have our own personal ideas about sexual morality. But the law is not to have those ideas - that's the ideal - and they're to protect all people equally so that there should be a threshold of protection regardless of status that the law addresses.

FRAN KELLY: But Michael Rozenes is right, isn't he, in indicating that there is such a thing as impact on the victim that needs to be taken into account when sentencing? That's a fair enough comment, isn't it?

KATHLEEN MAHONEY: Absolutely. But what you don't do is measure the impact on a group in a stereotypical fashion, you hear impact statements from the victims themselves. So indeed a prostitute could get up in front of a court and tell a story to the judge that might be profoundly more moving and indicate profound hurt and injury much more so than, say, someone who's coming from a very advantaged situation in life who, you know, although the rape to them perhaps was traumatic maybe not as traumatic, say, as to a young prostitute.

FRAN KELLY: And yet we wouldn't demand that, though, if it was a child rape, would we? Most of society would generally agree that a child rape is in a different category of seriousness altogether.

KATHLEEN MAHONEY: Well, we tend to look at children differently because of their situation in life as being totally vulnerable. They can't stand up for themselves, they don't understand often sexuality and all of those kinds of things. So we tend to see children in a different category. But certainly a judge would take into account the additional harm per se that must be involved in the rape of a child, in terms of their vulnerability and the breach of trust that such an offence causes.

So, you know, it would be wrong I think for a judge in that case as well to treat a child the same as everybody. The lesson here is we don't treat any group, you know, in a stereotypical, sameness fashion. You must look at individual cases as they present themselves and you mustn't draw any conclusions from the person's status such that they will be less protected by law than someone else of a higher economic status or a higher job respect status or something like that.

FRAN KELLY: So would you say a comment like this from the Commonwealth DPP reflects the kinds of judgments in our courts every day?

KATHLEEN MAHONEY: Well, you know, I don't particularly want to condemn any individual or anything like that, but I think what it underscores is the need for us to continue to educate ourselves about these issues. You know, I think that we can learn from these things and it's good that the media picks up on them, such that they serve as an educative device to move us to a better place. And, without condemning any particular person, lots of people make those kinds of slips day in and day out because it's the culture from which we come and we're trained in, and we shape our values and we're changing those values. So we're in a period of transition and I think the important lesson to learn from this is that we have, you know, further to go in our work and in our understanding of equality, of principles and equality theory and hopefully we'll come to a time and place where these kinds of statements are not made publicly.

RICHARD PALFREYMAN: Professor Kathleen Mahoney, speaking there to Fran Kelly. And the Attorney-General, Michael Lavarch, will talk to us about the DPP's comments after the break.