Crusading lawyer drops a bomb or two

GEOFFREY Robertson thinks he might owe his existence to the nuclear bombing of Hiroshima. At the time his father, an Australian fighter pilot, was due to be part of the Allied invasion of Japan. “He was due to report to naval headquarters on the very day that news of Hirohito’s surrender crackled over the wireless,” Robertson writes in his new book. “Instead of reporting for duty, he telephoned the women’s air force corporal he had taken out in Townsville, and proposed.”
It was the mushroom cloud over Hiroshima that gave the emperor his excuse to surrender; without it, his father might well have been one of hundreds of thousands more soldiers to die in the conflict, Robertson says.
That knowledge has always tempered his view of nuclear weapons, which he did not regard as an unmitigated evil. But in his new book, Mullahs Without Mercy: Human Rights and Nuclear Weapons, the international human rights lawyer takes a tough stand. He says it is time the world called the construction and use of the bomb a human rights atrocity, and set up systems to prevent it falling into the hands of “malevolent regimes which seek to gird their loins for Armageddon”.
To wit, Iran. And Egypt and Syria and Libya. But mostly Iran, which has a history of “appalling criminality”, including massacres of political prisoners. Its nuclear ambitions are by far and away the biggest threat to world security because they will trigger a new arms race, he says.
Robertson argues that it is Iran’s progress towards N-weapons that has spurred Israel into its latest bombing of Hamas; Israel is clearing out Hamas’ missiles because it wants to bomb Iran in early 2013, “once it achieves ‘nuclear capability’, which [Israel] confuses with nuclear culpability”.
Robertson, a QC and probably the world’s best-known human rights lawyer, is 66. He has lived most of his adult life in London but was born in Australia. He speaks in the rich, plummy tones of an English toff. Private Eye has accused him of having had “a vowel transplant”; a philologist once said he spoke like an Etonian in the age of Queen Victoria.
Robertson says he talked like that long before he studied as a Rhodes scholar at Oxford: “I didn’t speak at all until I was five and then came out with the inflections of ABC announcers.” Not bad for a graduate of Epping Boys High School in Sydney.
Robertson is popularly known in Australia for his ABC TV series Hypotheticals, in which he hosted debates on topical issues using the barrister’s verbal thrust and parry, often spearing the heart of the question and sometimes panelists.
It was during one of these episodes in 1988 that he met Sydney author Kathy Lette, who won him away from his then-squeeze, the bounteous Nigella Lawson. He and Lette, a lissom, wise-cracking queen of chick-lit, married in 1990. They have two children who are old enough now to be “semi-detached”, as he puts it.
His cufflinks today are a gift from his wife: tiny silver handcuffs. “Only Kylie could get her wrist through those,” muses Lette.
While Lette writes humorously about the personal side of life – froth with a feminist bite – Robertson’s work has been exposing and fighting the worst in human nature, the systematic abuse of the vulnerable.
It began with Aborigines in Australia, a theme continued when he won a landmark 2007 suit to have the remains of Tasmanian Aborigines returned to their people from the British Natural History Museum. He spent five years as president of a special court into war atrocities in Sierra Leone that indicted former president Charles Taylor over crimes against humanity.
He has also acted for high-profile clients including WikiLeaks leader Julian Assange and fatwah-ed author Salman Rushdie, and represents the jailed former president of Ukraine, Yulia Tymoshenko.
Robertson’s books include Crimes Against Humanity – the latest edition required 300 more pages than the one before it, he points out grimly – and The Case Against The Pope, in which he used legal principles to argue the Vatican should be treated as a “rogue state” because of its shielding of paedophile priests. “We must view child abuse as a crime against humanity when it is done on that industrial-scale level,” he says.
So, why a book on nukes now? Hasn’t the nuclear threat been with us since Hiroshima and Nagasaki?
Yes, he says, but for decades after that, it was largely a stable two-party threat, with the politics of Mutual Assured Destruction staying the trigger fingers of US and Soviet leaders. Later, the Big Five nations with nukes were all at a level of development where leaders had too much to lose to risk using it: “Wives and children and retirement plans.”
Now unstable nations with aggressive, authoritarian regimes have nuclear ambitions. “We haven’t had an explosion since Nagasaki so everyone is very complacent,” he says. “But we are probably about to fight a war to stop Iran [getting the bomb], and we don’t yet realise that this is Pandora’s Box. There’s nothing to stop any number of countries from reaching for nukes – the Muslim Brotherhood in Egypt has said it wants some, Saudi Arabia says it will buy some from Pakistan . . .
“We need to spool back the film and look at how dictators have behaved over the past 10 years.”
Robertson points out that Saddam Hussein used Scud missiles against Israel in Kuwait in 1990 even though Israel was not one of the combatants. “If he had had nuclear weapons to shoot at Israel he probably would have done so . . . You can imagine how much more difficult Syria would be if Assad had the bomb, or Libya if Gaddafi had had it. If he had kept building it, he would have had one by 2010, and he would have been quite capable of shooting a missile at Paris or London.”
So Iran’s nuclear program is even more dangerous than North Korea’s simply because it is in the Middle East and will inspire its neighbours to do likewise, he says.
Robertson argues that Iran’s government is particularly unfit to hold nukes because of its appalling history of human rights abuses: international assassinations, mass torture – including women prisoners of conscience given 15 lashes five times a day – and the 1998 slaughter of a suspected 7000 religious and political prisoners.
Robertson likens these murders to the mass graves of Srebrenica and the Japanese death marches of prisoners of war. It is Iran’s theocratic leaders whom he has dubbed “Mullahs without mercy”.
But still, he does not support a pre-emptive attack on Iran by Israel or the US.
He thinks Israeli Prime Minister Benjamin Netanyahu is acting precipitately because he fears the millennialist thinking of Iran’s Shia Muslim leaders. They believe that a messianic figure, the 12th imam, will return to the world to reward believers and destroy infidels following a time of great chaos and “screaming from the sky”.
Netanyahu and others, Robertson writes, “discern great danger in this . . . belief, so fervently promoted by [Iranian] President Mahmoud Ahmadinejad . . . they fear that an excessively devout Supreme Leader . . . might one day decide to drop a nuclear bomb on Israel in much the same spirit, to create that chaos”.
But he warns that a pre-emptive strike in the absence of a direct threat from Iran would be illegal under international law and would create its own humanitarian disasters, killing thousands of civilians and releasing poisonous clouds into the atmosphere.
He doesn’t think Iran would use the bomb unless it was attacked and “the regime was tottering”.
He thinks the weapon used to fix the problem should be international law and wants laws passed that would criminalise governments that acquire new nukes, and political will to be harnessed to force disarmament by those nations that already have them.
Robertson says nuclear weapons should be banned entirely, as are dumdum bullets and landmines.
And the legal regime needs teeth, not just to gnash but to bite. The International Atomic Energy Agency is a poor monitor and has no power to punish those who breach its guidelines, and the Non-Proliferation Treaty has no enforcement mechanisms either, he says.
But does international law have any force? Wouldn’t this just be another lawyers’ picnic, with duplicitous or defiant states going their own way regardless?
Robertson points out that international law is now gaining great traction over war crimes with the prosecutions of leaders such as Charles Taylor, who copped a 50-year sentence, and Ratko Mladic, on trial over genocide in the Bosnian war.
“Aggressive authoritarian dictators have been given pause by the fact that there is now law. It’s not so much the dictator himself but the generals and the army heads. We saw that in Libya where the prospect of being charged with crimes against humanity . . . led generals to defect during the NATO strikes in 2011 . . . ”
Robertson acted for Human Rights Watch in a British case against the Chilean dictator General Augusto Pinochet over his record of torture. There was an attempt to extradite Pinochet from Britain so he would face trial in Spain.
Britain found him too ill to stand trial but contrast the existence of that legal action, Robertson says, with the position he was in when he joined Amnesty International in 1979: “One of my first tasks was to write a letter about the torture chambers. ‘Dear General Pinochet . . .’ ”
Mullahs without Mercy by Geoffrey Robertson is published by Vintage Australia. RRP $34.95
Geoffrey Robertson will speak at the Athenaeum Theatre in Melbourne at 6.30pm on December 14 and at the Sydney Opera House at 4pm on December 16.
First published in The Age.

Ireland’s moment of truth

IT IS said that the best way to get a bad law overturned is to enforce it. When people see its consequences, the truism goes, they will be so appalled that public support for change will build up an unstoppable head of steam. The death of Savita Halappanavar might do just that for the women of Ireland.

Savita, 31, was 17 weeks pregnant when she went to University Hospital Galway in pain. Doctors told her that her cervix had opened and amniotic fluid was leaking. Her pregnancy was ending and there was no hope for the child. Over the next three days, in agonising pain, Savita repeatedly begged for an abortion to get the miscarriage over quickly.

Could doctors not induce the labour so she could give birth sooner? According to her husband, Praveen, the consultant told them this was not possible because there was still a foetal heartbeat, and ”this is a Catholic country”. That heartbeat finally stopped after four days, and only then was Savita taken to theatre to have the contents of her womb removed. She developed septicaemia, or blood poisoning, and was dead three days later.

Savita’s homeland of India is aghast, and there have been diplomatic flurries of concern.

Meanwhile, three separate inquiries have begun, and no doubt there will be findings as to whether medical negligence was a factor.

That was a straw clutched by some defenders of the Irish Catholic Church after the scalding rage that erupted over Savita’s case. ”It has nothing to do with the church,” one deeply Catholic woman assured me. ”It sounds like medical negligence.” She was channelling Pontius Pilate washing blood from his hands.

In Ireland, politics is deeply intertwined with Catholic doctrine and the institutional power of the church, and the church’s tough stance against abortion has protected a near-total ban on the procedure. Ireland still has on its books 1861 legislation that makes it a crime to procure a miscarriage. A 1983 amendment to the constitution acknowledges the right to life of the unborn child but is also meant to give equal right to the life of the mother. In 1992, Ireland’s Supreme Court was forced to interpret that during the case of X, a suicidal 14-year-old rape victim. The government was trying to stop her going to England to abort the pregnancy that had resulted from the rape.

”The state was going to force a child to bear a child for her rapist,” said one commentator. The court ruled that if there was a substantial risk to the mother’s life – her life, but not her health – it would be lawful to terminate.

Irish governments have prevented that judgment from coming into effect by failing to pass laws that would affirm and clarify it.

Ireland has a grand history of locking away evidence of sexual shame. Ask the ”wayward” young women imprisoned and abused as slaves in the Magdalene laundries, or the illegitimate children raped in orphanages by nuns and brothers charged with keeping them from contaminating the rest of Irish society.

Now abortion is concealed. More than 4000 Irish women go to England each year to end pregnancies, according to British statistics. An unknown number go to other European countries. ”Abortion tourism,” they call it.

Years ago, it could be argued the influence of church doctrine on the Irish government was democratic; the majority believed in Catholic teachings, so it was fair enough that they were reflected in Irish law, and that church leaders were consulted about planned legislation. But that is no longer the case.

An Irish Times poll found 77 per cent now believe abortion should be permitted in some circumstances. Other polls have found the hold of the church is weakening: 77 per cent of Irish now think there should be female priests, 90 per cent want married priests, and 70 per cent say the church’s teachings on sexuality are not relevant to them.

None of which is discouraging to Cardinal Sean Brady, the head of the Irish church, who announced in August that he would promote a lobbying campaign to oppose any change on abortion. Australia’s Cardinal George Pell has expressed concern the furore over child abuse has scapegoated the Catholic Church. The Irish pro-choice movement is not scapegoating the Catholic Church but holding it up to modern accountability.

The major religions are all guilty of some form of systematic abuse of women. Victims of rape have been executed in the name of Islam; Hinduism abandons widows to homelessness; orthodox Jews in Israel spit on women they deem immodest and try to force women to sit down the back of buses (Rosa Parks must be turning in her grave).

The fact that a religion invokes God, claims to be a path to transcendence and offers society many benefits does not exempt it from outside scrutiny of beliefs that cause harm. Catholic Ireland’s judge is likely to be the European Court of Human Rights, which criticised the government two years ago for not clarifying the Supreme Court ruling. The Irish government then set up an expert panel, and has said it will respond at the end of this month.

This will be a moment of truth for the Republic of Ireland. Many old-time Irish republicans believed the country could not come of age until it was united, with Ulster returning to the national fold. But perhaps a more important coming of age involves Ireland standing tall as a secular state where civil law can differ from, and override, canon law.

One person’s religious freedom must end where it hurts another’s right to health or happiness – or, as in Savita’s case, the right to life itself. As protesters outside the Irish Parliament last week pointed out, Savita had a heartbeat, too.

First published in The Age.

Lawyer back with family, awaits ICC questions


AUSTRALIAN lawyer Melinda Taylor has been reunited with her husband and put her two-year-old daughter, Yasmina, to bed for the first time since she was released from 3½ weeks of captivity in Libya on spying allegations.
“We need to just sleep in and try and get back to normal,” Ms Taylor’s husband, Geoffrey Roberts, told the Herald in a text message yesterday.
However, Ms Taylor’s ordeal may not be over. The International Criminal Court has said it will investigate Libyan claims about Ms Taylor’s conduct.
Ms Taylor’s mother, Janelle Taylor, told the ABC’s 7.30 last night her daughter was coping very well but was surprised at the level of media attention.
“She said, ‘Why would they be interested in me?’ ” Mrs Taylor said.
She said her daughter spoke about how happy she was to be home, but did not discuss any of the details of her captivity.
John Taylor added that he thought his daughter was “unwinding”.
“It was an unpleasant experience, I’m sure. She’ll keep that within herself for a while, I’d say,” Mr Taylor said.
Mrs Taylor said she believed her daughter would be undergoing counselling and a medical examination.
The family thanked those who had provided support during her captivity, including the Foreign Minister, Bob Carr.
“Melinda’s only just realising what sort of work Bob Carr has done for her and she intends … to thank him personally,” Mrs Taylor said.
Mr Carr, who had been involved in negotiations for Ms Taylor’s release, said at times he had feared Ms Taylor might not be released quickly. There were points at which the process was taking too long and he feared the worst, he said.
Ms Taylor, a lawyer with the ICC based at The Hague, arrived on a private chartered jet at a small secondary terminal at Rotterdam airport about 9am yesterday, Australian time.
She and three colleagues who had been with her in Libya spent about 45 minutes with officials before leaving in a convoy that included the ICC president, Song Sang-Hyun.
The Libyans allege Ms Taylor had been caught carrying “spying devices” and documents that breached national security.
They allege she had carried coded documents for Saif al-Islam Gaddafi. Saif is the son of the late dictator Muammar Gaddafi and is a prisoner in jail in the town of Zintan, which is held by a rebel militia.
The ICC wants to try him for crimes against humanity during his father’s rule. Ms Taylor was assigned to speak with him about his legal representation.
In a letter to the United Nations Security Council obtained by The Guardian, Libya claimed she tried to pass Saif a secret letter from Mohammad Ismail, Saif’s “main aide” and an associate of Gaddafi’s intelligence chief, Abdullah al-Senussi.
They allege Ms Taylor also took to the consultation with Saif a miniature “video camera pen” and a watch “that functions for the same purpose”.
Ms Taylor’s supporters have said she is highly professional and would never have behaved improperly. They speculated some of the claims might be the result of failure to understand the normal lawyer-client relationship, which involves exchanging documents and recording evidence.
Senator Carr said yesterday: “Talking to [Ms Taylor’s parents] John and Janelle, I had to tell them the evidence was ambiguous.”

First published in The Sydney Morning Herald.


Does Susan Crennan’s elevation to the High Court add one more conservative or has the Government unwittingly played a wild card? Karen Kissane reports.
WHEN the news got about that Susan Crennan had somehow nabbed a star traineeship with a senior barrister, it caused much consternation. Crennan was working as a librarian in a Sydney law firm while she completed her degree. An august partner at the firm dashed around to her tiny office. He had three questions: Had she lost all capacity for rational thought? Shouldn’t she follow the customary route and spend time as an articled clerk before going to the bar? And did she not understand that his firm could not possibly brief a barrister with so little experience?
Crennan’s response to the first two questions was a smile. In relation to the third, she pleasantly agreed with him. But she did exactly as she had planned. She left the firm when she graduated and became the pupil of David Bennett, now Solicitor-General. And six months later, when the firm’s barrister was unavailable in a simple matter, her former employer offered her a brief. The firm went on to become one of her greatest supporters. Crennan had crashed through without crashing. Humility, after all, is rarely a useful weapon in a barrister’s armoury.
The story illustrates many of the qualities Crennan would display in what was to become a legal career of brilliance: intellectual independence, fierce strength of purpose and shrewd networking (she had approached Bennett through his father, who worked at the firm where she had been a nobody).
On Tuesday she will be sworn in as the 45th judge to sit on Australia’s High Court bench, having spent only 18 months as a Federal Court judge. She will be the fifth High Court appointment by the Howard Government and her arrival will leave only two judges who were appointed by Labor, Michael Kirby and William Gummow.
Crennan will take her place on the bench at a crucial time in the history of the court, the Government and the nation. Prime Minister John Howard’s radical and wide-ranging industrial relations changes are likely to be challenged as unconstitutional; all the state leaders are expected to join Queensland in a High Court case to try to have the legislation overturned. If this happens, the Federal Government will hope the bench will rule the laws constitutional.
What might Susan Crennan – lawyer, wife, mother, Catholic, lover of history and literature and defender of Newman’s idea of the university – bring to this moment of truth? Is she really the conservative that she has been painted, or will the Government find that it has played a wild card?
There was a strange riff running through the responses of almost every legal figure interviewed for this story. All spoke of Crennan’s merit but most, on both left and right, expressed surprise at her appointment by a Government with the goal of “Capital-C conservatives” on the bench, as called for by former National Party leader Tim Fischer after the Wik decision in 1996. “I’m astonished that (Attorney-General Philip) Ruddock appointed her,” says one left-leaning barrister who has appeared before her in refugee cases. “She’s fiercely independent.”
Greg Craven worked as an adviser to the state attorney-general in the Kennett years. He witnessed close up the way Crennan, then head of the Bar Council, fought the Kennett government over many of its planned legal reforms. “She is extremely honest and forthright. She says exactly what she thinks and if she disagrees with you, she’ll tell you.”
Craven says that if, on reflection, she comes to believe the other side has a case, she is capable of compromising. If not, she is implacable. He concludes wryly: “As Sir Humphrey Appleby might have said, it is a ‘courageous’ appointment.”
NO ONE could accuse Crennan of being publicity hungry. She likes her encounters with the media to be minimal and firmly managed. Quotes on professional issues aside, it seems she has given only one personal interview during her career, in 1994 to a Sunday Age reporter writing an article on “The Women Most Likely”. Crennan insisted the article be shown to her in full before publication and sent it to the ethics committee of the Bar Council to ensure she had not breached rules forbidding barristers to advertise. Journalists tell of being chided through third parties for having called her Sue rather than Susan in reports, or for having left QC off her attribution.
Since the news of her High Court appointment, Crennan, 60, has refused requests for interviews and has also refused to be photographed, forcing media outlets to run over and over again the two carefully staged office photographs she has chosen and issued herself. She can set these boundaries because Australia does not scrutinise High Court appointments with the public rigour of America’s Supreme Court process. There is not the same expectation that a candidate should lay her legal, political and personal views open for dissection.
Which does not mean those views are any less significant. The individual mix on the bench is important. A High Court that during the 1990s was seen as either progressive (if you’re on the left) or as pushing the boundaries (if you’re a conservative) has given way to a much more restrained, legalistic bench today. The liberal Mason court that delivered the Mabo judgement, acknowledging Aborigines as original owners of the land, is history. In contrast, today’s more conservative court has ruled, for example, that the Federal Government has the right to detain indefinitely a man who could not be deported because he was stateless (Ahmed Ali al-Kateb). Legal analysts point out that often it is not judges’ personal attitudes that influence their work so much as their attitude to the judicial process, although history suggests that political conservatives are also more likely to be judicially conservative. But it is not always so simple. The Liberal-appointed William Deane was part of the majority on Mabo. Retiring Justice Michael McHugh voted for the Kateb decision but recently called for an Australian bill of rights to empower judges to protect human rights.
So what will Crennan bring to the mix?
Susan Maree Crennan grew up in an Irish Catholic family with five brothers and sisters in a small Housing Commission home in Heidelberg West, where her father Maurie was a barman and, later, a hotel manager. He paid for six Catholic educations on a barman’s wages.
Crennan went to Our Lady of Mercy girls’ college in Heidelberg before doing an English course at Melbourne University (where she studied Anglo-Saxon) and taking up teaching. Some time later she decided to do law. By then she was married to English lecturer Michael Crennan, whom she had met at Melbourne Uni in the ’60s. They returned to Melbourne from Sydney in 1979. They have three children and several grandchildren.
The woman from Struggletown now runs a famously sociable household known for its dinners and for its St Patrick’s Day parties, at which Susan Crennan has been known to play the bodhran, the Irish hand-held drum. As president of the Bar Council, she jokingly complained that her predecessor had not stocked the cupboard with Guinness.
She laughs intensely, says constitutional lawyer and academic Greg Craven: “It’s not like she brays like a horse, but when she laughs, she really laughs.”
Michael Crennan became a lawyer too, “but she’s the more high-powered one in the marriage,” says a QC friend. “He plays the more supportive role.” Another lawyer says the Crennans have a lot in common: “They are such an intellectual couple it’s a bit deflating for everyone else, really. They are into history and literature in a serious way. They are real intellectual partners. They are also very good friends, that’s obvious when you see them together. And he’s very proud of her.”
Crennan is a woman used to authority. As a barrister speaking in court, she was not one to lean over the lectern. She held herself straight and spoke formally and with assurance, her voice unfaltering. She was considered a formidable advocate who mastered with apparent ease the complexities of commercial cases and high-profile corporate fraud prosecutions.
She served as senior counsel to the Tricontinental royal commission and as the lawyer for the National Crime Authority in its pursuit of businessman John Elliott, and helped prosecute the directors of the failed Pyramid Building Society. Former Pyramid head Bill Farrow once described facing her as being “a bit like being picked for fullback against Gary Ablett”.
Her only recorded blunder was as a QC on an arbitration case when she went to view an electricity generator. She absent-mindedly leaned against an emergency stop button and shut down the entire plant. The joke was that the case centred on her client’s claims that the plant’s supply was often interrupted. That week, the availability report recorded “plant stopped by QC”.
Professionally, Crennan rose like a rocket. She took silk in 1989, only 10 years after joining the bar. She became the first woman to be appointed chairman (her choice of title) of the Victorian Bar Council, and the first woman to be appointed president of the Australian Bar Association – grand achievements for any female at the blokey bar. She became a Federal Court judge last year.
Retired lawyer Eve Mahlab says Crennan got ahead “because she thinks like a man and works like a dog”.
Mahlab, a feminist, says diplomatically: “If, as a woman, you want to get on, you devote yourself to the goals of your male colleagues and you don’t rock the boat by asking, ‘Is this fair to women?’ . . . What I think Susan Crennan always did, to her credit, was that she devoted herself to the goals of the male society that makes up the profession of the bar. She really contributed there and excelled.”
A conservative newspaper column welcomed her High Court appointment as “one in the eye for the sisters” because she was not a bra-burner or quota queen. In fact, Crennan’s relationship with feminism is a bit more complicated than it seems at first light.
She has certainly rejected feminist rhetoric; she says there is no evidence of gender bias in the law and that she has never suffered discrimination at the bar, and she does not believe in affirmative action.
But Crennan is no queen bee, climbing the ladder and pulling it up behind her; she has often reached down to help other women up a rung or two.
And there is evidence that she is aware of the realities of discrimination. Crennan worked as a part-time hearing commissioner for the Human Rights and Equal Opportunity Commission from 1992-1998. Beth Gaze, an associate professor of law at Melbourne University, has examined Crennan’s decisions for The Age.
“I’m not sure John Howard knew who he was nominating,” Gaze says. “She has a good record in human rights. It’s always difficult to make a case of discrimination. People have to show firstly that they were treated less favourably, and secondly that the reason was because of their sex or their race. But Susan Crennan handed down seven decisions in substantive matters and upheld six of the seven, including cases involving sexual harassment, sex, racial and disability discrimination.
“My view is that that’s quite an extraordinary record, because a lot of the other commissioners were reluctant to uphold cases.”
As a Federal Court judge, Crennan the anti-affirmative actioner upheld a union rule requiring 50 per cent representation of women as delegates as a legitimate special measure. “A special measure may, on the face of it, be discriminatory but to the extent that it has, as one of its purposes, overcome discrimination, it is to be characterised as non-discriminatory,” she ruled.
She also overturned a finding of insufficient evidence by the Refugee Tribunal in the case of an Eritrean woman who feared returning to serve in that country’s army because of widespread sexual abuse of female draftees. Crennan said the fact that were were many such examples meant the practice was “non-random and so oppressive that the applicant could not be expected to tolerate it”.
Says Gaze: “Even though I have heard interviews where she has said she never suffered discrimination, she is able to recognise when other people have.”
A friend of the Crennans says she has never told him her politics but that he would characterise her this way: “She is conservative, but I think it’s more to the right wing of the Labor Party, Labor-type Catholic-DLP thing.”
Crennan is reported to be a practising Catholic and was briefly on the board of Eureka Street, the Jesuit magazine of ideas. One lawyer who did not want to be named suggests that her Catholicism, active or otherwise, could prove interesting. “Basically, Catholic judges come to the bench with quite a strong understanding of Catholic social justice. Some of them won’t apply it on the bench, but others have much leakier compartments.”
He believes it will be telling to see how Crennan approaches the IR changes because they undermine collective bargaining, a principle dear to many Catholics: “Papal encyclicals still talk of it.”
Greg Craven, who is now professor of government and constitutional law at Curtin University in Western Australia, agrees Crennan will be one to watch.
“The thing you have to understand about the High Court judges is that they often change when they come into office. On the Federal Court, they are always subject to correction. Suddenly they get to the High Court and all predators are removed, so there is a tendency to behave in quite unpredictable ways . . . This idea that you can buy something from a shop window in the form of a judge and it will always behave a certain way is wrong.
“I don’t expect her to go berserk, but she’s not as predictable as people think.”
The thoughts of Susan Crennan
On proposals that judges should undergo retraining after alleged sexist remarks by colleagues in rape cases:
“I think it is rather a fascist world view to think that if someone does not toe the line . . . we have to educate them . . . There is no need to force them, I would have thought. With natural attrition and time, the percentage who did not want to get up to date with it will retire, and so life goes on.”
On TV coverage of court cases:
The cameras would distract everyone, focus on appearances rather than issues, and give proceedings a soap-opera quality.
On suggestions that contingency fees should be introduced:
“What entitles lawyers to tax their clients’ damages? The size of the damages reflects the injuries suffered by the client, and not the work done by the lawyer; that is properly measured by time spent, nature of tasks undertaken etc.”
On the Kennett government’s attempts to vet the decisions of the public prosecutor:
“(It) clearly compromises the independence of the office and introduces the potential for political persuasion.”
On the Kennett government’s sacking of former equal opportunity commissioner Moira Rayner:
“This should not be done in a way that effectively ends prematurely the term of a statutory office-holder.”
On criticism that the bar was anti-competitive:
“We barristers, we’re such a ready symbol of the litigation process, so we get it in the neck.”

First published in The Age.

One death, many stories

The jury in the trial over David Hookes’ death this week heard widely differing accounts of that fateful summer night, writes Karen Kissane.
JONATHON Porter didn’t see what happened to David Hookes at the end. His view was obscured by the rest of the people in the rowdy group walking down a St Kilda street on that warm summer night. But he did hear what happened, he told the Supreme Court this week.
“(There were) feet scraping the ground and then the sound of fist hitting flesh and then the sound of ” – his voice broke – “then the sound of a breaking bone.” Porter had no doubt about that sound; as a physiotherapist with the South Australian cricket team, he had heard bones break before. As for the punch: “It was very loud, I could hear it from a distance . . . It sounded much louder than me striking my fist in my hand.”
He raced forward to find Hookes, Victoria’s cricket coach and a radio broadcaster, lying on his back. His eyes were open but his pupils unresponsive. Porter cleared Hookes’ airway and laid him on his side. When Hookes’ thready pulse disappeared, Porter prepared to start cardio-pulmonary resuscitation. It was unnecessary, he told the court, as the ambulance had arrived. Standing in the witness box, Porter wiped away a tear and clasped his trembling hands together. All his efforts had been in vain; Hookes, 48, died from head injuries the next day.
It is undisputed that the man who struck the fatal blow is Zdravko Micevic, now 23, then a security officer at the Beaconsfield Hotel where Hookes had been celebrating a Victorian win in a one-day match against South Australia with a group of friends.
The group included Victorian cricketers Michael Lewis and Robert Cassell and Cricket Victoria staff Shaun Graf and Greg Shipperd, as well as South Australian batsman Darren Lehmann and coach Wayne Phillips. The three women in the group included the then girlfriends of Hookes and Lewis.
But there is much dispute over the events leading to the deadly punch in the face; in particular, the truth about the curious incident of the brawl in the night-time. Did it happen, or did it not? And if it did, does this mean Micevic, who is charged with manslaughter, threw the punch in lawful self-defence, as his lawyers claim?
There are two widely differing sets of accounts about Hookes and his cricketing group’s behaviour on that night, January 18, 2004, and in court this week senior cricketing figures faced accusations about lack of truthfulness.
At one point, defence barrister Terry Forrest, QC, said to Shaun Graf,Cricket Victoria’s general manager of cricker operations: “I suggest to you, Mr Graf, that you are not being entirely frank with us?”
Graf replied: “Mate, I can tell you, I swore on the Bible and I’ve been telling the truth.”
The general thrust of the cricketing group’s story is that they behaved well but hotel bouncers were unnecessarily rude and aggressive and forcibly ejected Hookes for no good reason. The security staff continued to harass him all the way up to a corner of Cowderoy Street, with friends trying to intervene to release him and promising repeatedly that they were leaving. The prosecutor, Ray Elston, SC, says Micevic threw the fatal punch just as Hookes was about to get into a car to leave.
The defence paints a different picture. Lawyer Terry Forrest claimed that Hookes was abusive to security staff in the hotel and resisted ejection, and that “two ladies launched themselves” on to the crowd controller who tried to march Hookes out of the hotel in a headlock. The defence says the cricketing group was cursing loudly in the street and that they resisted being moved on. Forrest said evidence would be led that residents of the street at one point saw a brawl between two men in their 40s while a group of younger men stood around them.
The defence case is that bouncers were merely trying to keep the peace and usher the troublesome group away from the hotel, and that a belligerent, defiant Hookes punched Micevic twice before Micevic – a former amateur boxer – struck back.
The contradictory assertions begin with accounts of the call for last drinks by security staff about 11.30pm. Both sides agree that a bouncer approached Hookes, who was drinking with an intoxicated Sue-Anne Hunter, then girlfriend to cricketer Michael Lewis. (Hunter and Lewis had had a row and Lewis was waiting for her in a car outside).
Hunter and another woman present, Tania Plumpton, told the court that the bouncer said: “Tell the bitch to skol her drink.” Hunter told the court that she said nothing in reply, but that Hookes told the bouncer that that was no way to speak to a lady.
Defence counsel Forrest gave the court a different account. He said the crowd controller had courteously asked the two to finish their drinks but that Hookes’ response was to tell the bouncer, “F— you”. The bouncer replied, “Look, mate, there’s no need for that, just move outside”. And Hookes then said, “Do you want me to repeat myself? F— you. F–k you.” It was only then, Forrest asserted, that Micevic took hold of Hookes.
It is common ground that Hookes was grabbed and marched out the front door, but the issue of involvement by others is in dispute.
According to the evidence of bouncers and other staff, a woman threw herself at the back of the bouncer ejecting Hookes and women were screaming loudly during the ejection.
Plumpton, a “cricket nut” and long-time fan of Hookes, denied that she had broken the tips of her fingernails because she tore off a crowd controller’s tag when trying to free Hookes from his hold. She also denied slapping the bouncer’s face. She agreed that she had tried to pull the bouncer’s arm away, however, in an attempt to ensure Hookes could breathe safely.
Hunter said she did not recall whether she had “launched herself” on to a bouncer in the bar or how her glasses had been broken. Hunter said she had not heard swearing or seen fighting outside the hotel and had no memory of walking up the street to where Hookes was felled. She did not recall telling security staff that she would sue them.
Forrest asked her: “From the time that you are in the bar area of the hotel until the time that you see Mr Hookes lying on the roadway you have a complete state of amnesia?”
“Correct . . .”
“Alcohol was a factor in your presentation on that evening, wasn’t it?”
“That’s correct.”
“But your recollections of what you say were offensive about the security men are quite specific, aren’t they?”
“That’s correct.”‘
“Is it the case that you do not want to tell us what occurred in Cowderoy Street?”
“That’s not correct.”
Forrest questioned Lehmann about a Sunday Age article in which he had said that he had blocked out of his mind various events of that evening.
Forrest said: “So if there is evidence to this court that you were involved in the application of physical force on the security staff within the hotel you deny that?”
“I would deny that, yes.”
“Is that something you may have blocked out, Mr Lehmann?”
“I don’t think I’d forget that, no.”
Several members of the cricketing group said they had not heard Hookes threatening bouncers outside the hotel with the loss of their livelihood. According to Forrest, Hookes had yelled: “You listen to the radio tomorrow. Your heads will f—ing spin. You don’t know who I am. I’m going to close this place down. You’re f—ed. You won’t have a job tomorrow.”
But Phillips agreed that Hookes had resisted leaving because he wanted to stay and “argue the toss”, and said he had heard some reference to the effect that Hookes would try to have the business closed down by giving it bad publicity on the radio.
Graf said he had not heard this. In cross-examination, Forrest asked him: “You, Mr Graf, during this entire evening, you don’t see one aggressive act from the cricketing group or hear one aggressive word; is that the position?”
But several cricketers and bouncers testified that there had been much pushing and shoving and bad language by members of both groups as the security officers tried to move the group away from the hotel.
Plumpton said that at one point she had her hands on a security officer’s chest when he leaned over her and threatened Hookes: “He said that David was a smart-arse and that he was going to effing-well kill him.”
Hookes had been close to being saved. His girlfriend Christine Padfield had run for her car and pulled it up near the group and yelled at Hookes to get in. Plumpton climbed into the back seat first. By the time she got there, Hookes was on the ground.
According to the cricketing group, he did not make it to the car because bouncers would not let him be. According to Forrest, it was because he again stayed to argue the toss.
Hookes’ widow, Robyn, and her two adult children sat in the front bench of the court nearest the jury each day this week. Robyn Hookes sometimes watched and sometimes averted her gaze from the witness box as the other woman who had loved her husband told of her ill-fated attempt to save the man in both their lives.
The trial continues before Justice Philip Cummins and a jury of six women and six men.

First published in The Age.

Honour killing in the suburbs

Julie Ramage was killed by an enraged husband who didn’t want to let her go. The jury found him guilty of manslaughter, not murder. Does the law still treat women as the chattels of men? Karen Kissane investigates.
THERE was no sound but for the hiss of the videotape.
Those in the courtroom were still as the police footage took us along the route James Ramage had driven with his dead wife in the boot of his Jaguar.
The day of her killing, the heavens had opened, lashing Melbourne with wind and rain.
But this day, the morning after, sunshine dappled the unmade road The road wound on, and on, a reminder of how focused he must have been on his task: so many twists and turns, so much time to think better of it. Finally, the camera turned off the road and onto a remote bush property. The lens panned police, trees, the pile of bracken in a particular spot. Then the spot again with the bracken removed.
And then the spot with its shallow coverlet of earth removed.
There lay Julie Ramage, on her left side, her legs bent up and her hair flung back as if she were asleep. She still wore her trousers, but her blue roll-neck jumper was tangled around one arm, so her pale, slender body was topless but for her blue bra. Her face was not visible in this video footage, which had been heavily edited for the jury’s consumption. This was partly a concession to privacy in what had become a very public death, and partly judicial care that undue gruesomeness not be permitted to prejudice the jury against the accused.
But Julie’s image was available, for those who wished to study it.
Her identical twin sister, Jane Ashton, sat grimly in court. Her reddened eyes were turned away from the film and away from the man in the dock, her brother-inlaw, her sister’s killer.
James Stuart Ramage, 45, was last week found not guilty of the murder of his estranged wife, whom he admitted having punched to the ground and strangled in the newly renovated family room of the matrimonial home on July 21 last year.
The jury of seven men and five women found him guilty of the lesser charge of manslaughter. His lawyer had argued that he had not intended to kill his 42-yearold wife, and that she had provoked him to lose control.
The killing shocked the comfortable inhabitants of Melbourne’s leafy suburbs. Since then, it has has blown up into an even darker storm over the way Julie Ramage’s voice seemed to be strangled out of her a second time, in court. For her family and many independent observers, the case highlights the way that ideas of “good” and “bad” women are still enshrined in the legal system and how the notion of “crimes of passion” favours the passions of men. In particular, it raises the question of whether the legal defence of provocation should finally be abolished.
From the outside, the Balwynbased Ramages seemed to have it all. There was a son at Scotch and a daughter at Lauriston. James was director of a company that reporcelained baths and Julie was a financial controller for a fashion house. Their dinner-party companions included lawyers and CEOs.
The family friend James Ramage confessed to in a hotel on the night of the killing was criminal barrister Dyson Hore-Lacy, SC, best known as chairman of the Fitzroy football club. A shocked Hore-Lacy called in another lawyer to advise Ramage.
Dr Rob Moodie, the head of the Victorian health promotion foundation Vic- Health, is another friend of Ramage’s. They used to play touch rugby together on Sunday mornings.
He is still shaken that he saw the man the day before the killing and did not realise how close to the edge he was. “I did not suspect,” he says. “You feel guilt for, `Why didn’t I see this coming?’” Some of Julie Ramage’s friends knew there had been a history of violence in their relationship. For others, it was a shock to have to face up close the two misconceptions about domestic violence: “It doesn’t happen to people like us” and “All she has to do is leave.” In fact, separation is a time when women are more likely to be killed.
The jury was told that James Ramage was controlling but heard little detail about what form this took. Jurors did not hear how he had head-butted Julie early in their marriage, breaking her nose and blackening her eyes.
Or of the many times she told people she feared he would kill her. Or about her claims to friends that he routinely demanded sex from her, insisting even when she was reluctant.”
To lead evidence of the sexual contact – that he treated her like a piece of meat when they were intimate – is not relevant to anything, in my submission,” Ramage’s lawyer told the judge.
These claims were aired in court in an earlier legal process called the voir dire, where lawyers argued about what evidence should be put to the jury. Justice Robert Osborn ruled they were inadmissable at the trial, pointing to earlier rulings that such evidence could not be used if it was hearsay, happened too long ago or was unduly prejudicial to the accused.
There are good reasons for the ban on hearsay. It prevents unsubstantiated tittle-tattle from becoming part of the case. But it can also skew the picture.
Evidence of two extra-marital affairs Julie Ramage had – and the way she lied to hide them – was trawled through again and again at the trial. The judge allowed this evidence because “the reasonable possibility of the deceased saying (in that final encounter) that sex with the accused repulsed her could be viewed by a jury as gaining some support from evidence that she had had affairs with other men”.
James Ramage’s fidelity or otherwise was never raised.
Julie Ramage’s relationship with her most recent lover, Laurence Webb, whom she had met a few weeks after she separated from her husband, was used as part of the argument that her behaviour had provoked Ramage to kill her.
The defence painted Julie Ramage as a duplicitous, pleasureseeking, hormone-driven flibbertigibbet. Said defence barrister Philip Dunn, QC: “The Crown says she was frightened her husband might have found out about her having affairs. Well, perhaps she shouldn’t have had affairs in the first place.”
He made much of the fact that she went out to a “lovely dinner” with friends the night she separated and was enjoying her new freedom: “She doesn’t have to answer to her husband or have a meal on the table or look after her son doing year 12.” He boomed with outrage over the way she had fallen quickly for Webb: “She said to her sister she was IN LOVE – IN LOVE! – with Mr Webb … nine days after she’s first gone out with him.
She’s in love with him!” He made sharp asides about the fact that the estranged couple’s daughter knew her mother’s new man – “presumably she’s met him with the sleepovers” – and about the way Julie had hidden her earlier affairs from Ramage: “No doubt you might think (she) was used to lying to her husband.”
Her very femaleness was used to suggest that she was likely to have lost her temper and verbally provoked her husband: “She was in love, and her hormones were such – you will find tampons in her handbag, and Dr Lynch (who performed the autopsy) will say that at the time she was menstruating ¿ Men tend to think women get a bit scratchy around that time.”
In cases where a man claims provocation as a defence for killing his partner, it is common for the dead woman’s sexuality and character to be spotlighted. “Dead women tell no tales; they have tales told about them,” says Professor Jenny Morgan, deputy dean of the law school at Melbourne University. “I speculate that if the defence lawyers don’t sexualise her behaviour, if they don’t emphasise the sex bit, the judge is less likely to leave (the question of) provocation to the jury.”
There is another picture of Julie Ramage, a photograph that police took at her grave site. At least from a distance, glimpsed by accident from across the courtroom, it is unexpectedly lovely.
Her features are visible but the soil has not yet been brushed away from them, and the greyness looks like stone, as if this is the carved face of a goddess being unearthed from some ancient site, an archetypal image of a woman.
Julie Ramage was human, with no claim to perfection. But her friends and family say she did not deserve what was done to her in the Supreme Court of Victoria, and she did deserve that her killer should face the maximum penalty.”
I’m just devastated,” her sister Jane said after the verdict. “Females can have their characters blackened and their struggles as victims trivialised, whereas the abuser’s testimony as to how he was provoked and his emotional state before that is sanctioned by law. The burden shouldn’t be placed on the (dead) woman to vindicate herself and her conduct.”
Does the defence of provocation allow women to be dragged through the dirt so that men can get away with murder?
Troubled marriage THE prosecutor in the Ramage case, Julian Leckie, SC, is a quiet man with a lean intensity. He rarely raises his voice, but his sense of outrage at perceived unfairness can rocket him to his feet in an instant to object.
Leckie painted James Ramage as an aggressive, self-absorbed man. “Was it really (about) getting back a woman he loved, or did he want back the control in the situation?” Ramage might even have strangled his wife with a rope, Leckie argued, and an attempted sexual assault could have been part of the scenario on the fatal day.
Leckie said Julie would never have provoked James. She had been tip-toeing around his anger.”
There is no suggestion in this case of this woman being spiteful or vindictive or nasty … She didn’t have that sort of nature. She had good reasons to fear, and did fear, this man.”
James Ramage’s QC, Philip Dunn, is a Rumpolian character.
Portly, florid and genial, he is a lover of fine wine and wicked anecdotes. He is also a bit of a card; he strode into court some mornings singing “Oh, Dunnie boy …” and nicked sweets from the tipstaff’s lolly jar in the breaks.
He was kindly and amusing when addressing the jury and friendly witnesses but thundered at those who might challenge his case.
As an advocate, his job is to present the best possible case for his client available under the law.
If, as some might think, the law currently advantages men in Ramage’s situation, it is the defence barrister’s duty to make the most of this for his client.
Dunn argued two defences to the charge of murder. The first was that Ramage lacked “intent” – he hadn’t meant to kill or really seriously injure his wife; he just “lost it”. The second was that Ramage had the excuse of provocation; Julie’s behaviour had triggered his loss of control. She went around to the family home to hit him with the truth because she wanted her relationship with her new lover to be out in the open.
It is possible that the jury dismissed the murder count on the issue of intent. If a person kills, but at the time of the killing did not intend to kill or seriously injure the victim, the crime is not murder but manslaughter.
Dunn argued that Ramage might have lost his temper and attacked his wife without intending to kill her. He pointed to the fact that the assault was not premeditated, that it happened quickly, and that there were no injuries that indicated that anything more than a moderate degree of force had been used.
But it is also possible that the jury relied upon the provocation argument, which Dunn pursued more vigorously. The defence does not have to prove provocation; the prosecution has to disprove it, as the burden of proof always rests with the Crown.
This is an important part of the presumption of innocence.
If they relied upon provocation, the jurors would have accepted that its three elements applied in this case. These are: that it was possible Julie Ramage had really said and done the things in their last encounter – more on that later – that her husband claimed she did; that what she had said and done might have been enough to cause him, as an individual with his particular characteristics, to lose control; and that an ordinary person in the same circumstances might have then done what he did – in this case, punch and strangle an estranged partner.
Phil Cleary, whose sister Vicki was killed by her ex-boyfriend in 1987, believes the defence of provocation is a great slur on “the normal man”: “We are belittled by it. It stands for a form of maleness that I don’t want to be party to.”
The Ramage marriage, like most others, had begun with starry- eyed affection. The couple had been teenage sweethearts. Julie Garrett was 17 and James Ramage 18 when they met in England in 1978. She had had a happy childhood, going with her sister to pony club and Guides and sailing.
James Ramage had been going out with one of her friends but decided he fancied her more. Julie was studying for her A-levels but her father took her out of school when he discovered she was having a physical relationship with Ramage. If she was old enough to have sex, she was old enough to work, her father told her.
They came to Australia separately in 1978 and returned briefly to England to marry the following year. During the separation, Julie told a marriage counsellor that she had fallen in love with James because, “He was charming and good looking, I was a bit oppressed at home ¿ We both liked sport, going out and dancing, and we were both Virgos.”
The marriage was troubled from early on. They separated for six months in 1984 and both had relationships with others. After they reunited, Julie fell pregnant with a son, now 19, followed by a daughter, now 17.
Later came the head-butt and the broken nose, and Julie began complaining to others that James was too controlling: he chose her clothes and nail polish and hairstyle, he made the money decisions, he wanted to be with her all the time and resented her passion for horse riding – and he broke glasses when he was angry and was potentially violent. She told them she stayed in the marriage for the sake of her children.
Her family and some women friends knew of her troubles but to many in their circle, their lives looked fine. The only hint her husband’s business partner had, for example, was a comment from Julie one day that, “You don’t know what goes on behind closed doors.”
Friend Rob Moodie told The Age, “I was surprised when they broke up. They seemed to be getting on. And we’d had them to our place and not noticed anything.”
He had never seen any harshness from Ramage towards Julie.”
To me, he was likeable. Very ambitious; work-wise, society-wise, he wanted to create a space for himself. I think in a sense he was out to prove himself, that he could make it. He’d come from the UK at an early age, didn’t have any major formal qualifications, and sort of worked his way up the ladder.”
Julie’s sister Jane Ashton says Ramage wanted a Home Beautiful wife. Marriage counsellor Thomas Patterson, whom the couple saw for one session after the separation, told the court: “Julie felt she had to be a super housewife and mother, but also work hard to earn money and also be an attractive hostess and wife. Recently, she had just said `Whatever’ to him instead of fighting him, and this had just built up the hatred inside her.”
Her best friend, Gilda Pekin, says Julie saw that her marriage was different to those around her.”
For the better part of 20 years, I’ve observed Jamie Ramage preoccupied with his personal balance sheet of money, possessions and useful connections. She wanted friends regardless of their value in terms of his personal balance sheet.”
He had one set of standards for men and another for women.
He made it difficult for Julie to study, often not turning up to mind the children and complaining about the cost. He belittled her efforts in becoming employable and building a career.”
She looked at other women and knew that her life should be different. She told me this many times.”
By 1997, Julie had begun the first of two affairs with married men. In 2002, she left James overnight after an argument in which he pushed her out of bed.
Her sister says she actually tried to leave several other times over the years, but Ramage would find her packing her bags and talk her out of it or woo her back with flowers and promises to change.
Last year, five weeks before her death, Julie left when James was overseas on a business trip.
She took their daughter, arranged a $125,000 overdraft on a joint account (they were worth $2.6 million) and moved into a unit in Toorak. Their son stayed with his father.
Her departure brought Ramage undone. He tried desperately to regain control of the situation.
He rang friends incessantly and asked them for advice and to intercede with Julie. He spent night after night going through lists of self-improvements he should make to win her back.
He gave up sleeping to wander around the house or weep in his room. He saw four counsellors.
He phoned Julie, ate with her every week and sent her flowers with love poems, including one that began, “Sail away with me, my honey …”
The defence said it was during this time of separation that Julie Ramage’s provocation of her husband began.
Her daughter told the court that Julie was frightened that “he would do something to try to hurt her, like kill the horses or … control the money, maybe be violent towards myself or her”. She said her mother didn’t want to kick her father while he was down. So Julie decided to “let him down gently” – give him time to adjust to the separation before she told him it was final.
Philip Dunn argued that this was duping the man and giving him false hope, particularly as she went to several marriage counselling sessions with him and had promised to attend more. So when she allegedly finally gave him the truth in that last encounter, the strung-out Ramage lost his temper and killed her.”
Do you find it hard to believe that he `lost it’?” Dunn asked the jury. “Of course it’s not, given what you know about his mental ability to stand these sorts of shocks.
That’s like the fly that lands on the bonnet of the car that’s teetering on the edge of the cliff.”
So, first Julie Ramage had provoked her husband by lying to let him down gently, and then she had provoked him by telling him the truth bluntly before he was ready to hear it. The implications of this argument for any woman trying to leave a violent man seem grim.
Even the fact that James Ramage was a domineering man who needed to control every aspect of his life – and that he was a businessman accustomed to ordering people around, a habit he acknowledged he had wrongly brought into his home – was used in his defence: it is this that allegedly reduced his “mental ability to stand these sorts of shocks”, Dunn argued. “He was in a worse position than somebody who might be easygoing.”
The only other witness to the Ramages’ final meeting, Julie herself, was dead. So, as in many homicides where provocation is claimed, the only evidence about what happened in the lead-up to the killing came from the killer.
Critics of provocation argue that in such cases it is particularly vulnerable to fabrication.
In the Ramage case, the only evidence about the lead-up comes from what James told police when he turned himself in – late on the night of July 21, after killing his wife at lunchtime, and after a three-hour legal consultation in the evening.
A videotape of his police interview was played to the court.
Ramage, wearing a dark jumper and jeans, is composed and sits at a small table opposite a policeman.
In a flat, gravelly voice, he paints himself as a distraught husband and father trying desperately to mend his family.
He does not mention anger but repeatedly talks about his “hurt” and the “hurtful” things Julie had allegedly said to him, as if what he had done was in emotional self-defence. “That’s why all this, us splitting up, has been so hard, because the family’s so important to me.”
With his swollen right hand kept out of view for all but a moment, Ramage says his wife had sneered at the renovations he had asked her over to admire: “She ¿ made that ¿ wank, wank sort of gesture.” He says Julie told him that his daughter did not want to stay with him as much, “and the daughter’s really important to me”. And that Julie said she should have left him 10 years ago, and that she was sleeping with her new love, who was much nicer than him: “She was just – just being really very hurtful.”
It was after she said “the sex with me – `It repulses me’ … and screwed up her face” that he knocked her to the ground and knelt down to strangle her. “She couldn’t speak or anything `cos I was holding her neck”. He holds his arms out in front of him and curves his hands to show how they had encircled her throat.
Was she fighting? “She did for a bit, but not for long.” As for the way he spent hours cleaning up after the killing and driving his wife to the bush for burial – it was just “really stupid”.
Philip Dunn portrayed Ramage, who did not testify, as lovelorn. A family friend, Catherine Clark, whom Ramage phoned many times in the weeks following the separation, had a more chilling view.
She told the court Ramage would ask “whether I could perhaps suggest some ways of getting her to come back, to see the mistake she was making. He kind of required her to be back, he didn’t express missing her ¿ She had to return, it was necessary, it was like a building block in a house, something important that was required to be returned to its position.”
She advised him: “You have got to back off, stop applying all this pressure to her, stop doing what it is that she’s trying to get away from ¿ You have got to stop suffocating her because this is why she’s gone.”
Crime of passion
IN THE end, he literally suffocated her. It was in many ways a classic crime of passion. The legal term used to describe such loss of self-control is “the blood boils”.
The law has long allowed for what it calls such “human frailty”; provocation is there to distinguish between a killing that is committed spontaneously in a red haze of rage, and one that is planned and executed in cold blood. The former is seen as less culpable.
But why should sexual jealousy or rage over separation be emotions that the law privileges with such understanding? Should provocation extend to this kind of situation? Ramage’s friend Rob Moodie, who has faithfully visited him in Port Phillip Prison, nevertheless pointed out to him after the killing that, “This was not a crime of passion. It was a crime of possession.”
Provocation developed in the days when murder attracted a death penalty. Historically, it covered the way men sometimes reacted with instant rage in drunken brawls or when there were challenges to their honour.
It has long been criticised as difficult for women to use because it favours the spontaneous impulse (abused women, for example, usually kill a partner in “cold blood” when he is drunk or asleep because they fear him. Provocation is harder to argue in such cases).
Melbourne University’s Professor Jenny Morgan believes the defence of provocation “is so imbued with misogyny that I think it is unsalvageable. The traditional provocation case is like the Ramage case, a sexual jealousy case.
Women hardly ever kill in those circumstances.”
Women who kill their partners generally do so in response to violence.
Men kill their partners because they’ve left them, they taunt them, they’re doin’ it with somebody else, they might be doing it with somebody else … And that has long been accepted. It’s not a concession to human frailty. It’s a concession to male frailty.”
But Melbourne criminal barrister Peter Morrissey disagrees. “I think the defence itself is very important.
It really recognises the reduced culpability of a person when they are in an extreme state, whatever the reason for that may be … It’s got to function, because it does allow some level of mercy and humanity in a verdict which otherwise could be quite harsh.”
Does it favour men over women? “That argument is a crock. The defence is available to women; it’s capable of being used by women quite logically ¿” But some research suggests that women have much less success with it, and the statistics show that Morgan, who wrote an occasional paper for the Victorian Law Reform Commission on Who Kills Whom and Why, is right: women rarely kill a partner in a jealous rage or separation assault.
In Australia, one in five killings is between intimate partners (an average of 77 a year). In about three-quarters of those cases, men have killed women, and 70 per cent of those men killed for reasons of jealousy and control. But in husband killings, the motive was very different: 70 per cent of the women had suffered violence at the hands of the man they killed.
A previous report by the commission concluded that the defence of provocation was not gender-biased because men were more likely to raise the defence when they killed a man than when they killed a woman, and it was more likely to be rejected where a man killed a woman (36 per cent) than where a man killed a man (12 per cent).
The report found that when women raised provocation, they were more likely than men to be successful (in this study, all eight women who raised provocation in a domestic context succeeded).
But even this report found that there were still at least three cases where men were successful in arguing provocation on the grounds merely that a woman was leaving or threatening to leave.
And more recent research by the commission found the defence was of little use to women.
Last year’s Defences to Homicide discussion paper by the commission reported that between 1997 and 2001, 24 men raised provocation at trial. Eight of them (33 per cent) received a manslaughter finding. None of the three women (out of 16) who raised provocation in same period succeeded. All were convicted of murder.
The verdict has a big effect on punishment. Manslaughter attracts a maximum sentence of 20 years (median six years) compared with a possible life sentence for murder (median 17 years).
The commission’s discussion paper pointed out that many commentators found it offensive that it can be murder for a battered woman driven by desperation to kill her partner, but only manslaughter for a man to do the same after discovering his partner committing adultery. “It is seen to send a message to women that their lives are worthless.”
The commission’s final recommendations on the issue of defences to homicide will be tabled in State Parliament later this month.
Morgan says her favoured option is to abolish the defence of provocation entirely, but to strengthen the law of self-defence to make it easier for people – men and women – who snap and kill their tormenters.”
To abolish provocation and not address self-defence would be a major problem.”
In some ways, the current provocation defence says, “She had it coming.” But the law is less likely to point out that he might have had it coming. Technically, under Victorian law, if people put themselves in a situation where they are likely to be provoked – “self-induced provocation” – they cannot rely on provocation as a defence. But the commission says this is applied inconsistently.
James Ramage had been insisting for some time that his wife come to see the renovations at the family home. She had been reluctant, friends said, and her mother later said that she would never have gone if she had known she would be alone with him; she thought the builder would be there, but Ramage had paid the builder to take the afternoon off.
It is not clear which of them raised the topic of the end of the marriage, but Ramage should have known what to expect, having heard most of these things from Julie before. However, the question of self-induced provocation was never raised.
No wonder: the commission’s paper cites a case in 1989 (R v Gardner) in which a man broke into a house with a knife to confront his ex-partner, whom he had several times threatened to kill. He claimed that she taunted him about having had sex with a friend, who was sleeping in a separate room. Even in this extreme case – he broke in, he arrived with a knife – an appeal decided that the killer should have been allowed provocation.
Criminal barrister Peter Morrissey says, “I think the opposition to provocation is largely because there’s a sense of outrage against the very argument that’s being put. Sometimes it’s a shockingly nasty bloke who’s killed his victim, who then can’t argue back, and then he says she was provocative.”
(The lack of witnesses) is not limited to the provocation defence; that’s the case with all homicides, unless they are done in public. Rather like sex crimes, homicides are done in private.”
But, as in sex crimes, the provocation defence lends itself to the argument that she led him on. She made him lose his self-control.
Like Eve with the apple, woman is still responsible for the fall of man.
Morrissey says it is important to leave it to the public, in the form of juries, to decide the questions.”
The opponents of provocation have got a deep distrust of the jury system. They think it will be filled with those who are unenlightened and have not been to gender-awareness classes and are not aware of how nasty men can be … But the defence doesn’t know the characteristics of jurors.
You can’t select a sexist jury. If the defence argument is a crock, the jury will find them guilty.”
Another criminal barrister who has often used the provocation defence, Terry Forrest QC, disagrees. He thinks provocation should have been abolished when the law abandoned the death penalty for murder. Judges should be able to take provocation into account when sentencing, he says, but its continued existence as a verdict is obsolete and distressing to the families of victims.”
The relatives of the deceased find it very hard to come to terms with the fact that verdict has been diminished from murder to manslaughter.”
The aftermath JULIE Ramage has lost her life and James Ramage’s has changed forever. He will be sentenced on a date to be fixed. He sat frozen, his face blank and his eyes down, for most of the trial. “He’s down at Port Phillip and he’s doing the garden,” says Rob Moodie. “He’s very much aware of how completely he’s screwed everything up. His life. He’s actually killed someone he loved, although one might question what form that took.”
For someone who lives life through his kids, he’s done the worst possible thing. He’s absolutely shattered it – let alone his own family, and her family, and his friends ¿ He has certainly expressed remorse.”
Moodie oversaw a statewide project on domestic violence as the Ramage tragedy unfolded. “The personal and the professional collided,” he says. He brings to our interview his Vichealth report, which shows that domestic violence is the most important preventable risk factor for illness and injury in women aged from 15 to 44.
What does he think went wrong for James Ramage? “I think his issue is, if you build an image – and he’s not the only one who’s done that – of what your family is, and invest in the material things around, and have your kids at the right schools, and your partner, and that all fits into a preformed notion of what an ideal family is, and Julie walks away from all that – then it all comes crashing down. I think he drew a lot of how he saw himself from how other people would see him.”
And again, he’s not the only one doing it. It’s coming back to the fundamental problem of the poor mental health of men, in the sense of not being comfortable in your identity.”
Asked why he has kept up the friendship – he and his wife were also friends of Julie’s – Moodie says, “You mean, why don’t I hate him? Because I have a fundamental belief in everybody’s capacity to reform themselves; that everybody has the possibility of salvation, if you like.”
If suffering leads to salvation, Julie’s family are well on the way.
Her mother, Patricia Garrett, has at times found the grief overwhelming, which has led to a stay in the Melbourne Clinic. Her father, Raymond Garrett, was taken to hospital with stomach problems after testifying at the committal.
Friends of Julie have developed depression or changed jobs due to the stress of the death and the court case.
Her sister, Jane Ashton, was already a member of Amnesty International, already outraged over problems such as bride burnings in India, but now is fast becoming an activist against what she calls Australia’s honour killings.
Phil Cleary says, “It is an honour killing. James Ramage has killed Julie Ramage to avenge his male pride, to reassert his status in the world. He saw himself as the patriarch of the family and refused to accept her right to leave.”
Ashton says the defence of provocation fails to protect women who want to leave their partners.
And that the rules of evidence do not allow for the fact that “violence and abuse against women is silent, that it happens behind closed doors, and that women only tell a handful of very close friends, often in private. They’re not going to tell a room full of people, particularly if it’s sexual.”
Ashton says Julie’s friends were deeply distressed at the way their evidence had to be led in court: “None of Julie’s story was coming through.”
She was frightened. You only need to see photos of her; she is always perched on the end of her chair. She used to break out in cold sores, and at times she would lose lots of weight … He would convince her that her family was wrong, her friends were wrong, and he knew best. And that she was naughty and ungrateful.”
But my sister was a very happy person, she was very positive. No one else could have kept their spirits up in the way she did. She always tried to look on the bright side, she made the best of it for her children, she tried to make the best of it for Jamie. They had so much potential.”
Julie’s funeral was at St John’s in Toorak on July 31 last year, 10 days after she was killed. The woman described there bore almost no resemblance to the woman now immortalised in Supreme Court transcripts.
Her friend Gilda Pekin, who had known Julie since their children were babies together, told the congregation of 1,200 people, “She was always there. Julie was there when I needed help nursing my Dad. She took all four children to the park regularly so I could rest. Call it Julie’s caring recipe.”
Remember fruit duty, the Easter Bonnet parades? Julie was always there with style and a smile. Remember the Deepdene Primary fete? … Jules was there, capable and a team player. Remember VicKick and the basketball at Kew High School? Julie was there with the same style and smile, proud of her kids. Julie was inclusive and generous.”
Julie came for dinner Thursday a week or so ago. Gorgeous, black high-heel boots, that black ruffled skirt and the black and silver jumper. Greetings. I looked at her boots. She looked at our new timber floor and began to take the boots off saying, “Oh oh, the glam’s gone now.” And the thick woolly black socks were revealed, complete with holes. No one cared …”
Our beautiful friend, Julie, just happened to be beautiful on the outside as well.”
Julie Ramage was beautiful, and witty and kind. And, like all of us, complicated and human and flawed. In the Supreme Court, she became a shadow of herself.

First published in The Age.

The last stone – what the judge said this week

LIKE DRACULA, the Ormond affair has resisted a natural death. One lawyer who has followed the case couldn’t believe it was back in court again this week: “I thought `Oh God, the hand out of the grave! Kill it! Kill it!”‘

This is probably the one point on which all the parties concerned could reach heartfelt agreement. But this week’s Supreme Court defamation case has not only reignited the story; it has resulted in the legal “outing” of the two young women.

This defamation case resulted from an attempt by the academic who had advised and supported the young women, Dr Jenna Mead, to respond to author Helen Garner’s 1995 book, the first stone. Mead’s 1997 book of essays, ‘bodyjamming’, included a chapter entitled “Sticks and Stones”. It was written anonymously by one of the young women, now known to be Olivia Mayer, and is the only public comment either has ever made.

In it Mayer described what it was like to be at the centre of such a maelstrom: “I could be driving my car, switch on the radio and tune into an argument between several strangers on the topic of my breasts.”
She did not write about the alleged incident with Gregory but did attack the way the complaint had been handled by the then vice-chancellor of Melbourne University, David Penington, and Suzy Nixon, the university psychologist he called in to conciliate between Gregory and the young women.

Nixon sued Jenna Mead and bodyjamming’s publisher, Random House, for defamation. In her statement of claim to the court, she argued that the chapter wrongly suggested she had breached professional confidentiality and used her position as conciliator to try to shut down the complaints.

Nixon’s statement says the chapter suggested that her recommendation that Gregory remain in his position was wrong and dishonest because “she was merely following the instructions of the Vice-Chancellor, to whom she directly reported”.

This week Nixon won a resounding capitulation: an out-of-court settlement that included a retraction, an apology, costs and an undisclosed amount of damages. “Random House and Jenna Mead now accept that this chapter contains serious errors of fact concerning the role of and behavior of Ms Nixon as conciliator and that the chapter was damaging to her,” the publisher’s lawyers told the court.

“Random House and Dr Mead unreservedly withdraw the false allegations contained in the chapter and apologise for the hurt and distress caused to Ms Nixon.”

The settlement came soon after the judge, Justice John Hedigan, had ruled that the two young women would have to give evidence under their own names, which had been suppressed for nearly a decade.

He said they could not expect to remain anonymous forever and it would be “curious and unjust” if they could write about the past anonymously while those they wrote about were denied such a “luxury”. By writing “Sticks and Stones”, Mayer had ignited “the fires of the past” and could not now expect to stay shielded. By the next day Mayer and the other original complainant, Kirsten Campbell, had been named in the press.

Mayer and Campbell are maintaining what is left of the barrier around their privacy. They still refuse media requests for interviews and their supporters will not reveal anything of the women’s circumstances.

Nor will anyone else associated with case talk about it, including Alan Gregory, who still lives in Melbourne.

Jenna Mead and her husband, poet and academic Philip Mead, have left Melbourne to lecture in English at the University of Tasmania. Author Helen Garner has returned to Melbourne after more than five years in Sydney. Suzy Nixon left Melbourne University in 1996 to set up her own practice as a therapist and organisational consultant.

All of them want to put this saga behind them. Only with hindsight will we know whether this week’s events give them their wish; whether this case is the final stake through the heart of “the Ormond affair”.

First published in The Age.

Gay women call for IVF law reform

Haley Atkinson hadn’t planned on becoming a figurehead for gay rights. All she wanted was a baby. When she and a gay friend failed to conceive conventionally, they turned to IVF, which in Victoria is forbidden to gays.

They achieved the baby, notoriety and a court hearing. Ms Atkinson and Haydn’s father, Sergeant Mark Keen, then both police officers, were charged with having provided false information or failing to provide relevant information when applying for IVF treatment.

On Tuesday, they sat holding hands as the charges were dismissed by Mr John Hardy in the Melbourne Magistrates Court. He found there was no evidence against Ms Atkinson and insufficient evidence against Mr Keen. He awarded costs in their favor.

The media could not report the case until a suppression order on the proceedings was lifted yesterday.

Ms Atkinson, who has since resigned from the force, said she was relieved to have the ordeal over: “I have no regrets that I have a beautiful baby, but I wish it hadn’t had to have been such a big event.”
She said it was time the law was changed. “Every single person I have come across in shops or whatever has said (the charges) were a load of nonsense. People who know us say, `You’re good people; you deserve to bring up a child because you have a lot of love to give’.”

Ms Atkinson lives with her partner, Ms Joy Murphy, but Mr Keen is also involved in raising six-month-old Haydn. Both women regret that Ms Murphy has no legal rights over the child. She cannot adopt him without Ms Atkinson giving up her rights as a mother.

Ms Murphy said, “Legally, I don’t exist. But I see the look in Haydn’s eyes when I walk in the room. He loves me, and Haley knows it and Mark knows it.

“I may have no legal rights but Mark is the most decent man I have ever met. He wanted to buy a high chair when Haydn was born and he checked with Haley first about whether it would offend me. We are all good friends.”

Both women said that the Infertility Treatment Act contradicted the Equal Opportunity Act, which forbids discrimination in provision of services on the grounds of marital status or sexual orientation.

Dr Ruth McNair, convenor of the Fertility Access Rights Lobby, called on the State Government to make artificial insemination and IVF available to lesbians and single women.

She said New South Wales, Queensland and Tasmania did not confine such treatments to married or de facto heterosexuals. International human rights covenants signed by Australia obliged governments to provide equal access to fertility services.

But the secretary of the Australian Family Association, Mr Bill Muehlenberg, said the rights of the child should also be considered, and the traditional family unit was the best way to raise children.

Mr Muehlenberg said the risk of child sexual abuse doubled in families where the child was not living with its biological father, and that in a homosexual relationship, only one partner could be a biological parent to the child.

The Minister for Health, Mr John Thwaites, was unavailable for comment yesterday.

Ms Atkinson would like more children, but she will probably travel to NSW for treatment.

First published in The Age.

Kiss or kill

“Every woman adores a fascist

The boot in the face, the brute

Brute heart of a brute like you”
– Sylvia Plath, ‘Daddy’

MELBOURNE woman “Lorraine Brown” loved not wisely, but too well. She wrote to her husband of her passion for him: “The very thought of you and our love takes my breath away. My love for you, Trevor, is a tune, and every waking moment you are ‘Always on my mind’. My darling, your wants, needs, hurts are all mine. My very life is yours.”

The letter was read at her 1994 trial for his killing. She wept inconsolably throughout the hearing, which twice had to be adjourned when she could not contain her sobs. She told the court, “Yes, I wish I could have taken all his hurts … rather me have them than him … I loved that man. I would do anything for him.”

Her tenderness was rarely reciprocated. Trevor locked his wife naked in a cupboard, urinated on her, vomited on her and refused to let her clean herself afterwards. He raped her in their car in the street, forced large objects into her vagina, throttled her and dragged her around on the floor.

Yet, the night she was admitted to hospital after a fight in which he cut her fingers to the bone, she took off in a hospital gown to go home and make up with him. She found him drunk, stupefied, unresponsive. When he did acknowledge her attempt to embrace him, he called her a “f…… c…” and told her he would leave her. She stabbed him to death. She received a 28-month sentence, with a non-parole term of seven months.

The feminist analysis has it that such women are victims of their brutal men, who will not allow them to leave; that they are rejected and silenced by a community that does not want to have to deal with them; and that, when driven to kill in self-defence, they are dealt with harshly by a legal system that largely ignores the abuse they suffered.

The highest court in the land has now been asked to incorporate this view of gender politics into the Australian legal system. Bendigo woman Heather Osland has appealed against a 14-year sentence for her involvement in the killing of her sadistic husband, Frank, in 1991. Her case might set a precedent about the legal significance of battered women’s syndrome.

At present, as one lawyer told a jury, a battered woman cannot claim self-defence unless she kills while she’s “looking down the barrel of the only gun in the house, effectively”. That is, she must have killed while facing an immediate threat, and she must not have used any more force than was being used against her.

It is also difficult for battered women to claim provocation, which can reduce a murder charge to manslaughter, unless they can prove that they snapped in the face of an immediate provocation.

In reality, most abused women who kill attack their partner while he is unarmed, drunk, drugged or asleep, a reflection of differences in size and strength.

In the Osland case the main ground for the appeal is that Heather, who drugged Frank and held him as he twitched after her son David bludgeoned him to death, was convicted, while David, who struck the blows, was acquitted.

If the one who wielded the weapon did not commit murder, of what, then, can Heather be guilty?

But Heather Osland’s barrister, Dr Jocelynne Scutt, also told the High Court in April that judges should be required to tell juries to take into account the effects of years of battering, which can leave a woman feeling that the only way she can escape is to kill her jailer.
There is concern that such a change could be a licence for bedroom vigilantism. Justice Michael Kirby said he could understand someone reaching breaking point, “but that we would be laying down the legal principle that people can go around shooting sleeping people … I certainly could not agree to that … You can’t make people immune from the law of homicide”.

Scutt told him that her argument did uphold the sanctity of human life – it supported the battered woman’s right to preserve her own.

But is it as simple as that? Heather Osland left Frank eight times, but that means she went back to him eight times.

At least once she was rescued by others; her local minister and men from her parish descended on her house with station-wagons and trailers, packing up her, her children and her belongings and taking them to a safe place.

But she soon returned to her husband, as so many battered women do. How can you help women who seem to collude in their own abuse? Is there a moral obligation to rescue people who don’t want to be rescued? And why on earth do these women put up with it, anyway?

The philosopher Jean-Paul Sartre would have accused them of living in bad faith, of not being true to themselves, of not taking responsibility for their lives. But then, Sartre did not believe that people can be driven by inner forces of which they are unconscious. He never came to terms with the fragility of human freedom.

THE High Court of Australia is a stolid, heavy-set building, the architectural embodiment of judicial gravitas. It dwarfs the couple of dozen women milling about its entrance this crisp Canberra morning in “Release Heather” T-shirts.

They have brought life-size cut-out figures made by women who have lived through domestic violence. A mother looks down at a small child clinging to her legs; her hand is tied to the child and the child is tied to her feet. Another female figure is hunched over a set of rosary beads: “I kept praying he would change, I kept praying he would change, I kept praying he would change . . .”
Inside the court, the issues face a different kind of scrutiny. Even some feminist lawyers privately believe that Osland’s case was not the best vehicle for the High Court action and regret that the sisterhood did not wait for a better one.

Frank Osland was undoubtedly a brute. He bashed Heather and her four children. He beat the dog so badly it had to be put down and he killed the children’s cat with a piece of pipe (perhaps it was no coincidence that this was the weapon Heather and her son chose for him).

Frank Osland raped Heather so fiercely that she suffered chronic urinary tract infections and tears to the vagina and anus. He tried to exercise complete control over the family and often threatened to kill them and chop them up. Late in Heather’s joint trial with her son, David haltingly, shamefacedly, revealed that Frank had also raped him when he was 14.

But Heather Osland and her son dug a grave for Frank before he was killed, and she later was recorded on police telephone intercepts saying that the killing had been planned for a week. This suggests premeditation.

Other feminists, such as lawyer and former equal opportunity commissioner Moira Rayner, say this case tests whether provocation and self-defence must relate to an immediate threat: “Because the killing was not that immediate, it’s really pushing the envelope. ”

Rayner’s trust, set up to help fund equal opportunity complaints, contributed to Osland’s appeal because it raised issues of access to justice for battered women, “who have never been able to avail themselves of the provocation defence”, Rayner says.
She cites the Western Australian case of “Nina”, a woman who shot her husband dead when he taunted her about how he had sexually abused her children.

“Everybody said the law of provocation was adequate. But on appeal, the judge couldn’t understand that she was acting in a state of automatism . . . The Nina case showed me that the judge didn’t understand that someone can suddenly snap after 30 years of being mild . . . because of what had happened over decades.”

Rayner is one of many who argue that the law’s “bar-room brawl” immediacy requirement, designed for the eruptions that typify male loss of control, does not allow for the “slow burn” experiences that drive women to lethal violence.

A lecturer in law at Melbourne University, Bronwyn Bartal, says that provocation privileges anger as a driving force over other emotions including fear and compassion (as in the euthanasia of a suffering spouse).

She also criticises the extent to which self-defence requires “proportionality”: that defensive force be no stronger than the force used by the attacker. It developed from the rules of honor and fair play regulating the duelling encounters of aristocratic males. But women are usually smaller and weaker than their partners, says Bartal, and have little choice but to use a weapon. (Women are far more likely to be killed by their partner than are men; a NSW study found that 73 per cent of spouse killings were committed by men.)
Forensic psychologist Dr Kenneth Byrne often gives expert evidence about the typical pattern of battering partnerships. He says the woman is often isolated, deprived of food or sleep, threatened with torture or death, sexually abused and instilled with a sense of terror that makes it difficult for her to think clearly. Severe batterings are administered unpredictably and have little relation to her behavior, which leaves her feeling helpless to avoid them.
Bashers tend to be men who blame others for their problems, deal poorly with stress, and believe that wives and children are there to serve them. They use sex as an act of aggression to humiliate women and bolster their own shaky self-esteem. They are also pathologically jealous.

But the theory of battered woman syndrome, as this cluster of characteristics is known, has its flaws. Many of the women supposedly suffering “learnt helplessness” try to escape, and it seems paradoxical to argue that a woman who killed her abuser felt helpless.

Mark Weinberg, then a QC for Victoria’s Office of Public Prosecutions, told the High Court in the Osland case that any change to the legal significance of the syndrome should be left to Parliament: “It’s too important.” Male fears of women’s untrammelled murderous impulses were alluded to more directly at Osland’s original trial, when Justice John Hedigan touched on the need for her sentence to be a warning to other women: “Perhaps it’s just generally deterring wives from killing husbands . . . There are certainly 48 per cent of the community who are in favor (of that), whatever I think.”
Phil Cleary cannot be counted among them. Cleary is the former independent MP whose sister, Vicki, was tracked down and knifed in 1987 by an ex-boyfriend she had left four months earlier. Cleary is astounded that Heather Osland received a 14-year sentence while his sister’s killer served only three-and-a-half years. “If provocation is no more than ‘A woman left a man, so he’s pissed off’, that is a barbaric view of the relationship between men and women,” he says. “That is looking at women as property.”
He holds the media partly responsible, citing newspaper stories about the murder of women by men that had dangerously euphemistic headlines, such as “Love pulls the trigger”. He also believes that there is a class element: “The killing of women is written off because they are usually working class, so they’ve got no political clout.”

But he wonders whether the imbalance is really due to an underlying force that is more pervasive but less tangible, perhaps the Judeo-Christian notion of woman as the root of all evil: “Is it Adam and Eve? Or is it deeper, something about the relationship between men and women?”
THE LOVE Lorraine imagined she had with her husband was not merely the fantasy of a disordered mind. There are intense ties in these couples, and such men can be charming, affectionate and convincing in their protestations that it will never happen again. “They are very loving and attentive, and the woman is so important to them,” says Rosalie Pattenden, a counsellor with Relationships Australia.

Associate professor of law at Melbourne University, Jenny Morgan, is impatient with the question, Why doesn’t the woman leave? She points out that most of them do leave, repeatedly, but are often obsessively pursued. “The real question is, ‘Why won’t he let her go?’ ” (And, however else these women’s perceptions might be distorted, their fear that the man will kill them if they leave is solidly founded: almost half the women murdered by their partners die as a result of trying to separate.)
Morgan says it is hard for women to leave because they are financially vulnerable and anxious about caring for their children alone – and, often, they love the man. “In all sorts of other circumstances we think love is a fine emotion,” she says. “Women are supposed to be sharing and caring, and we admire that elsewhere, but suddenly here, we think they’re stupid. All we can see from outside is the violence but relationships are always more complicated than that.”

Kerrie Collings, a Queensland psychotherapist who treats battered women, says these relationships are the result of disturbed childhoods. She says every child wants to perceive its parent as good in order to maintain a desperately needed sense of attachment: “If the parent is abusive, the child might cut off all feelings, so that they don’t feel anything at all, or they might idealise the other, as in ‘They’re doing it for my own good; I’m bad, I deserve this.’ ”
COLLINGS says about 4 per cent of people suffer “disorganised” attachment as children, in which emotional links with others are based on threats and fear of abandonment. This becomes a model that they carry into their adult relationships. (It is typical for battering to intensify whenever a woman tries to assert herself in a relationship, which increases the man’s fear that she might decide to leave him.)

But if both partners have suffered similar childhood abuse, why is there a gender split in their response to it, with men growing up to batter and women to be battered?

Dr Jon Kear-Colwell, senior lecturer in forensic psychology at Charles Sturt University in Bathurst, points out that all male mammals are more aggressive than females. Innate differences are then reinforced by child-rearing practices: “Often when boys are punished by their parents, they are given a smack on the leg; it’s the behavior that’s dealt with. When girls are naughty, guilt is used to make them feel responsible.”

It may not be that women love the fascist boot, but they do tend to feel responsible for having somehow provoked the kick (and, like Lorraine Brown, responsible for “healing” the emotional wounds of the man who delivers it).

The Wounded Prince and the Women who Love Him is a paper by two American family therapists, Gillian Walker and Virginia Goldner. They argue that many of our culture’s myths of female love (such as Cordelia’s for Lear) centre on the notion of the wounded male nursed by the compassionate woman.

Walker and Goldner say the violent man justifies himself by describing his partner as a bad woman: she is provocative, she is or will be unfaithful, she is insensitive to his vulnerabilities. “And then, in the honeymoon of contrition and forgiveness which follows the violence, this evil female figure transmutes into the longed-for, irreplaceable nurse/mother, who knows and cares for this hurt man/boy better than anyone else . . .”
The woman is beset by self-doubt. To protect the relationship, she holds on to seeing him as wounded and in need of care. This causes the man to get in touch with emotions that frighten him, such as his infantile terror of abandonment, so he feels that the woman’s love weakens him. The cycle of attack and contrition continues.

This kind of psychologising exasperates women’s activists, most of whom also dislike the concept of battered woman’s syndrome. They analyse the issue politically and see battering as an extreme outcome of the power imbalance between men and women in society. The battered woman is not mentally ill; she is having a normal human reaction to extraordinary stresses. They have a case. There is evidence that an abusive environment can reduce anyone to psychic rubble.

In 1973 a Californian psychology professor, Philip Zimbardo, recruited intelligent male middle-class university students to live in a mock prison for two weeks. The men were screened to ensure they were psychologically stable and randomly assigned the role of guard or prisoner.

The “guards” quickly turned sadistic. The abuse they meted out to the “prisoners” triggered in their captives symptoms including extreme depression, disorganised thinking, uncontrollable crying and fits of rage – classic responses of the battered woman. The experiment had to be aborted after only six days.

Zimbardo later wrote that a perverted symbiotic relationship had developed: “As the guards became more aggressive, prisoners became more passive; assertion by the guards led to dependency in the prisoners; self-aggrandisement was met with self-deprecation, authority with helplessness, and the counterpart of the guards’ sense of mastery and control was the depression and hopelessness (of) the prisoners.”

Zimbardo wondered whether this happens in the everyday social “jails” of racism, sexism – and bad marriages.

But the fact that they chose to flee their jail can be no comfort to women such as Vicki Cleary. The role of guard is much more powerful than that of prisoner, and in real life, there is often no outsider to call an end to the game.

“Sharon” had tried to leave her husband, “Pete”, many times. Once he caught her and beat her with a wheelbrace; another time he terrorised the refuge she was staying in. When she got right away and hid interstate, she made the mistake of sending a letter to her children in which she mentioned that it had been raining. Pete phoned meteorology to find out which part of the continent had been having wet weather and next day packed up the kids and drove from Queensland to Perth to haul her back.

Over the years he tied her to a tree and lashed her, aborted her with a teaspoon and forced her to drink his urine and her menstrual blood.

Sharon told the court that one baby, Molly, did not die of cot death as she had reported but had been smothered in her cot by Pete. He repeatedly raped another daughter, Jenny, from the age of eight through to 14, when Sharon finally found out and told police. “Got rid of one and f….. the other,” he would brag to her.

One morning an exhausted Sharon crawled out of bed to make Pete breakfast. He had been sick and bad-tempered for days. He refused the meal and snarled when she tried to return for more sleep: “What do you want to get back into f…… bed for, you dog?” She fetched his gun – she had always been terrified of guns – and shot him dead. She hid the body in her yard.

That’s another problem with these cases; the women often “snap” over a seemingly trivial incident.

In Sharon’s case the prosecutor, Tom Gyorffy, pointed out that “We, as a community, wrestle every February with our consciences over having an open season for shooting ducks. Human life is worth more than that. Nobody in this community, no matter how nasty they are, is shootable.”

Juries are often told that a trial is just a sifting of the relevant facts, not a search for the truth of everything that happened. Enough was prised from Sharon, in the clipped, stony questions and answers of the courtroom, to win her a verdict of manslaughter and a suspended sentence. But the police record of interview at her arrest gives hints of another aspect of the story, one not put to any jury.

A week before the shooting Sharon had received a letter from a friend who had lost a grandchild to cot-death. It brought back so many memories of her Molly, she told police. And she had no trouble remembering the date on which she had killed Pete, whose body had been decomposing in her yard for months. “It was the 21st of May because it was the day – it was the day – it was the day of me daughter that died’s birthday. Molly Rose. She would’ve been 25.”

But then, courts are not required to know the full truth about everything.

The names of Lorraine and Sharon and their families have been changed.

First published in The Age.

Abortion in the first person


AT 65, “Margaret” is still beautiful. She is carefully groomed, immaculately dressed and graciously housed. You would never guess the stories she has to tell; her middle-class friends never have. But Margaret knows what it was like to have abortions in the 1950s, when making that choice made criminals of her, her husband and her doctors.

“I had five abortions, two without anaesthetic,” she says. “I did it to put my husband through medical school. I became pregnant very easily. We were using contraception but the only things available were the Dutch cap or condoms. People used to say that the Government made 25 per cent of condoms ineffective; I don’t know if it was true or not. Later, when I tried the pill, I vomited and had migraines, so I had to go off that too.

“The first abortion was before we were married. My husband took me to a little suburban house near Clifton Hill and a very nice man did the abortion under anaesthetic.

“I felt I was a bad girl to have become pregnant before I was married – that was a very shameful thing in those days – but the fact of a baby that might have been didn’t worry me at all. I had done matric biology, and I knew that at six weeks it was just a mass of cells, like a raspberry.”

But as she talks about the second abortion, a very different experience, tears slide down her face. She was married but her husband was still studying and she earned their sole income. This time, the nice doctor told her she was too far gone for him and sent her to a strange GP. “I’ll always remember that he had brown and white spats on his shoes, the kind I always associated with American gangsters,” she says.

“He took me into a back room. Three other girls were in there already, with their legs up. I had to sit up on the edge of a bench and open my legs; there was a bucket on the floor underneath me. This guy inserted something into me that was so hellishly painful, and twisted it the way a corkscrew goes into a bottle . . .” Her voice cracks.

“In the midst of it all, I was able to say to him, ‘You loathsome man, how can you do this to women?’. . . We were like cattle, and this bloody man was doing it for money! Making money out of women’s misery.

“And he said, contemptuously: ‘I’m saving beautiful young socialite girls like you from disgrace.’ I was so angry. I said: ‘This ring on my finger is real! I’m doing this to put a young man through medicine. And I’ll kill him if he turns out to be like you!’ ”

The following night her husband took her to the cinema, where she had a massive haemorrhage. Later, at the Royal Women’s Hospital, staff assumed she was miscarrying naturally, although one said: “You did something to bring this on, didn’t you?” “I denied it, of course,” Margaret says.

She was taken to a ward of sleeping women where a nurse sat her over a kidney dish and hissed: “Now shut up!” Says Margaret: “The pain was so bad I just wanted to scream. I remember passing this little grey foetus and a whole lot of other things.

“All that doctor had done was broken the membrane to trigger a miscarriage. If only he had told me what to expect! But (abortionists) knew that everybody would shut up, that no one would say a word. At least he used sterile instruments.

“I was lucky that my husband was a medical student and could find real doctors. There were poor girls (wanting abortions) who would go out and stand on street corners and be picked up by a man and taken somewhere. They wouldn’t have told a single soul where they were going, and if they disappeared, they just went on the missing list. Some who died were put two to a box and taken to Springvale cemetery, or their bodies were dumped at sea.”

Margaret passionately supports the decriminalisation of abortion. “Women are entitled to do it without it being a crime, without having to be ashamed, and without their health having to suffer. Anyone who makes that decision has powerful reasons for it.”
She says adoption is not for everyone. “I knew that I would never have been able to give a baby away. A couple of my friends were forced by their parents into adopting out their babies, and they still look at every face in the crowd.”


DR Eloise Gawler has already named the child she has been carrying for 23 weeks: Elizabeth. She did it to help her bond early with a baby whom she might not have for very long. Elizabeth has a hole in the heart and an oesophageal blockage. Her chest is too small, parts of her brain and spine are missing and so is most of her lower jaw. The diagnosis is Edwards’ syndrome which means that Elizabeth may also be blind and deaf.

Most children with this syndrome are lucky to live more than a few months. Eloise, 26, is determined to give Elizabeth, her first baby, as much time as possible. She did not even consider abortion, a procedure she has opposed ever since she first heard of it when she was 10. “I was so shocked, even though it was explained to me in a gentle way,” she says. “My instant thought was: ‘I can’t believe mummies kill their babies’.”

She sympathises with women who have conceived in extreme circumstances, such as incest or rape. But, even then, she believes that “the child should not be punished. The unborn is as human and as much of a person as anyone walking around on the street, and because of that I think it’s wrong to abort a baby, disabled or not, wanted or not”.

Eloise believes that many women develop depression and relationship problems after abortion: “I think that deep down a woman does know that what she was carrying in her womb was a baby.” She knows that the course she has chosen will bring distress, too, but believes that it will be different because it will not be tainted with self-reproach.
She has enormous family support. Her husband Mathew, also a doctor, shares her views. Many friends and relatives have already sent her cards or phoned to offer help.

Asked about her religious beliefs, her first response is, “I’m not a Catholic.” (She grew up Baptist and now worships with the Assembly of God, and has been informally associated with Right to Life.) “I think people feel that anyone who has a pro-life view is Catholic. But I do believe that human life is special because God created us as somehow different from the animals, and that there’s a worth to human life that’s beyond flesh and blood.”

To the outsider, her quietly spoken resolve seems unshakeable. Sometimes her voice trembles when she talks about her baby’s problems, and some questions momentarily give her pause. She believes, for example, that things will be extremely difficult for a while after the baby’s birth, but that she will adjust. In fact, literature on parenting disabled children talks about chronic grief, with parents experiencing a renewed sense of loss every time the child’s peers reach a milestone – walking, talking, entering uni, getting married – that the disabled child
will never make.

But Eloise has spoken to parents who believe that their disabled child has brought something special to their family, and she believes that suffering can have value. “Painful things happen in everyone’s life, and it’s our responsibility to face them in the right way.”


SARAH Lantz was 17 and a Catholic schoolgirl in Sydney when she discovered she was pregnant to her first boyfriend. “I was in my school uniform at the time and I remember the doctor saying: ‘You’re pregnant. Congratulations!’ I just burst into tears.”

She felt she could tell no one. Her teachers had taught her that sex before marriage was a terrible sin and offered information only on its mechanics and the list of acts that were forbidden to her. Given that Catholic girls are not expected to defy the church’s teaching, they had told Sarah nothing about contraception.

“I had no idea,” she says now, aged 23. “I had no concept that I could get pregnant. I had this naive idea that it was not going to happen to me. I denied I was pregnant for two whole months. I kept thinking: ‘I’m just a bit late . . .”‘

She says the isolation was extremely painful; that is why she is now a student rights activist on a Melbourne campus, working to ensure that other young women don’t suffer on their own: “It really politicised me.” But the most traumatic part of the experience, she says, was driving to the clinic for a termination and finding it surrounded by Right to Life protesters.

“I was so freaked out I didn’t get it done. I was really scared. There were about 30 people out the front with crucifixes and religious slogans like, ‘Abortion is the ultimate child abuse’. It symbolised the church, the congregation, the school – everything I had been socialised to believe in was confronting me. Then I had to go back home and deal with what had happened on my own, with no one I could tell about it.”

But the experience did not shake her resolve. “When you want an abortion, you want an abortion, and you will do anything to get it,” she says. “I probably would have done something myself if I’d had to.” She made a second appointment and this time found no cordon of protesters barring her way.

She is still angry; at the church, the school, the inadequate services that left her waiting weeks for her termination and the way she had to scrounge from friends to pay for it. But, although she cried many tears, she says she has no regrets.

“It felt so right to have a termination,” she says. “For years and years I thought I was going to get punished by God, but it was one of the best decisions I ever made. Obviously something inside me was saying: ‘This is what I really want.’ It has stayed the right decision, in terms of who I am now.

“Back then I didn’t know who I was, or where I wanted to be. That situation would have dictated the whole of the rest of my life. We all think we are adults at that age, but we’re not. I was just a child myself.”

She feels that the refusal of the adults around her to teach her about her sexuality was immoral. “No one taught me about my body and how to be in charge of it. That was taken away from me, shrouded in secrecy. The teachers had an understanding but didn’t tell the students. I think all those secrets that they kept from people f—-d over lots of lives.”

Like Margaret, she passionately believes that women must be able to control their fertility. “No one wants to grow up and have an abortion. Women don’t choose to find themselves in these circumstances.”

Back at school after her abortion, she confronted pious girls wearing pro-life badges of tiny foetal feet with, “What about if you can’t afford to have a child? What if you can’t look after it? Have you thought about all the situations women find themselves in?”

She is still angered by images of schoolgirls praying at anti-abortion rallies: “They’re indoctrinated at school.”

But she says she is just saddened by adult women who want to impose their anti-abortion views on all women. She believes that women are autonomous beings who must be free to decide their own fate. “I think women are brought up to ensure that everyone else is fine in our lives, except ourselves. (The anti-abortion view) is based on the tradition that women must not be allowed to be their own person, must be the mother or the wife, defined in relationship to others and to men.”

* “Margaret” is an assumed name.

First published in The Age.