Legislative Council, Wednesday 22 June 2022

Ms FORREST (Murchison) - Mr President, I rise on adjournment to reference an article that was in the Mercury today. I read from this article and express my complaint and my request to Government. It was told a seriousness of rape case focus of court [TBC]. It states:

A Supreme Court judge says a man's rape of a former partner might be generally regarded as less serious than a violent attack on a stranger at a park.

The comments were made on Tuesday by Acting Justice David Porter during sentencing submissions for a man who cannot be named for legal reasons.

'A violent attack at a park on a stranger who leaps out from behind a bush or a nightclub drug rape, they might be generally regarded as more serious, Justice Porter said.

His remarks were directed to prosecutor Jack Shapiro who had taken issue with the defence's argument that the man's offence was less aggravated because of their then-relationship. Mr Shapiro said rapes against partners were not necessarily any less serious, since it involved a breach of trust.

'With respect, it's not very helpful to compare it to cases which are not similar', he said, in submissions to Justice Porter.

'I don't accept the premise that a rape in a park with people who didn't know each other is bound to be more aggravating or serious than this type of crime'.

Mr Shapiro argued that this was a 'violent' rape, where a man forcibly held his former partner down and had sex with her.

A snippet of the victim impact statement was read out in court, in which the woman alleges that she repeatedly asked him to stop. 'He got on top of me and forced himself on me. While that was happening, I said get off me, get off me', the statement read.

Mr Shapiro said the forceful nature of the crime should be taken into consideration. 'Often rape is described as a violent crime but this case involves a case of actual violence', he said.

Defence lawyer, Greg Richardson, said the woman told a nurse she had consensual sex with a man three days before the alleged rape in Brighton. He said it was an 'unpopular' opinion, but argued that rape between partners was less serious than between strangers. 'There is significant distinction between rape between people who know each other and two people in a relationship'. 'It's rape, the jury have said that, but this is a different kind of rape than the serious kinds of rape that happen'.

Justice Porter noted that 'there is still the right to say no'.

The man faces charges of rape and common assault. This case was adjourned for 6 July for sentencing.

Mr President, in Tasmania we have very good and nation-leading and very clear consent laws. Consent needs to be informed. It needs to be ongoing. The fact that she might have had a sexual experience with this person three days before does not indicate consent on that day. It never has; it never will.

It must be voluntary. This woman clearly said - get off me, stop, get off. What else can that mean? And our law requires a positive 'yes' to any sexual activity.

Rape is rape is rape; it is performed by rapists, not by any other mechanism. My complaint is that we still have justices in our court who do not get it. When are our justices in our courts going to understand what rape is and what consent is? Our Tasmanian law is very clear: if our justices do not understand it is time they were informed of our own laws. I ask the Leader to ask the Attorney-General to talk to Acting Justice Porter and update him on our current consent laws. Comments like this do so much harm for so many women who are raped by their partners, and their husbands

It almost happens every day and we disempower every woman who might want to speak up because she has been raped in a marriage because of attitudes like this at our highest level. It is a disgrace.