FREE AS A BIRD Legal Outcomes and Public Perceptions of Gendered Violence Alleged of National Rugby League Players: Two Case Studies Fran Cole, MPP Submitted in fulfilment of requirements for the degree of Master of Research Macquarie University Law School Macquarie University 30 October 2015 1 Table of Contents Abstract ............................................................................................................................................. 4 Statement of Candidate .......................................................................................................... 5 Acknowledgements..................................................................................................................... 6 Introduction ................................................................................................................................... 8 Chapter 1: Background .......................................................................................................... 15 Chapter 2: Literature Review ............................................................................................ 24 Chapter 3: Method .................................................................................................................... 42 Chapter 4: Doctrinal Legal Research ............................................................................ 56 Chapter 5: Social Science Survey: Public Perceptions ...................................... 71 Chapter 6: Discussion ............................................................................................................ 77 Chapter 7: Conclusion ............................................................................................................ 86 Public Perceptions: Survey Outcomes ...................................................................... 113 Bibliography ............................................................................................................................... 131 2 ‘…Passion is a great distorter of logic, and you need to remind yourself of that in my job. The most frustrating thing is when I see people take sides on an issue because of personal feelings towards those involved rather than because of any objective analysis on the issue - I see that regularly.’ David Gallop, Former National Rugby League Chief Executive Officer, 2007 ‘And as drunk as I was and as tired as I was, and passed out, I was trying to push him off me. But I couldn't, I didn't have the strength to push him off me…Why would you go forward [to the police]? You're about to be ridiculed and your name dragged through the mud and you will be made out to be something that you're not and that you asked for it.’ Charmyn Palavi to reporter Sarah Ferguson, ‘Code of Silence’, Four Corners, ABC, 2009 ‘Unfortunately…it’s a matter of reflexes. The poor bloke may have the best intention, but he can’t be thinking about the Judiciary all the time – and accidents do happen’. Alan Jones, Former Director of Football, South Sydney Rugby League, 1995 3 Abstract Research about gendered violence allegations brought against footballers is limited in Australia and largely focuses on media representations. This research explores whether the legal outcomes of allegations brought against footballers align with public perceptions. A socio-legal case study approach combining doctrinal legal research with a social science survey was used to examine two cases of gendered violence brought against professional footballers in NSW. Over half of survey respondents believe football players are treated differently to other citizens when charged with serious crimes. Yet the legal outcomes in these two cases are largely comparable to other sexual assault and domestic violence case outcomes in the legal system, raising further questions about media representations and public perceptions of footballers – as well as other celebrities – charged with gendered violence, and the effectiveness of the criminal justice system in managing these kinds of allegations more broadly. 4 Statement of Candidate I certify that the worK in this thesis entitled, ‘Free as a Bird: Legal Outcomes and Public Perceptions of Gendered Violence Alleged of National Rugby League Players: Two Case Studies,’ has not previously been submitted for a degree, nor has it been submitted as part of requirements for a degree to any other university or institution other than Macquarie University. I also certify that the thesis is an original piece of research and it has been written by me. Any help and assistance that I have received in my research work and the preparation of the thesis itself have been appropriately acknowledged. I certify that all information sources and literature used are indicated in the thesis. In addition, Macquarie University Ethics Review Committee approved the research presented in this thesis, reference number 5201500365, on 14 July 2015. <Signature> Frances Cole, Student Number 41163125, 30 October 2015 5 Acknowledgements For Len, with love. This work would have been impossible without the tolerance, support and love of the following: Bettrice, Bec, and Andrew, my rocks; Cath and Hazel, my angels; Trish (my other sister) and Glenn; Gwenny, Joe, Alice, Shirley, and Brenda – my cheer squad; Grace, George, Bridget, Hayden, Lucy, Tom and Ben – the lights of my life; Inga Liljestrom, Kathy Rowe, Kylie Bennetts, Rich and Sare Delaney, Amanda Bonney and Mark Macdiarmid, Jane Dillon, Jocelyn Hungerford, and Laura Angus – my dearests; Danielle Moon – Law School research peer and fountain of common sense; Anthony Bartolo, Steven Francis, Jen Albright, Cath Halbert, Deborah Winkler and Lydia Ross – my amazing colleagues and friends; Dr Sharon Jones, Dr Ian-Carr Boyd and Tim Wall – my health care team; Staff at UpBeet, Thunderbirds, Cassiopaea and Zest; and Squid and Wiggy – my ever present furry research companions. I am also incredibly grateful for the academic ministrations and support from the following at Macquarie University: Dr Kate Gleeson, my brilliant and incredibly patient supervisor; Dr Denise Myerson and Dr Brian Opeskin, Law School stars; Catie Croaker, Macquarie University Research Librarian; and Macquarie University Library Distance Education Service and Interlibrary Loans. Sincere thanks also to: Dr Steve McEachern and Adam Zammit (ACSPRI); The transcripts sections, District and Local Courts, Downing Centre; Magistrate Roger Clisdell; Judge Michael Finnane; and Judge Jonathan Williams. 6 Researcher’s Note It is acknowledged by the researcher that both domestic violence and sexual assault are criminal offences also perpetrated against men. However, women are primarily affected by both these crimes: women are the complainants in 85 per cent of incidents of sexual assault reported to police.1 The 2012 ABS Personal Safety Survey reported that 51,800 men experienced intimate partner violence in the previous 12 months, compared to 132,500 women.2 This research has therefore focused on violence of these types perpetrated against women. It should also be noted that the term, ‘victim,’ although widely used in legal discourse to describe a person directly affected by crime, is a controversial term in feminist analyses of sexual assault and domestic violence. Therefore, unless directly quoting a source or a known term (e.g. ‘victim blaming’), the term, ‘complainant,’ is used as an alternative throughout. 1 Australian Bureau of Statistics, Reports of sexual assault increase, most other crimes down (Media Release, 26 June 2014) <http://www.abs.gov.au/ausstats/[email protected]/Lookup/4510.0Media+Release 12013>. 2 Australian Bureau of Statistics, 4906.0 Personal Safety Survey (11 December 2013) <http://www.abs.gov.au/ausstats/[email protected]/mf/4906.0/>. 7 Introduction In July 2015, yet another high profile football scandal unfolded: this time in relation to poor spectator treatment of an Aboriginal Australian Football League (AFL) player during play. While the debate about whether crowd behaviour constitutes racism rages in the media, a sign appears outside a Brisbane café. A photo of the sign rapidly spreads through social media. ‘How about booing the rapey footballers instead?’ it reads3. There is no question gendered violence allegations made of footballers have garnered significant media attention over the past decade. In 2004, allegations of abhorrent sexual assault perpetrated by professional footballers hit the press. That year, the Australian Broadcasting Corporation (ABC) aired a documentary using the Four Corners flagship series called ‘Fair Game’, exploring recent allegations of rape made by young women about separate incidents in regional areas and major cities involving two football codes and three clubs. Reporter Ticky Fullerton spoke of a long history of sexual assault allegations and rumours about footballers, stating that, ‘in the past 20 years not one of the cases of the alleged rape in Australian Football League (AFL) and rugby league has led to successful prosecution’4. Mewett and Toffoletti, writing about the 2004 allegations, reported, ‘women involved in the care of rape victims claim that sexual assaults by sportsmen have occurred historically, but with little media fanfare.’5 The Four Corners story undertook detailed investigation of media reports from late February of the same year - ‘what many see as a pervasively anti- 3 Unknown, Facebook Page: Catherine Deveny (31 July 2015) Facebook <https://www.facebook.com/catherinedeveny/photos/a.378846627295.158 127.168359682295/10153509097672296/>.