Clementine Ford exposes an example of the patriarchy in action:

The trial of [Luke] Lazarus goes to the heart of rape culture in Australia.

Ford provides background:

One of the functions of rape culture is that it works especially hard to provide excuses for the rich young white men whose careers and futures are treated with more respect than the bodies of the women they assault.

I thought of  this again this week when I read Richard Ackland’s (excellent) analysis of [judge Robyn Tupman’s] judgement from the trial against Luke Lazarus. Lazarus, the son of a wealthy Sydney businessman, was initially convicted of anally raping an 18-year-old woman outside one of his father’s nightclubs in 2013. He served 11 months of a three-year sentence before being acquitted on appeal.

In relying on lawyer Ackland’s not-so-excellent analysis in the Guardian, Ford, wittingly or not, transposes a critical error:

As Ackland reported, Judge Robyn Tupman’s reasons for acquitting Lazarus on appeal were that she concluded Lazarus believed the complainant was “consenting to penile anal intercourse” even though she accepted the complainant did not believe she was.

But Judge Tupman also characterised the complainant’s state as being “not particularly intoxicated” despite having had more standard drinks than Lazarus, who was described as “moderately drunk … perhaps moreso than that”.

Ackland’s quote in context – note that Ford can’t even copy and paste properly, “perhaps more than that” becoming “perhaps moreso than that” – follows:

Lazarus introduced himself at the Soho bar, where he soon made known that he had a special status in the place. Up to then, he’d had about nine drinks and the judge found that he was “moderately drunk … perhaps more than that”.

Rather than accurately quote judge Tupman in full, Ackland doctors her quote to misstate the time frame. Here’s Tupman in full:

[Lazarus] was however, I accept, at least moderately drunk when he arrived and perhaps more than that. He had however begun to sober up by 4am but was still affected by alcohol to an extent.

Lazarus arrived at the Soho bar around 12:30 AM but did not encounter the complainant until she arrived at the bar at 3:55 AM. The evidence indicates Lazarus stopped consuming alcohol around 2:00 AM, judge Tupman finding that neither he nor the complainant was “substantially” intoxicated at the time of the alleged 4:00 AM rape.

Ford uses Ackland’s mischaracterisation to cast Tupman as a rape culture facilitator:

Taken at face value, one could conclude that a lot more leeway was given in this scenario to Lazarus. Alcohol is not treated as a likely factor in the victim’s ability to more forcefully oppose Lazarus’ advances, but Lazarus’ intoxication was considered a factor in his issuing of them.

This is a messy and dangerous distinction to make, and it poses a great deal of risk for future sexual assault trials. How does one prove consent, particularly when the actions of the (mostly female) survivors seem to be viewed through a stricter lens of intent, while men are so frequently given the benefit of the doubt?

Judge Tupman is an unlikely patriarchist, however:

Robyn Tupman has been a Judge of the District Court for 19 years and was a solicitor and barrister in private practice from 1978. She currently presides over criminal trials in Sydney and occasionally in regional NSW. She was recently honoured as a life member of the Women Lawyers’ Association of NSW and supports and assists the Women Barristers Forum, especially with their mentoring programmes for new women barristers and has spoken at their functions in relation to issues of gender equality in the legal profession. She is now the most senior woman Judge in the District Court.
In practice, she had recognised expertise in children’s law and sexual assault cases and was involved introducing special procedures for sexual assault cases in the District Court. She is the current President of the Australian Association of Women Judges and plays an active role in the International Association, which promotes women’s judicial leadership worldwide and advocates for gender equity and training programmes in its member jurisdictions, especially involving issues of domestic violence and human trafficking.

Had Ford conducted even perfunctory research she’d know that the complainant entered the nightclub at approximately 3:55 AM, encountered Lazarus for the first time and within five minutes was passionately kissing him, quickly consenting to go somewhere “more private”, sex occurring within 10 minutes of their first meeting.

Further, Tupman notes the complainants own testimony:

The complainant in her evidence, when asked whether the accused may have tried to penetrate her vagina initially said that she did not recall this but in cross-examination allowed for the possibility that this might have occurred. Equally and quite importantly in this trial, she said that it was possible, and therefore allowing for the possibility, that she may have pushed back towards the accused when he put his penis into her anus and continued to push back and forwards during the act of anal intercourse.

The evidence further undermines Ford, who asserts:

Anal sex is pleasurable for many women, but it is not pleasurable as a rule when done without due care. The woman targeted by Lazarus was a virgin, and the world’s average 18-year-old virgin is not likely to choose to have her first penetrative sexual experience be in a dirty alleyway with a stranger who forces her onto the ground before forcing his unlubricated penis into her unprepared anus.

It seems likely that if Lazarus considered the issue of consent and desire at all, it was only in terms of what he was consenting to and desirous of.

Ford has either not read Tupman’s 74 page judgement, or chooses to ignore its description of events:

No doubt, [the complainant] was by then, starting to feel that she was in a difficult situation but I accept the evidence of the accused, that when he asked the complainant to turn and face the fence, she did so and she pointed her bottom towards him after he pulled down her undies and she did not try to pull them up again, nor did she try to stand away from the fence or take any other physical action. Of course, as I have already said, in considering whether or not the Crown has proved lack of consent, the law provides it is not necessary for a complainant in such a case to offer resistance or take any physical action. It is a matter, however, that I do take into account. That, of course, is an assessment of the situation from a consideration of the complainant’s state of mind.

From the point of view of assessing the accused’s state of mind, his evidence was that he took these actions on the complainant’s part, as an indication that she was consenting to continuing the sexual interaction with him to the point of sexual intercourse.

The complainant’s evidence, some of which I have already recited, was that she said she needed to go back to her friend. She turned to do that, the accused pulled down her undies and she pulled them up again. At about that time he said “no, stay with me, your friend won’t miss you” and that she turned back to him.

As I have said, her evidence was that he then told her to put her hands on the fence, which she did. Her evidence continued that immediately after that, apparently without more, he told her to get down on the ground on all fours and arch her back, which she did, and that was after pulling her undies down as I have already outlined.

Again she did not say that he used any physical aggression or force against her to do that, nor that his tone of voice was particularly forceful or aggressive, and as I have said, to the extent that that might appear in other evidence and in particular the history given to the doctor later that day, the complainant’s evidence is not that he used any force on her and that she got down onto the ground on all fours and arched her back of her own accord.

Ford’s mischaracterisation of the evidence is especially ironic considering her earlier insistence on factuality:

I have amassed hundreds of thousands of words of writing on the topic of gender inequality. I have worked with health experts and survivors and persisted through the sludge of the online space to try to conduct a conversation based on facts, research and cold, hard data.

Fanatical feminist Ford doesn’t ever cite facts, she relies on theorising, fabrications and exaggerations in attempting to make otherwise untenable points. Rape culture, patriarchal oppression and systemic misogyny are theoretical constructs, not facts, and are unsupported by “cold, hard data.”

Ford’s and Ackland’s articles are factually incorrect and should be retracted.

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