Night Games Read online

  According to this law, a person who acts with a clear conscience is not culpable. But is this true – that to be guilty, you need to have an idea of doing something wrong? This was what a jury would have to decide about Justin. The prosecution claimed Sarah did not consent to having sex with Justin in the alley – but was he aware of this? Did he consider the possibility of her not consenting?

  Justin told me that in the six weeks before he was charged, the police had secretly bugged his phone and accessed his text messages. The evidence they gathered, he believed, should have helped his case. He had made comments while unaware of being recorded that indicated a belief that his and Sarah’s encounter had been consensual. ‘But,’ he said warily, ‘there was a sting attached.’ It was also revealed that he and his football mates had a ‘rooting competition’ going on.

  I shrugged when Justin told me this, thinking of a piece of paper I’d kept when I was a teenager listing all the people I’d kissed, a question mark standing in for the names of those I had been too drunk to remember. It wasn’t a rooting competition, but it was definitely a tally of sorts. Later, when I came across the so-called Spur Posse in America, a group of Californian high school boys who were investigated by police and had used a point system to compete sexually with one another – one point for penetration and only one point allowed for each girl – I realised the possible implications of the rooting competition. With such an explicit intention to get laid, how can such a competition not go too far? How much premeditation to get laid was too much?

  When I was thirteen, a boy a couple of years older than me plied me with tequila, which I happily consumed. I later learned it was his plan – a plan others at the party were well aware of – to get me drunk so he could fuck me. Unfortunately for him, I passed out while it was still daylight and was carried home by a chorus of friends. But had he succeeded, would the fifteen-year-old have been a rapist? If I were incapable of consenting, yes, that would fulfil the performative element of rape, but what about his state of mind? The premise of the 2007 teen flick Superbad has the main character trying to organise a loot of alcohol to impress a girl and get her drunk so he can have sex with her. Of course, it all works out in the end: it turns out the girl doesn’t drink (what a good girl, and a handy plot-swerve around the messy idea of consent) and the two get to know each other in a decent way, but was there any mention of the main character – a nice gentle boy – being a rapist in the making? Of course not.

  Can there be such a thing as an ignorant rapist, a thoughtless rapist, an opportunistic rapist or even a rapist by mistake? And does a jury’s failure to convict such a man, as Glenn Davies believed, show a lack of sophistication and understanding about rape? Or is there a deep sense of unease among the public about labelling certain young men rapists? Put him in a basket, sure, but not in the same one as the hiding-in-the-bushes predator, the drink-spiker or the husband who treats his wife as his property and assaults her as he wishes.

  *

  As I turned to face the doors in the elevator, a woman in spectacles and a dress quickly put her hand in between them and held them open. She shepherded a group into the lift. Ten to fifteen people bustled inside with me. The woman stood at the door with more people waiting behind her. ‘Level 7,’ she said to the people in the lift, ‘Level 7.’ And then, as she let the doors close, she said one last time, ‘Level 7.’ As soon as she was gone from view, the people inside the lift laughed. ‘I feel like we’re back at school,’ one said.

  Then as the elevator rose, one joked, ‘I can’t remember, was it Level 4?’

  ‘Nah, Level 5,’ another quipped.

  But then, when the lift opened at Level 6, a couple of them wandered out absentmindedly. Potential jurors.

  It was day three of Justin’s trial and the courtroom was full of ordinary people called in for jury duty. Of the fifty-odd assembled, twelve would be selected. ‘Trial by jury,’ said Judge Taft, ‘is an essential plank of our system of justice.’ He addressed the group, explaining that individuals would be called out randomly and were to make their way to the back of the room. There, they would either get the nod to walk to the front of the room and take a seat in the jury box, or be ‘challenged’ by lawyers for the defence or ‘stood aside’ by the prosecution – in which case they would return to their seats.

  Both defence and prosecution were not required to give any reason for their misgivings and were allowed six challenges each.

  The judge’s associate called out the name and occupation of each panel member. A former WorkSafe employee and a Sri Lankan accountant, both male, made their way unimpeded to the jury box. Then an unemployed female childcare worker was introduced. Pen in hand and without looking up from his folders and files, Malcolm Thomas called out, ‘Challenge.’ The woman stopped, swivelled and returned to her seat. A young female administrative worker was called up. ‘Challenge,’ said Thomas. And so on, until he had used up all his challenges. A young female nurse and a beauty therapist then managed to sneak through, but the final jury was this: ten men, mostly middle-aged, and two women.

  From the moment they took their seats, the jurors had been the centre of attention, the lawyers and judge alert to their needs. But as they filed out at the end of the day and the door was shut behind them, I noticed the charade drop a little. As I watched the barristers and judge return to their legal triangle of barely decipherable, coded language, I realised that the jury members were more like precious children than wise sages. It was as if they would be kept in a large dark room with the occasional torch shedding light on a piece of evidence or a witness, but the rest of the time were to grope their way around or, at precarious times, let themselves be led carefully around great potholes of backstory.

  CHAPTER 8

  ‘Whatever the barrister says is not evidence,’ said Crown prosecutor Ryan in his opening address to the jury, warning them to take what he and defence counsel Thomas said with a degree of wariness. The prosecutor was a somewhat bumbling, ruddy-cheeked, red-haired lawyer with watery eyes and a fondness for homely adages such as ‘What’s good for the goose is good for the gander.’

  Ryan then told the story of three friends – Sarah, Olivia and Tom – and how they began their Saturday night with drinks at their residential college before heading to Eve nightclub in South Melbourne, where Sarah had organised to meet Nate Cooper, a boy she had first met two weeks earlier. Around 4.40 a.m., Sarah and Nate left Eve and headed back to Nate’s house on Dorcas Street. By the time they arrived, Ryan stated ominously, ‘There was a number of men at the house already, including two Collingwood football players.’ While Sarah was there, she was in the bedroom, and was unaware that some people had left and others had arrived, including Justin Dyer.

  Within an hour, said Ryan – skipping over what had happened in the house – Sarah left and became aware of Justin only when she was on the street. He asked her where she was going; she said she was going home. At the entrance to an alley, he said, ‘Come down here with me first,’ and began to kiss her. Startled, she pulled her face away and he put his fingers up her dress, moved her undies aside and ‘digitally penetrated’ her. This was the ‘first count.’

  Sarah pushed him and said, ‘No, stop it, I want to go home,’ and tried to run. Justin stopped her. She tried to get away from him on two or three occasions. He pushed up her skirt, bent her over and penetrated her from behind. During this time, he called her Sarah. ‘She was perplexed,’ Ryan said. ‘She doesn’t remember meeting him.’

  ‘I don’t want to do this,’ she said, to which he replied, ‘Nah, just let it finish.’

  Sarah, after running out of the alley, continued towards Clarendon Street. Justin caught up with her. They had a conversation and even swapped numbers, Sarah agreeing to this because she was scared. They got in a cab and first went to Elwood, where Justin lived. In the cab, Justin kept insisting on making a date to see her the next day; she refused
at first, but finally relented. Then, after the cab stopped outside the block of flats where he lived, dropping him off, the driver took her home.

  Sarah had been trying to get in touch with her friend Tom and finally did so when she was in her room at the college. He went to her room. During this time, Justin called and texted. The first message read, ‘How are you feeling this morning?’ Ryan concluded to the jury that he had done this to keep his control over her.

  Then Ryan switched and retold the story, this time from Justin’s police statement. The accused man told police he was at a function to celebrate the premiership, where he had eight beers and a few shots, and then he went to Eve nightclub, where he consumed around ten drinks. He left Eve at 5 a.m. and went to the house on Dorcas Street, where he said he saw the complainant.

  He spoke with her and offered to go with her to get a cab, took her by the hand, and they kissed on the street. He needed to piss and went up a laneway to do so. Afterwards he called her up to him and they kissed and fondled each other. She gave him head and he asked to have sex.

  Ryan paused now for emphasis. ‘He says, “She pushed her dress up and bent over” and then of her own volition –’ Ryan said the words singly and mockingly – ‘she stopped and went down on him.’

  Then she stood up. ‘I’ve got to go to this party.’

  ‘Can you finish me off?’ Justin said.

  ‘Yes’ – and she went down on him again, then she said, ‘No, I’ve got to go.’

  *

  Can you finish me off?

  When we heard that line, I and the young female ABC journalist sitting beside me flinched.

  During a break, I found her outside the court, watching as the photographers and TV cameramen rallied to get a picture of Justin as he emerged from the building. She pointed him out to her photographer and then stood back. We started chatting and I asked her what she thought about Justin’s account, in particular the Can you finish me off? line.

  ‘Well, you know …’ she said, before trailing off.

  ‘Heard it a million times before?’

  She laughed. ‘Not a million times! But yes, definitely heard that one before.’

  I nodded. ‘Me too.’

  The Crown prosecutor had scoffed at the ridiculousness of Justin’s version of the evening – but it hadn’t sounded that ridiculous at all. In fact, I thought with a shudder, it sounded all too familiar.

  *

  Malcolm Thomas was a straight-talker. Young-looking, with a serious face and prematurely grey hair, perhaps as a result of all that solemnity, he exuded none of the blokey comradely jousting of which David Galbally was fond, the kind of ‘We’re mates, aren’t we?’ performance that makes my skin prickle. As I watched Thomas interact with Judge Taft, a man with a no-nonsense air, I thought that Justin was better off without Galbally. The QC’s obvious ties to the inner world of football might have been disastrous for his case.

  In his opening, Thomas bullet-pointed the evening for the jury. Justin Dyer and Sarah Wesley walked down the stairs together and into the street. Went into the lane and had sex. They left the lane. There was an exchange of phone numbers. Then, observed by witnesses, they got into a taxi together and had a discussion about where they were heading, before deciding to go to Elwood first and making an arrangement to meet up the next day. Justin later sent a text message to follow up.

  ‘What’s in dispute?’ Thomas asked rhetorically. ‘That the sex was consensual,’ he answered. ‘Justin did not believe it was not.’

  It did not take Thomas long to get to the crux of his defence. ‘Is Sarah Wesley a liar?’ he asked the jury. ‘We say she is a liar.’

  Thomas referred to the Crown’s version of events – that Sarah had first become aware of Justin on the street, that he was a stranger – but continued, ‘We have witnesses who saw them in the house and on the street.’

  ‘Were they affectionate, kissing?’ he asked again. ‘Are there witnesses who observed that happening? Yes.’

  ‘Can she not remember, or is it because she is a liar?’

  Thomas went on to examine Justin’s behaviour. His style was clipped, pragmatic and simple – there was no lawyerly jargon or attempts to make a profound impact on the jury. Instead he laid out the ‘facts’ without fanfare, implying that, surely, they spoke for themselves.

  ‘Why has Dyer given a woman he has supposedly raped his phone number, taken her to his home and called her the next day? Because he wants to catch up with her. Consistent with what happens after consensual sex.’

  Thomas continued in this manner, asking and answering rhetorical questions, until he came to what he described as ‘real’ evidence.

  In spite of having more than a few witnesses to corroborate Justin’s side of the story, Thomas emphasised that he wouldn’t be relying on these. Instead he waved a wad of papers in the air. They were, he explained, documents relating to the use of mobile phones throughout the evening.

  ‘Phone records are central to this case,’ he said, and to remind the jury of his central contention that Sarah Wesley was a liar, added, ‘People lie, phone records don’t lie.’

  *

  I felt a flash of anger each time Thomas said ‘liar.’ It rose up in me and I took it out on my notepad, pressing my pencil hard against the paper. Later, when I looked over my notes, I realised just how inarticulate I had been in expressing why this made me angry. Thick and bold scribbling and crosshatching spilled illegibly across the page.

  Was it an old-school feminist bile rising up in me – rage that Thomas was playing the age-old card of the lying female? Women have been cast as deceitful characters since before it was written that Eve ate the apple. The New Zealand criminologist Jan Jordan, in her paper ‘Beyond Belief: Police, Rape and Women’s Credibility,’ referred to a ‘Witchhunters Guidebook’ published in 1484 that describes women as defective from the very start, formed as they were from a bent rib. ‘Imperfect, and inherently deceptive,’ wrote Jordan. ‘These ideas filtered through society, evident in legal, medical and criminological thought.’

  Police investigating rape, Jordan pointed out, were hampered by such perceptions. She quoted Detective Inspector Alan Firth, who wrote in 1975 that ‘Women and children complainants in sexual matters are notorious for embroidery or complete fabrication of complaints.’ Firth continued:

  It should be borne in mind that except in the case of a very young child, the offence of rape is extremely unlikely to have been committed against a woman who does not immediately show signs of extreme violence.

  If a woman walks into a police station and complains of rape with no signs of such violence, she must be closely interrogated. Allow her to make her statement to a Policewoman and then drive a horse and cart through it. It is always advisable if there is any doubt of the truthfulness of her allegations to call her an outright liar.

  That this kind of thinking has been the status quo for centuries (unless of course it was a white woman accusing a black man of rape, and then perceptions were reversed) and only recently addressed is enough to make any accusation that a rape complainant is a ‘liar’ seem a harking back to the bad old days.

  But at the same time, the opposing position also sat uneasily with me. In 2000, the Russian-American journalist and writer Cathy Young wrote in Salon that in the past thirty years:

  rape victims’ advocacy has gone from challenging clearly unjust practices (such as jury instructions that ‘unchaste character’ could be held against the woman’s credibility) to insisting that if a woman feels raped, the man must be guilty. As legal scholar Catharine MacKinnon put it, ‘Feminism is built on believing women’s accounts of sexual use and abuse by men.’

  Particularly in the United States it seems that these two opposing biases are more prominent than ever: the notion that all women always tell the truth when it comes to allegations of ra
pe is increasingly common, despite it being as ridiculous as the notion that women are mostly liars when they say they have been raped.

  Wendy Murphy, a former sex crimes prosecutor and law professor, is a regular US commentator on CNN, Fox News and other channels whenever an issue of sexual assault arises. On one occasion, in response to the suggestion that surely everyone must be presumed innocent before being proven guilty, she said angrily, ‘I’m really tired of people suggesting that you’re somehow un-American if you don’t respect the presumption of innocence, because you know what that sounds like to a victim? Presumption you’re a liar.’

  It’s one or the other, it seems. She’s a liar, or he’s a rapist.

  Gazing at my angry pencil marks, I realised that my frustration had little to do with being made out of a bent rib or otherwise. It was possible that Sarah had lied about aspects of the night’s events. I could even understand the strategy behind Thomas’s method. A jury must be convinced ‘beyond reasonable doubt’ in order to convict, and so all the defence needs to do is introduce an element of doubt about the accusation or the accuser. This tends to result in a situation in which it seems as though the complainant is on trial. If Sarah had misled the police or jury in any way, how could the jury possibly not doubt her entire story?

  But does one lie invalidate an entire experience, and if not, then how many lies does it take to negate an allegation of rape?

  ‘Sometimes a victim will change their story to suit a rape myth and unfortunately there is usually a story to be told, but not the one we’re hearing,’ Dr Angela Williams told me.