By Sarah Gormley
ADELAIDE — South Australian Justice Derek Bollen's suggestion to a jury that a husband is entitled to use "rougher than usual handling" to force himself on his wife continues to generate public debate.
But much of the discussion has focused primarily on the individual judge and has not sufficiently highlighted the greater problem of accountability within the legal system.
Supreme Court judges are appointed by the government, and can be sacked only through a joint parliamentary sitting. Constitutionally, the judiciary has complete independence, meaning that judges are accountable only to their own consciences and the law. The lack of an immediate comment by Chief Justice Len King concerning the case demonstrates the inability of the system to respond to public outrage.
Justice Bollen's remarks are indicative of the general lack of knowledge and understanding concerning domestic violence. A recent national survey by the Australian Institute of Criminology suggested that 13% of women had been sexually assaulted by their partner.
The National Strategy on Violence Against Women report, released in October, called for violence against women to be recognised as "essentially about power and control". It stated that "there are no excuses for violent attacks on women and nothing can justify such violence".
The strategy saw the role of the law as making a clear statement to society about "what is socially acceptable, and what will be condemned and punished".
The report stated, "The responses of the criminal justice system are still often influenced by women's generally lower status and by pervasive attitudes about their perceived place in relation to men". Bollen's comments illustrate this point. Government policy and recommendations such as this can be of benefit only if they are implemented and widely recognised. This is clearly not happening.
The prejudiced attitudes intrinsic in the legal system are evident in cases involving other oppressed groups. Last year in Adelaide, two men were acquitted of bashing a gay man on the grounds that the attack was in self-defence. The Lesbian and Gay Community Action Committee demonstrated against the court
decision, calling, among other things, for a review of the jury selection process.
Commenting on the Bollen case, Victorian Democrat Senator Sid Spindler said it was evident from this and other incidents that at least some of the legal profession are out of touch with community standards.
These cases highlight major problems within the judicial system. Yet while the mainstream media focus has allowed us to hear of the circumstances surrounding the cases, they continue to portray outdated sexual stereotypes that promote such reactionary attitudes.
Melanie Sjoberg, Democratic Socialist candidate for the SA seat of Hindmarsh, told Green Left Weekly, "The judge's remarks reflect a view that condones the oppression and domination of women; a view that in the past may have been considered acceptable. But herein lies one of the problems: judges, usually old, white and male, are appointed for life and reflect views that are often 50 years out of date.
"Judges must be democratically accountable to the community. That means being elected — and not for life. But also the whole legal system — this narrow, inaccessible closed shop — needs busting wide open to make it truly representative and affordable; only then might we get some justice."