Michael Bradley

I published lawyer and writer Michael Bradley’s first book, Coniston, in late 2019 at UWAP. As an adult Michael realised his education in Australian history had skipped over a great deal of crucial detail, including massacres of Aboriginal people in the twentieth century. Michael writes for a number of publications, including Crikey, on a range of social and political matters of note to all of us as well as running Marque Lawyers (with their slogan Law, done differently) . In recent months he has maintained an intense pace as a dogged commentator on women in the justice system regarding the topics of rape and sexual assault, and the agency women carry into their lives in the twenty-first century. This is an article by Michael contrasting the experiences of young women in Australia under the law in 1922 and 2013. Copyright remains with the author.

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The Modern Girl by Michael Bradley

2013, Sydney: Saxon and Brittany had pre-loaded.  Down from the Central Coast for a first-time adventure into pre-lockout laws Kings Cross, they were late getting to Saxon’s sister’s flat in Lane Cove, but the night was plenty young.  A bottle of bourbon was ceremoniously mixed in with Coke, and the two girls headed for the Cross and their first destination: McDonalds.  In half an hour under the passive gaze of the CCTV, they drank most of their plastic-coated mix, lubricated and emboldened enough then to hit the clubs and get more alcohol in proper paid-for glasses.

1922, rural WA: Molly and Sybil never touched a drop.  It was the Perry Bros Circus that attracted them, just arrived in Bunbury, a touch of glamour in the small town five hours by train from Perth.  After the show, Sybil introduced Molly to Mr Perry, and one of the young circus workers, Joe McAuliffe.  Molly was a little taken by Joe, quite the gentlemen she thought.  The two couples went for a stroll around the town, before returning to the Rose Hotel where Molly was staying and had recently started working as a waitress.  Molly and Joe sat on a box in the backyard, spending a playful hour before she had to go inside.

Saxon and Brittany had finally ventured from McDonalds after 11pm, and the next four hours or so were spent bouncing between the World Bar and the Soho Club, refuelled by vodka mixers.  Around 3am, they were back at home base Maccas, contemplating their next move.  Saxon was, as she recalled, ‘pretty out of it’.  It was 3.55am when they made for what would be their last stop: one more go at the Soho.  Security waved them through.

It took a minute or two in the club for Saxon to be hooked by Luke Lazarus, who told her he was a part-owner of the place.  Another five minutes, after some pretty intense hooking-up in the DJ booth, for Luke to lead her down the back stairs and out into the laneway behind the club.  Ten minutes later, she was stumbling up Darlinghurst Road, distraught, and certain that she had just been anally raped.

For Molly, things moved more slowly.  On the box in the hotel yard, there was some canoodling.  She admitted to biting him a few times, in play, and he said he kissed her in return.  She may have placed her hand on his leg.  That was the most of it, but they agreed to meet again the next afternoon.

That day was sunny and hot.  Molly and Sybil walked along the beach with Joe and Mr Perry for a while, then it was just Molly and Joe.  It was getting late; Molly told Joe she had to be back by 5.  He asked her to sit down for ten minutes, up in the sand hills.  Molly agreed.  The beach was busy, but up there they were alone.  There, Molly said, Joe put his hand over her mouth and raped her on the sand.

Molly was 22; Saxon, 18.  Their first experience of penetrative sex would make them, and their alleged rapists, famous. 

Joe was charged with rape, Luke with the crime of sexual intercourse without consent and with knowledge of that absence of consent.  Or, like we used to say, rape.  Each was convicted by a jury.  Each verdict was overturned on appeal.  Each man, in the end, walked free.

The judges of appeal in Joe’s case were scandalised.  As was reported in the Truth newspaper,

Mr Parker [the Crown prosecutor] said that the girl was known to be of good character.  She was an innocent girl.

Mr Justice Draper: And would you suggest that a girl of good character would sit in the dark and permit those acts of familiarity from a strange man?

Mr Justice Burnside: A girl who will sit in the dark and kiss and bite a man one hour after she has met him; if that is the way of a virgin, then I am inclined to agree with Shakespeare when he says “You had better away with virginity.”

Mr Parker (persistently): As a fact she was a virgin.

The Chief Justice: That is one of the most extraordinary features of the case I think.

Mr Parker pressed gamely on.

Mr Parker: Well, I suggest that she was foolish and innocent.  Perhaps foolishly innocent.

Mr Justice Burnside: If a foolish and innocent girl bites and kisses a strange man in the back yard of a public house, what do our wicked girls do?  I should truly like to know.

Although Mr Parker continued to point out that there was no evidence that Molly had consented to the act, and ample evidence that she had struggled, resisted and made immediate complaint after the alleged rape (including the scratches and bruises the examining doctor found all over her), he was hard up against it.

Mr Justice Draper: Do you suggest Mr Parker that the consent should be put in evidence as a document in writing? – Oh no.

Do you mean to say that she did not intend things to go further than ordinary familiarity?

Mr Parker: I admit she was looking for trouble.

Mr Justice Burnside: She was looking for more than trouble.  She was looking for something besides trouble.  I should have told the jury that it is useless to rely on the statement of a woman saying “I never consented.”  I should have said to her, “Yes, if you had never been found out there would never have been anything heard about it.”

Mr Justice Burnside, extraordinarily, presided over Joe’s retrial as well.  His instructions to the second jury were of particular clarity:

It was suggested that [Molly’s] behaviour in the hotel yard, and at the beach was that of innocence.  Maybe it was, but if that was innocence, then good-bye to the guilty.  If that was innocence the word had changed its meaning. 

The second jury shortly agreed.  The licentious age of the flappers may have been breaking across the Western world, but 1922 Bunbury wasn’t exactly Berlin.  Mr Justice Burnside, at any rate, had very clear views about contemporary morality and the appropriate social behaviour of unattached young women.  In his mind, the die had been cast the day before the deed, when Molly and Sybil took the two young men to their hotel – ‘The girl and her friend did not retire to their bedrooms, where, his Honour thought, most sensible girls would retire at that hour of the night.’

In 2017, Luke was facing his second trial for the alleged rape of Saxon, from behind while she was on her hands and knees in the filthy gravel of a dark Kings Cross lane, out of sight of the CCTV cameras which had captured most of the rest of her movements that night.  His retrial had come about because the first trial judge, the appeal court said, had misdirected the jury on the critical question of whether Luke knew that Saxon had not given him her consent.  That they had had anal sex, and that she had not consented to it, were established facts.  But the law said that, if he honestly believed she had consented, then it still had to be proved beyond reasonable doubt that he had no reasonable basis for the belief.

The second trial was by judge alone, it having been decided that the publicity from the first trial and appeal would make it too hard now to find an unbiased jury.  Saxon, understandably, elected not to be cross-examined again, leaving the judge to work out the truth mostly from the transcripts of the first trial and the wealth of street and club security camera footage which the modern age provides.

Luke, the judge decided, was not guilty.  It turned on what he believed and whether it was reasonable that he did so.  The judge believed that, ‘in her own mind’, Saxon had not consented to sex that night.  But her actions told Luke something else entirely, and his belief that she was up for it was enough.

Saxon’s actions, the judge concluded, were what Luke had testified they were.  His recollection was clear: Saxon had been willing, unresistant.  She had never said ‘no’ or ‘stop’; she had not tried to move away, but had got down on the ground, arched her back and pushed back against Luke as he tried to penetrate her, just as he asked her to do.  Saxon’s own testimony, of her confusion, her drunken state, her freeze response when Luke’s tone turned from sweet to demanding, the judge found less than convincing.

More than this, there was contextual evidence of contemporary morality which impressed the judge as entirely relevant.  A young woman the same age as Luke was called as a character witness, and told the judge of her own intimate relationship with him a year before the alleged rape.  Having placed herself in circumstances where sex was a certainty, she had changed her mind, and Luke had immediately backed off.  Giving ‘all the appearances of being a good young woman who was apparently a student and led a life fairly typical of young people her age’, she had some education to give the judge about the current sexual mores of her generation:

‘I know for me, I’ve had anal sex with guys knowing them just that night, and there was consent.  So whether or not, if there was consent there, then I have no problem with it.’

The judge’s interpretation of this was curious: ‘I accept that by that she meant whether the accused believed there was consent.’  Curious because it wasn’t what she said.

This young woman’s evidence would play large in the judge’s mind, as strong evidence of the unlikelihood that Luke would force sex on anyone without their consent.  But also to demolish a key argument of the Crown: that the physical circumstances of the sex which Luke and Saxon had, excluded any possibility that he could have reasonably believed he had her consent.  The judge explained it in these terms:

I do not accept that to be the case and particularly so when looking at the event together with the evidence of the young people who gave character evidence and especially the young woman to whose evidence I have just recently referred.  Their evidence allowed some insight into the contemporary morality of that group of young people.

Luke’s ordeal wasn’t quite over with this acquittal, though, as the Crown lodged an appeal and won.  The second trial judge had got the law wrong too, and her verdict was unsafe.  But then it was over after all, the appeal court deciding that to put Luke through a third trial would be too cruel.

Joe and Luke were free men, acquitted, exonerated.  Joe had done five months in prison, Luke ten, before the system let them go.  Question marks would always remain, that’s what happens, fair or not.  Not guilty is not innocent.  But of convictions, none remains.

Molly’s conviction stands.  So too, Saxon’s.  Each had offended contemporary morality, and was by the law tried for it.

Molly had described ‘the happening’, as the newspapers delicately put it, twice in exhaustive detail.  How Joe had come at her on the sand, how she had pushed his hands away and told him to stop his nonsense.  How he came again, tore her clothes, told her ‘if she did not give in he would use force.’  She screamed and fought.  He put his hand over her mouth.  She said ‘he hurt her twice.’

Joe barely demurred.  ‘After you commenced did she call out? —Yes, just after I commenced.  Why did you go on? —I couldn’t stop then.  You lost control of yourself? —Yes.  Then she commenced struggling? —There was some struggling then.’

No question then – Joe had taken Molly’s virginity without her consent.  For Mr Justice Burnside, though, that was not the full picture.

Accused took off the girl’s watch, pendant, and hat.  He said “You know what I have come up here for.”

What would they [the jury] expect an innocent girl to do in the circumstances?  They would have expected an innocent girl to have jumped up and to have fled to the beach.

The girl was familiar with a man whom she had met only an hour before.  You may call it by what name you like: it appears to me to be improper conduct to act familiarly with a man you have known only an hour.  It may be that it is modern conduct: if so, it is deplorable.

Molly’s crime was against decency, and she had paid a high price; exacted, as it ‘happened’, by Joe.

Saxon’s consent was never really in issue; but, in terms of modern conduct, what is consent anymore?  In the lane, she and Luke had gotten into it pretty hard, kissing and rubbing up against each other.  After a few minutes of this, though, Saxon said she wanted to go back inside, to her friend.  Luke said no, she won’t miss you.  Stay here with me.  Saxon said no, I really need to go.

As Saxon turned to go, Luke reached under her skirt and pulled her stockings down a bit.  She pulled them back up.  Then he said ‘Put your fucking hands on the wall.’  His tone, he said, was conversational.  Saxon described it as frustrated and impatient.  She complied: ‘I was just scared, I guess, I didn’t know what to do so I just did what he said.’

The rest of what was said was disputed, except that, as Luke tried to penetrate her, this exchange took place:

Fuck you’re tight.

What do you expect, I’m a fuckin’ virgin.

At the first trial, Saxon was taken back to the lane:

Q. He tried to enter your vagina and then he entered your anus?

A. That’s correct.

Q. And as he was entering your anus you pushed back towards him?

A. I don’t recall.

Q. But you may have?

A. I may have.

Saxon was adamant that she had told Luke to ‘stop’.  This was a critical point for the defence, as Saxon’s statement which she gave to the police the day after the alleged rape was read back to her in court:

Q. You say here “I think at one point I told him to stop”?

A. That’s correct.

Q. Well, you weren’t certain were you?

A. I was, yes.

Q. Well, you don’t say “I told him to stop”, do you?

A. That’s correct.

Q. You say “I think at one point I told him to stop”?

A. That’s correct.

Q. They’re very different meanings in English, those phrases, aren’t they?

A. I suppose so, yes.

Small details can make all the difference.  The judge at the second trial found it extremely unlikely that Saxon had proclaimed her virginity in response to the penetration of her anus.  In the judge’s view, it just didn’t make sense in that circumstance that a girl ‘would comment that she was a virgin, if in fact she were a virgin, namely that she had never had penile vaginal sexual intercourse.’

The judge also didn’t accept that Saxon had at any time said ‘stop’.  This was partly because of what the judge thought was her unreliability as to how the intercourse had physically happened, but partly also due to Luke’s good character.  And partly ‘based on the application of common sense.’  How common sense suggested the unlikelihood that Saxon had said ‘stop’, the judge didn’t say.

Deeper and deeper into the infinite complexities of human behaviour Molly and Saxon were dragged, as each stage of their story played out.  And so that story became less and less about what Joe and Luke had done; and more and more about what Molly and Saxon had not.

Molly had not gone indoors on that first evening; instead, she had stayed out in the hotel yard, mucking around immorally with a man she had just met.  The next day, she had not stayed on the beach where she could be seen.  When Joe’s intentions had become clear, she had not stood up and run.  After that, it was too late, her screams and struggles too weak to save her.  Modern girl she might be, thinking she could control her situation.  She was wrong; and to blame.

Saxon was a modern girl too, or so at least the judge assumed.  She had had 10 standard drinks, the judge found; but that had not made her so drunk that she was not in control of her choices.  She was 18, inexperienced and at the Cross for the first time; but not so innocent, the judge thought, that she didn’t know what might be coming when Luke led her out of the club’s back door.  Contemporary morality, the judge concluded, had placed Saxon at the mercy not of Luke, who was found to have committed no crime, but of a sexualised culture which encourages young men to assume that young women are up for a lot more today than ever before.

Molly’s crime was that she was a bit ahead of her time.  Saxon’s was that she was lagging a little behind.  Each of them, society adjudged, should have known better; because then they could have saved themselves from the impulses of young men.

Lost in the sand and the gravel were the innocence, dignity and dreams of Molly and Saxon.  Lost in the cold traces of the criminal legal process was the bare truth of what they had endured.  Ninety five years separated their trials.  Nothing separates their pain.