Sex With Children ‘A Foolish Lapse’: What’s the Story?

Abstract

1.0 INTRODUCTION David Indermaur has observed that '[w]here the judgments of the court appear to disregard public sensitivities there is good copy for the media.'1 So it was not entirely surprising that Australian newspapers and websites jumped on the story when Victorian County Court Judge Lance Pilgrim imposed a wholly suspended sentence on Diana Nicole Bennett for one count of sexual penetration with a child under the age of 16, describing the offending as a 'foolish lapse'.2 The phrase 'foolish drew particular comment. For example, The Australian headline was 'Judge calls sex offence foolish lapse' and the lead-in sentence to the item read: A 28-year-old woman who was caught having sex with a teenage neighbour has avoided jail after a judge dismissed the drunken episode as a 'foolish lapse'.3 The media coverage thus implied that this was a(nother) case of a judge not taking sex offences seriously and being out of step with community attitudes. On the assumption that the actions of a male offender in the same circumstances would not have been described in the same terms, nor have been 'dismissed' with a wholly suspended sentence, there were calls of 'double standards' and 'gender bias'.4 Judge Pilgrim must have been appalled.5 As we will see, he could not have been surprised. The use of the phrase 'foolish to describe sex with a child does appear, as reporters assume, to trivialise and 'dismiss' the offence. However, Pilgrim J did not coin the phrase: the idea that sexual penetration with a child might be described as a 'foolish was one that he inherited and, moreover, in the circumstances, could not dismiss. Intrigued by the (selective) media reporting, this article traces the evolution and various meanings of 'foolish lapse', both inside and outside the courtroom. I examine the High Court and Victorian Supreme Court comments that appear to have given rise to the notion, and analyse the subsequent County Court decisions in which it has gained force, and notoriety, in recent years. As far as I can ascertain, in legal terms, 'foolish is a peculiarly Victorian invention.6 It is not used in sentencing in other contexts or other jurisdictions, and one hopes that it does not catch on. As discussed in the paper, when reported in the mainstream press the description of sexual penetration of a child as a 'foolish is apt to be popularly misunderstood and to bolster public perceptions that the judiciary is out of touch with community standards. The curious case of 'foolish lapse', and the disjunction between its legal and popular usage, is a cautionary tale about language, meaning and context - and about gender and sex offences. Sentencing of child sex offenders provides the setting for this story but it is not the subject of the tale, and my argument here is not with the sentencing practices or decisions of Victorian judges who have talked of 'foolish lapses'. Rather, the analysis demonstrates that when ordinary language is appropriated for legal purposes, it is bound to suffer a degree of misrecognition on re-entry to the everyday world. Judges and barristers choose their words very carefully with an eye (or ear) to their legal effects; the case of 'foolish cautions that judges need also to consider the 'public' effects of their words (and sentences) and, when possible, avoid predictable misunderstandings. As Arie Freiberg notes, over the past 30 years, 'the public' has become a 'key actor in the shaping of penal policy' as 'sentencing is increasingly being recognised as having a cathartic as well as a utilitarian function'.7 The problem with the description of child sex as a 'foolish is that it performs the latter function at the expense of the former. 2.0 SEX OFFENDING NOT A 'LAPSE': RYAN (2001) One way to trace the 'legal' history behind Pilgrim J's description in Bennett of a child sex offence as a 'foolish lapse', is to begin with the consideration given to an offender's prior character in the criminal sentencing process. …