THEATRE OF THE ABSURD
29.06.1996
Tony Koch
C ONVICTED rapist Michael
Stephen Jensen told the C ourt of Appeal that his seven-year-old
girl victim had ""enjoyed what he had done to her'' and that his
actions were ""based on love''.
He also explained how he had endured a traumatic marriage and
suffered from ""battered husband syndrome''.
It is a great pity that criminal trials in Australia are not
televised live. To do so would demonstrate to the community the
absurdity of arguments put forward in our courts _ such as those of
Jensen, who, not surprisingly,
is a repeat sex offender.
But just advancing spurious arguments does not automatically mean
juries or sentencing judges accept as truth the variety of quite
amazing ""excuses'' which are promoted as ""compelling reasons'' for
particular
criminal acts. The ""excuses'' move with the times, embrace modern
themes and the latest ""social influences''.
Two decades ago, following a guilty finding and the presentation of
the criminal history of the defendant,
the submissions put by the defence counsel in an attempt to
mitigate the penalty invariably included the hardship suffered by the
person as a child; poor education; joblessness, falling into bad
company, an addiction to alcohol and general hopelessness.
Later, use of illegal narcotics became an entirely new ""reason''
for criminal behaviour.
If legislators could take the time to sit in court and listen to
the details given to sentencing judges, they would move with greater
certainty and commitment to curb the menace of drugs in society.
Invariably, the history of people appearing before the courts _
particularly younger people _ reveals they are marijuana users, have
convictions for drug use, or have committed offences to get money to
procure more drugs.
It was interesting this week that Melbourne University and Austin
Hospital head of psychiatry Professor Graham Burrows told a conference
that marijuana was ""not really
a soft drug but is actually a hard drug''.
He said: ""It deposits on the brain and causes damage and people
who are taking it don't realise what adverse effects it's having on
them. We know it makes psychiatric illness worse, worsens depression
and schizophrenia and probably precipitates psychiatric illness, but we
can't prove it causes schizophrenia.''
In recent times, defendants have claimed to have been battered
children, battered wives, battered husbands, or to have been sexually,
intellectually and physically abused.
Assaults within the home are not a trivial matter and there is
irrefutable evidence
this conduct prevails to an extreme degree. So to a large extent,
they fall into a category distinct from those that are just plain
fanciful.
There also is an apparent increase
in the number of people whose mental health problems are
exacerbated by the use of drugs or alcohol.
Queensland is the only jurisdiction
in the British Commonwealth which has a Mental Health Tribunal _ a
body which can adjudicate before any trial on the mental status of an
accused person at the time of the alleged crime.
The latest (1995) annual report
of the Trial Division of the Supreme Court of Queensland shows 137
matters were dealt with, resulting in 85 findings that the accused was
of unsound mind at the time of the alleged crime; 28 were not of
unsound mind and were, therefore, fit for trial.
But tribunal chairman Justice Paul de Jersey brought to the
attention of the Government a serious matter. He wrote: ""The tribunal
is somewhat concerned about the apparently growing incidence of
drug-induced psychoses. Where drugs operate on an existing mental
derangement, the patient may be found to have been of unsound mind,
even though that condition would but for the drugs, have remained
dormant.
""The tribunal's concern centres on those cases where the patient
quite wilfully resorts
to unlawful drugs, knowing of the likely consequence to the
underlying psychotic state. The number of such cases appears to be
increasing, and the desirability of giving such patients the
""benefit'' of the defence of unsoundness of mind may need to be
reconsidered from the point of view of social policy.''
Inquiries reveal no action has been taken by authorities in
response to that clear warning
issued by the judge.
I T would be trite _ and wrong _ to assert that many people who fa ll
into criminal ways are not the victims of an unfortunate and under
privileged upbringing and have been denied guidance, example or
opportunity.
But when people such as Michael Jensen expect society to accept
that sick behaviour can be explained away by such claims as having been
a ""battered husband'', it all gets a bit much.
In his case, it was fortunate the appeal judges were apparently
unimpressed by his claims, and imposed an 11-year sentence for the
rape.
Jensen's case is only an example
of what goes on in the courts, and is far from an isolated
instance. The judges took into account that he took a video of the rape
of the child, as well as 18 photographs which he kept.
The court judgment said that following the offences on the child in
Queensland, Jensen
moved to Western Australia where he worked as a psychiatric nurse.
While there, he was convicted of raping
a psychiatric patient under
his care at a hospital.
He pleaded that he was ""reformed'' because he had undergone a sex
offenders' treatment course in a WA jail.
The judgment states: ""Jensen said the seven-year-old victim had
consented and enjoyed what he had done to her and that the incidents
were based on love and not on sex. He said that the moments captured on
the videotape were very "emotional' and he wanted to remember them.''
What garbage!
Jensen said psychologists had ""understood the trauma he had been
through with his first wife and said that he was suffering from the
battered husband syndrome''.
But Jensen knew the video evidence was so damaging that he had even
broken into police stations in Perth in an attempt to get the videotape
and destroy it.
The frustrating fact to emerge
from all this is that the concentration on ""help'' and
rehabilitation in our justice system appears to be solely for the
perpetrators.
Scant attention is paid to the social causes of crime or the
desperate needs of the true and obvious victims _ those against whom
the crimes are committed.
