Rape ruling may face appeal

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Readers' Comments: Rape ruling may face appeal - Herald Sun

A JUDGE who shattered a sex abuse victim by ruling he consented to his own assault as a 13-year-old may face an appeal on the sentenced he handed down.

The Director of Public Prosecutions is considering an appeal amid widespread condemnation of a judge for summing up the sexual assault by a 24-year-old man as adolescent "experimentation" and releasing the offender on a suspended sentence.

Attorney-General Rob Hulls today refused to discuss the controversial comments or calls for Judge Michael Kelly to stand down.

Mr Hulls' spokeswoman, Meaghan Shaw, said it would be inappropriate to comment given the DPP was considering an appeal against the sentence.

The deaf victim, who summoned the courage to face his abuser in court, has had his faith in the justice system destroyed, his family says.

Yesterday, Judge Kelly said the the 13-year-old deaf boy consented to his own sexual abuse and described the sexual assault by a 24-year-old man as adolescent experimentation before releasing him on a suspended sentence.

Judge Kelly said the young teenager and his attacker -- the only deaf people in their country community -- were both victims of "experimental lust".

"There was not the difference in their levels of maturity that their physical age would suggest," Judge Kelly said.

The young victim's stepfather today said the refusal to jail the abuser was an insult that had angered, upset and bewildered the victim.

"I don't know how he will cope with it ... this could haunt him for 40 years," the stepfather said.

"I just know that he was very, very, upset last night.

"I just know that he's lost faith in the court system," he said on Southern Cross radio.

The stepfather said he was horrified when the abuse came to his attention.

His stepson had spent four years going through the legal system and bravely opted to face his abuser in court rather than by video link, only to be dealt a cruel blow.

"He wanted to confront this guy and show him he wasn't beaten," the man said.

The stepfather said his stepson's life had not been the same since the assault.

He had lost two jobs and was now considering leaving another.

Australian Childhood Foundation chief Dr Joe Tucci said the judge's comments were offensive.

"It is indefensible and . . . continuing to perpetrate a misunderstanding of how children cannot give consent and cannot in any way be responsible for their own sexual abuse," he said.

"He actually has minimised the violence against this young boy and he has also, I think, given voice to those who think sexually abusing 13-year-olds is OK."
"He is not discharging his responsibilities as a community leader . . . the Government should move immediately to suspend him or force his retirement."

Hetty Johnston, founder of child advocacy group Bravehearts, said the judge was an absolute disgrace. "We have to get rid of these dinosaurs from our benches," she said.

Calling for an appeal, Ms Johnston said community standards were not being upheld and victims needed to be respected.

"It takes away the power of all victims everywhere."

Ms Johnston and Dr Tucci both called for the abolition of suspended sentences in underage sex assault cases and clearer standards in sentencing.

Judge Kelly was rebuked by a senior prosecutor last month during the offender's plea hearing when he said the victim impact statement was a "waste of time".

The victim "wouldn't have done well in a British public school in the '30s", Judge Kelly said at the time.

"The majority of people who suffer this kind of incident at some stage in their life simply get over it and think no more of it."

Addressing those comments yesterday, Judge Kelly said he'd fallen into legal error and hoped the victim's despairing predictions for the future proved false.

But he went on to say: "The complainant . . . gives a horrific account of his perception of the effect upon him and his life of the crimes committed upon him by the prisoner, notwithstanding that he consented to the whole of the conduct and that it appears to be common ground that he initiated it."

The County Court heard that in March 2001 the older man began a relationship with the young teenager while on a camp for people with hearing disabilities.

They had been long-time friends and shared a close bond because of hearing problems. The sexual relationship continued until October 2003 when the victim's brother caught them in bed.

The man pleaded guilty to four counts of sexual penetration and one of an indecent act with a child under 16.

The court heard the man was pathologically lonely and lived in a silent world because none of his family had learned sign language.

A psychologist gave evidence that the man's inability to properly communicate had left him socially starved and naive.

Judge Kelly said: "I accept the view that this offending grew out of friendship, curiosity and immaturity, was an isolated exercise of very poor judgment, and is much regretted," he said.

The man was sentenced to two years and nine months' jail, wholly suspended for three years.

 

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Deaf victim tells judge 'time's up'

Deaf victim tells judge 'time's up' | Herald Sun

A DEVASTATED teen says the judge who freed his molester, saying he'd consented to his own sexual abuse, should hang up his wig for good.

The young deaf man said Judge Michael Kelly made him feel that confronting his abuser was a waste of time.

"Me and my whole family felt like he was on that bloke's side, just the way he talked," he said.

"I think he should step down. He can't do any serious cases any more, because he says the wrong things.

"I thought the sentence was going to be good, then everything just turned over."

Judge Kelly sentenced the man, 24, who was also deaf, to 33 months' jail, wholly suspended for three years.

He said the victim, then 13, had consented to and initiated the relationship, which was nothing more than adolescent experimentation. Both were victims of "experimental lust", he said.

But the victim's stepfather said: "It's ludicrous. At 13, you are not old enough to give consent."

And the victim said he had been too young to do anything when the abuse, which continued over 2 1/2 years, began back in 2001.

"I didn't have power enough to stop it," he said.

Judge Kelly was earlier criticised by the prosecutor for saying the victim impact statement was a "waste of time" and the boy "wouldn't have done well in a British public school in the '30s".

Judge Kelly, 73, who was on circuit in Shepparton yesterday, said: "Somebody told me there has been some comment. I haven't read it."

Asked if he was contemplating his future, he said: "Nup."

He would not be drawn on whether his comments were appropriate, or if 13-year-olds could consent. "Judges never comment to the press. They never comment on their cases. You know that," he said.

But the Herald Sun has learned that Judge Kelly is due to retire on Friday.

He retired as a full-time judge in 2004 but returned as a reserve judge. It is not known if the current controversy has played any role in his exit.

The victim's parents said they were furious.

"I don't know how he'll cope with it. As he said in his victim impact statement, this could haunt him for 40 years," the stepfather said.

The teen's mother had hoped the molester would be jailed for at least two years.

"I'm very angry and upset.

"I was just hysterical this morning -- I couldn't stop vomiting," she said.

The couple also fear for other children, saying the offender lives two doors from a country town primary school.

The stepfather said the boy had suffered depression and had harmed himself, and had seen a counsellor.

The victim said he hoped his experience would not deter others from coming forward.

"You do something about it. Later, in the future, you might feel a bit better," he said.

The Director of Public Prosecutions will consider whether to appeal against the sentence. Attorney-General Rob Hulls and the County Court Chief Judge both refused to comment.