Do sex offenders deserve character references?

Date

Jane Gilmore

Jailed: Luke Lazarus outside court during his sentencing hearing for raping a woman near his father's nightclub in Kings ...

Jailed: Luke Lazarus outside court during his sentencing hearing for raping a woman near his father's nightclub in Kings Cross. Photo: Janie Barrett

Last month Luke Lazarus was sentenced to a maximum of 5 years (3 years minimum) for the rape of an 18 year old girl.  One of the many repugnant things that came out in his trial were the character references submitted after he had been found guilty.

The Sydney Morning Herald, in its report on Lazarus' trial, said:

A string of prominent people, including Waverley mayor Sally Betts, the honorary secretary of the Honorary Consulate-General of Greece in Brisbane, Tsambico K Athanasas and South Sydney Rabbitohs rugby league club chairman Nick Pappas had provided references for Lazarus, unanimously declaring their shock at his conviction and vouching for his good character. 

Betts urged the court not to jail Lazarus while the parish priest at the Greek Orthodox Christian Church of St George, Rose Bay, Father Gerasimos Koutsouras said: "The possibility of imprisonment is completely undeserved for this promising young man."

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How can anyone reconcile the idea that a man of "good character" tricked an 18 year old girl into accompanying him to an outside alley, refused to let her leave when she asked to, raped her, forced her to add her name to the list of conquests he kept in his phone and then bragged about taking her virginity? Surely, by definition, someone who has been found guilty of such crimes is not a "promising young man"? And if that claim was to be given any weight by the Judge, why wasn't it tested in court?

Character references are routine in criminal trials; it was only when Pru Goward spoke out that the references given for Luke Lazarus the issue became so public. People accused of rape, torture, child sex offences and assault have all provided character references; but, to be clear, character references for sentencing are not given in defence of the crime itself. A person giving a character reference could well be appalled by the circumstances of the crime, but still be willing to tell the court about their experience of knowing the offender prior to his arrest.

Ruth Parker has been practising as a criminal defence lawyer for five years. She explains the purpose of a character reference is to tell the court how the offender is perceived by his community and what his reputation was before the offences occurred; if the reference cannot reliably do this, it loses value. She also says that they have limited value where the crime was so horrific that the offender's prior reputation cannot outweigh the impact of their actions.

Parker says that, to her surprise, there are no formal requirements for the submission of character references, but that lawyers have a duty to not mislead the court. She gives guidelines to all her clients for the character references they seek. She asks that referees address the reference to the court, that they state that they know the crimes with which offender the offender has been charged and the events that led to the charges.

They must also state the duration and circumstances of their relationship to the offender.  While this would be considered best practice, there is no formal obligation for all defence lawyers to adhere to it. Offenders are responsible for obtaining their character references and it's up to the individual lawyer to decide whether or not to check them or submit them to the court.

Character references for sentencing are submitted as evidence, but they are rarely tested in court.

Sargent Mark Higginbotham has been a police prosecutor for 24 years and has specialised in prosecuting sex crimes for the last 7 years. According to Higginbotham, "it is absolutely the case that a character reference made by a person can be persuasive, but it depends on how well the person give the reference knows the accused".

He also made the point that in the case of sex crimes "the prosecution has a right to enquire into the basis for an assertion that sex offending is out of character".  Parker and Higginbotham both confirmed this is a rare occurrence, but that it would provide a great deal more transparency to the process if people providing character references were called upon to substantiate that reference before the court.

Higginbotham says that on the rare occasions character referees are called to give evidence in person, "the standard practice is to ask broad questions: on what basis did you know them, how frequently do you see them and in what circumstances". He adds in the case of sex offences, "Victoria Police would want to explore the reference in more detail. I would want to know if you have seen him angry, or if you know how he copes with the experiences of his own anger or sexual urges."

Again, however, this is not standard practice. But what if it was? What if every rapist knew they had to ask their referees to attend their trial and tell the court they knew about the events that led to their conviction? What if someone giving a character reference knew they would be cross-examined about more than just how well they knew the offender? What if they had to provide testimony about whether they had any knowledge about his behaviour towards women? What if they thought they might be asked about his attitudes to sex and consent? What if the prosecution could call witnesses to refute character evidence? Would prominent public figures still be so willing, or even able, to say that men like Lazarus are of "good character"? The furore and public embarrassment incurred by Lazarus' referees suggests that this might not be the case.

"Good guys" don't commit rape.  Character evidence is simply a formalised legal process for the myth that a "good guy" can do terrible things to women and not lose his standing as a "good guy". If that claim is going to be presented to a court as evidence, then it should be tested in the same way as any other evidence. As long as that is not the case, the legal system is perpetuating the "but he's such a good guy" myth to the community, the offenders and the victims of rape.