equity in the delivery of justice

Who has the right to determine what is equitable between women and men?

Justices Michael Kirby, Ken Hayne and Ian Callinan of the High Court of Australia recently confirmed a sentence of six months imprisonment handed down by Victorian Supreme Court appeals judge Justice Frank Callaway to a 37-year old female former school teacher who had an intimate relationship with a male pupil and was initially given a non-custodial sentence.

The High Court agreed with the appeals judge that the former teacher should not be treated more leniently than a male.

An editorial in the The Age suggests that jailing of the former teacher "highlights the problems the courts face in dealing with certain sex offences".

"At the time of the offences, Karen Louise Ellis was aged 36 and married with three young children. She worked as a physical education teacher at the school of the victim, a 15-year-old student in year 10. They engaged in sexual relations on at least six occasions over a six-week period, Ellis taking him to her home for sex when her husband was absent. The court heard that the sex was consensual. In a statement, the victim indicated that he took the initiative on each occasion, that he knew what he was doing and wanted to do it. But, the appeal court noted, Ellis was in a position of authority and should have taken steps and had strategies in place to prevent this relationship."

"Ellis pleaded guilty, expressed remorse and is considered by the courts as unlikely to re-offend. The appeal court went so far as to note that she 'is not a predator in the ordinary sense of that word'."

"The question of appropriate punishment was the issue facing the appeal court. Ellis was initially sentenced in the County Court to 22 months' imprisonment, wholly suspended. The appeal court overturned this, concluding it was 'manifestly inadequate'. Instead, it imposed a sentence of two years and eight months, with six months to be served in prison. In so doing, the court was mindful of the need for 'general deterrence, just punishment and denunciation of her conduct'. It also considered the need for equality before the law, regardless of whether an offender is male or female."

"Ellis' actions were not comparable, for example, to those of tennis coach Gavin Maxwell Hopper, who seduced a 14-year-old female student and was last year convicted on similar offences. Despite the evidence, Hopper denied the sexual liaison and showed no remorse. His victim was deeply scarred by the experience. Hopper was rightly jailed."

On ABC Local Radio, reporter Lynn Bell notes that "[i]n his judgement, Justice Callaway said Ellis must be required to serve part of her sentence in prison. Unless that's done, he said, the principle of equality will not be observed, nor would the court sufficiently condemn the respondent's conduct."

Writing on the News.com site Melissa Jenkins explains that Justice Callaway ruled that "[t]he sentence unintentionally violated the rule of equality before the law, including equality of concern for male and female victims and equality in the sentencing of male and female offenders" .

Jenkins reports that "[i]n the High Court in Melbourne today, Ellis' barrister Robert Richter QC argued Justice Callaway wrongly assumed Ellis received favourable treatment because she was a woman and he had failed to take into account the exceptional circumstances surrounding the case".

"He said the victim was just four months shy of his 16th birthday when the offences occurred and did not feel victimised."

"Crown prosecutor John McArdle QC said the law was designed to treat male and female offenders equally. 'The legislation is not gender specific either as an offender or a victim.' he said. 'The whole purpose of this law is to protect male or female children'."

"'It does seem to be an offensive principle that a female teacher in these circumstances is treated more leniently than a male teacher would be', Justice Kirby said."

Judges of the High Court of Australia, all men, are clearly of the view they may safely determine what is equitable between women and men, yet none of these judges can act without male bias in determining equity.

The equitable delivery of justice is not served by men with a final say on appeal abandoning natural justice in their deliberations.

The safe method to determine equity is from the overview of elders, whose male and female minds are physiologically similar.

A further appeal over decisions on equity between women and men from the High Court to an executive of elders presiding over women's and men's legislatures accompanied by courts of women's and men's jurisdiction would restore equity between women and men in the delivery of justice.

September 15, 2005