The ‘but he can’t be’ meme continues

Brett Stewart is currently on trial on sexual assault charges. I haven’t read a lot about the case and I don’t have a firm opinion his guilt or otherwise as will be determined by the court. What I do have a firm opinion on is the ‘character references’ that are allowed to be given in evidence. I’m sure there is a good reason why they are allowed (see response from Jo in comments) but I have to admit that they annoy me no end. Good on BS for giving lots of time to charity, responding personally to fan letters, and generally being a nice bloke to be around. That’s great. But it does not mean that he is somehow incapable of the sexual assault he stands accused of. I understand that his friends don’t want to believe him capable – I wouldn’t want to believe it of anyone I know either. But that doesn’t make him immune from carrying out that action.  No one is more surprised than the neighbours when their erstwhile neighbour turns out to be a serial killer/rapist/burglar because they all think that person was so quiet and pleasant and kept to themselves. We all have a public face. I wasn’t there and I don’t know what happened, but just because someone is a nice guy with standing in the community/occassionally on TV doesn’t mean it couldn’t have happened.

ETA: Jo Tamar at Wallaby

Categories: law & order, social justice, violence

6 replies

  1. Yeah, I’ve been frustrated by this too. The un-logic seems to be that if a person is capable of doing good things, they are therefore incapable of doing anything bad.

  2. Oh, ha, I just posted over at Wallaby on this case (but from a different angle) 🙂
    I agree with you, and I hope the jury gets that, too. Unfortunately, I suspect most people are at the “he’s a good bloke, I can’t believe it” end of the spectrum (I mean generally, not necessarily re Stewart).
    The short answer to your question is that there are reasons which the law thinks are good reasons for allowing character evidence in this way. I’m not sure I’m convinced. Here’s a brief outline so that you can make up your own mind 🙂
    (1) The rules of evidence are, basically, that relevant evidence is admissible, but some types of relevant evidence might be highly prejudicial (in that the increase in “defendant guilty” thoughts is greater than would be expected given the “logical” force of the evidence).
    (2) The law does not really have a consistent position on whether character evidence is relevant, but it does consider that bad character evidence is prejudicial. The reason for this is that if you know that someone has done bad stuff in the past, you might be more likely to think that they committed the crime with which they are now charged, even if there is no (other) logical reason for you to think they committed that crime.
    (3) Remember that the criminal law is skewed to protect the defendant’s rights, because of the presumption of innocence.
    (4) The practical effect of all of this is that: (a) The prosecution can only put on bad character evidence if it jumps through certain hoops. (b) However, the defendant can put on good character evidence without jumping through any hoops.
    (5) This means that evidence which has no real relevance to the proceedings can be slathered on by the defendant in hir favour, but not by the prosecution against the defendant.
    (6) There is a risk for the defendant: if sie puts on good character evidence, and the prosecution has bad character evidence that rebuts that good character evidence, then the prosecution can put on the bad character evidence.
    The fact that Stewart’s lawyers are putting on so much, and so general, good character evidence means that the prosecution has no (or negligible) bad character evidence. Most defendants are not in that fortunate position.
    I think that there is a good argument that good character evidence should be subject to the same restrictions as bad character evidence. IIRC that is the case in the UK (but it is easier generally to get character evidence in – and the laws relating to it are pretty awful).

  3. Certain types of “good character” evidence I think could be quite useful – if you could for instance show that someone had explicitly previously turned down offers of a $100,000 bribe and followed the reporting procedures, this would probably be fairly relevant to a case involving them allegedly taking a $10,000 bribe. (Not conclusive: they might only take small bribes as they think they’re easier to get away with)
    This sort of thing, though, where good behaviour in an entirely unrelated field is used to suggest that they couldn’t have committed a crime, probably shouldn’t be allowed. That said, it’s probably more easily counterable than “previous bad behaviour evidence”, so perhaps there’s no need to ban it – a prosecution lawyer should be allowed to use “bad character by implication” counter-arguments, if they aren’t already – “Note that the defence has offered no evidence of the defendant’s good character in the area this trial is concerned with. I leave the jury to draw their own conclusions there.” – and perhaps bring in the day’s newspapers to show the numerous cases where a judge’s summation includes “otherwise good character”, “moment of madness”, and similar phrases.
    I think the problem with “good character” evidence is perhaps not in the court itself (where the prosecution should be able to counteract it) but in the court reporting where rape culture-supporting papers can use it in the “look at the harm being caused to this nice man” sense, especially if there’s an acquittal.

  4. Interesting isn’t it how today it is still thought that sexual assault is only committed by ugly and nasty characters. I think many find it difficult to accept that it is simply rarely possible for a woman to be able to predetermine if a man will assault her and really and truly is not responsible for the harm that came to her.
    I also don’t think that that is only because of misogynist reasons, ie: ‘blame the victim, she should’ve known’,but also because of the sheer powerlessness of that idea. Admitting really to a level of vulnerability that is inevitable that doesn’t diminish just because some bloke is so very well liked and is such an ace fellow in public.
    That’s what should be publicly debated on. Sexual assault is committed by really ‘nice’ men many of whom we all know in our immediate circles and why do these men think they can get away with it, or have some peculiar notion of entitlement of sexual gratification.

  5. Whatever the details of the actual case were, what upset me about the media reports was this constant reference to the fact that the young person had a mental illness. Whatever this meant in terms of the case aside, it’s a shame isn’t it that the fact of her having a mental illness was bandied about in the media with the inference that she was therefore delusional and could not be telling the truth quite simply on that basis. Sexual assault is hard enough to prove, but if you are mentally ill, then you don’t stand a chance – at least in trial by media.

  6. Casey, that aspect of the reporting made me furious, too. Nice job the media has been doing peddling ignorange about mental illness because it suits their slant on a story.

%d bloggers like this: