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«ON 20 MAY 1990, MR HEROS HAKOPIAN WENT DRINKING AT A NIGHTCLUB with a friend. Upon returning home early Sunday morning, he decided to drive to St ...»

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JUDICIAL VISION:

RAPE, PROSTITUTION AND THE

'CHASTE WOMAN'

Jocelynne Scutt

Lawyer

Victoria

ON 20 MAY 1990, MR HEROS HAKOPIAN WENT DRINKING AT A NIGHTCLUB with

a friend. Upon returning home early Sunday morning, he decided to drive to

St Kilda to accost and utilise the services of a sex worker. He had done this in the

past.

At St Kilda, Mr Hakopian approached Ms X, working as a street prostitute. She climbed into Mr Hakopian's van where, following a discussion, she agreed to provide oral and vaginal sex to Mr Hakopian for $90. Mr Hakopian gave Ms X the sum in advance. He then said he did not wish to engage in the activity in St Kilda, prevailing upon her to go with him to his brother's place in Carlton. Ms X agreed reluctantly. Mr Hakopian then drove not to Carlton but to the rear of his workshop in East Kew. Although uncomfortable about the change of venue, Ms X commenced oral intercourse with Mr Hakopian which she did for some fifteen to twenty minutes.

Ms X then halted, saying to Mr Hakopian that it had 'gone on too long and that if [Mr Hakopian] was not fulfilled, it was not through any inadequacy on her part' (R v. Hakopian 1991a: 4). In sentencing Mr Hakopian for rape with aggravating circumstances, indecent assault with aggravating circumstances and kidnapping, in the Victorian County Court Judge Jones summed up what happened upon Ms X's refusal to

continue:

At this point things changed. [Mr Hakopian] became angry and said that [he] had paid $90.00 and [Ms X] still owed [him] sex. [Miss X] offered to pay $40.00 back on the basis that she had initially said when [they] met, that oral sex was $50.00 and said she would leave.

[Mr Hakopian] then produced a knife and threatened her with it, and pushed her head back into [his] crotch, forcing her against her will, to have further oral intercourse with [him] (R v. Hakopian 1991a: 5).

Without Consent: Confronting Adult Sexual Violence It was this forced act of fellatio that constituted the rape with aggravating circumstances. The

indecent assault then took place:

After the forced oral intercourse... [Mr Hakopian] pulled [his] trousers up and accused [Ms X] of stealing [his] Mastercard. [He] still had the knife and also made reference in a threatening way to... a gun in the back of the van.

However, the knife was the only weapon produced.

[Miss X] wanted to get out of the van and in an endeavour to placate [Mr Hakopian], said that [he] could search her and her property to see that she did not have the card. She therefore undid her jeans and pulled them down and pulled her underwear out so [Mr Hakopian]

–  –  –

There was a struggle with Mr Hakopian continuing to hold the knife and Ms X screaming and trying to get out of the van. Mr Hakopian prevented her from doing so, driving off and shoving Ms X's head down into her lap and into the console when she was screaming.

Mr Hakopian then collided with another vehicle but drove off without stopping.

Ms X was eventually let out of the van at Heidelberg, a long distance from St Kilda, where she was picked up by a taxi driver who described her as 'looking like an mess and being very distressed'. He took her to the Heidelberg Police Station where she was both 'very distressed' and 'aggressive'.

The reporting of this case caused a furore in Victoria, and received national and international coverage. Letters to the editor deluged The Age, the majority (from both women and men) expressing disagreement with the judge's sentencing decision.

Alluding to a statement made on behalf of Mr Hakopian by his Counsel, put forward in a plea for a lesser sentence for the offender, the (then) Minister for Planning and Housing wrote in The Age of 13 August 1991:

I am most concerned about several aspects of your story 'Rape Trauma Less For Prostitute'...

No doubt other readers, like myself, were deeply disturbed by the comments made during this case to the effect that the gravity of the crime was reduced as the victim was a prostitute and the inference that this double standard is shared by the community.

As the Minister for Planing and Housing, I totally reject the incredible stigmatisation of public housing and public housing tenants.

I understand that the defence counsel, Mr George Traczyk, drew an analogy between the rape of a prostitute and 'the rape of a woman wandering through a housing commission car park wearing make-up, mascara and a seductive miniskirt'.

–  –  –

Through his comments I believe he conveys an image that is undoubtedly biased and contributes to what is generally recognised as an outdated and anti-social stereotyping of public housing and, in particular, our clients.

No matter where a woman is or what she is wearing she should feel secure and in no circumstances feel she should 'expect' to be raped because of her appearance or location.

The department has an ongoing security review of all public housing estates and attempts to make these areas as safe as possible. I hope, as a result of such slurs and comments, our clients do not feel less safe though I am sure they will unfortunately feel more stigmatised.





Judges, Prostitutes and Rape R v. Hakopian, like the case upon which it relied for its 'rationale', R v. Harris, illustrates well the way in which the judicial mind is capable of uttering contradictory statements, all the while maintaining an illusion that it is operating judicially. (Perhaps, in the end, the judges are right: is this what 'judicial' means?) 'Courts do not apply one law for prostitutes and another law for chaste women,' said Judge Jones. 'Prostitutes are not second class citizens. Prostitutes are not, by reason of their vocation, any the less entitled to receive the protection of the law.' He was echoing the

words of Justice Starke in R v. Harris:

the Solicitor-General submitted that it would be unthinkable that this Court or any other court would apply one law for prostitutes and another law for chaste women. With that general submission I entirely agree... (R v. Harris 1981: 5− 6).

Justice Crockett said, similarly:

Prostitutes, of course, are not by reason of their vocation any the less entitled to receive the protection of the law... (R v. Harris 1981: 12).

Yet in both cases, judicial (lack of) logic enables the judges to proceed at once to contradict their own principle.

In R v. Harris two women were raped, by two men in concert. One of the men (the other was tried as a minor) was found guilty 'with mitigating circumstances' on one count of rape, guilty of two further counts of rape, guilty of forcible abduction, and of common assault on two counts. The effective sentence was five years, with a non-parole period of two years. (This does not mean that the man would be released after only two years; to the contrary, time is generally taken off the non-parole period, by reason of remissions and good behaviour, so that Mr Harris could well have been released after some months in prison.) The first woman was picked up by the men using deception: the minor climbed into the boot of the car before she was approached. This was a deliberate ploy, because the men considered a woman would be less likely to get into the car if there were two men in it.

There may have been further deception:

175 Without Consent: Confronting Adult Sexual Violence

[Mr Harris] then indulged in what I understand is known as 'kerb crawling', saw the girl [sic] [Miss Y] on the kerb, and asked her to get in the car, which she voluntarily did. They discussed terms and struck a bargain for her sexual services. It is unclear to me, at all events, whether either or both of them were in a position to pay the agreed price (R v. Harris 1981: 3, emphasis added).

Mr Harris then tooted the horn, the pre-arranged signal for the younger man to get out of the boot and into the front of the car. The car was then driven, against the will of Ms Y, to parkland near St Kilda where the two rapes by Mr Harris occurred. (Ms Y was also raped by the minor, Julian.) Ms Y was then left in the park with Julian, while Mr Harris drove back into Fitzroy

Street to collect another woman:

In the case of the girl [sic] [Miss Z], some force was used to get her into the car. However, he succeeded in getting her in and drove back to the park. Here the two counts of common assault were committed and a rape on her was committed by [Mr Harris], and Julian also raped the girl [sic] (R v. Harris 1981: 4).

Ms Z was then driven to a motel (forcible abduction) where a room was rented and she was led toward it. She screamed, knocking on windows and 'generally caus[ing] a commotion'.

People came out of the motel and Mr Harris and Julian drove off. The number of the car was taken and the pair was shortly afterwards apprehended by the police.

When the Crown appealed against the inadequacy of the sentence imposed on Mr Harris, the Supreme Court (Court of Criminal Appeal) dismissed the appeal, holding

that the sentence was appropriate. In doing so, Justice Starke said:

it would be unthinkable that this Court or any other court would apply one law for prostitutes and another law for chaste women. With that general submission I entirely agree. That, however, does not mean that the factor that one of the girls [sic] was a prostitute and the other had been is an irrelevant consideration.

The girl [sic] [Miss Y] was and the other girl [sic] had been engaged in the trade of selling their bodies for gain. Accordingly it seems to me that one of the elements which is taken into account in respect of the crime of rape is not as potent an ingredient in this case as in the case of a chaste woman, and the reason I think that is so is this, that in the case of a chaste woman experience in these courts shows that very often the forcible act of sexual intercourse, while perhaps not harming her physically to any extent at all, very often has a very serious psychiatric effect on the victim. That in the same degree I think cannot be said here. The fact that the women are or have been engaging in prostitution is relevant, I think, in this way. It follows, in my opinion, that the forcible sexual act itself would not cause a reaction of revulsion which it might cause in a chaste woman... [I]t seems to me that the crime when committed against prostitutes, at all events in the circumstances of this case, is not as heinous as when committed, say, on a happily married woman living in a flat in the absence of her husband when the miscreant breaks in and commits rape on her (R v. Harris 1981: 6−7, emphasis added).

Justice Crockett, saying that prostitutes are not any the less entitled to the protection of the

law, and that Mr Harris' behaviour 'was outrageous, and calculatedly so', said:

–  –  –

On their face, the offences of which he was guilty called for penalties of greater severity than those imposed. However, on closer acquaintanceship with the case it is plain that there were circumstances to enable it properly to be described as unusual, and it was as such that the [trial] Judge described it and treated it (R v. Harris 1981: 11, emphasis added).

The circumstances? The terms of a pre-sentence report on Mr Harris and the character and antecedents of each of the two victims. That, in Hakopian's case, Ms X's income was earned from prostitution, and in Harris' case Ms Y was working as a prostitute immediately prior to the attack and Ms Z 'had also been a prostitute, although it was said, and apparently accepted at the trial, that she was not on the street for that purpose on the night in question' (R v. Harris 1981: 5), meant the sentence for each of the offenders should, in the courts' eyes, be less than it otherwise might have been. One law for prostitutes and 'chaste women'? One law for prostitutes, another for 'chaste women'?

The Case of the Elusive 'Chaste Woman'

May chaste women, at least, breathe easy in the understanding that, should they be raped, their rapist will receive an 'appropriate' penalty through the courts? May chaste women sleep more easily knowing that they are protected from rape, so far as the law is able, because rapists are, by reason of a heavier penalty accruing to men who rape 'chaste' women, alerted by the courts to the 'greater wisdom' of raping prostitutes? This seeming division of women into the 'worthy' and 'unworthy' can give no woman cause for complacency.

The Oxford English Dictionary defines 'chaste' as:

abstaining from unlawful or immoral or from all sexual intercourse, pure, virgin;

decent (of speech); restrained, severe, pure in taste or style, unadorned, simple...

According to the Macquarie Thesaurus, 'chaste' is 'celibate', 'decent', 'pure', 'single'.

In the mind of the Supreme Court in Harris' case and Hakopian's case, it seems that neither 'celibacy' nor being 'single' is a necessary prerequisite of chastity: presumably the 'happily married woman living in a flat' engages in marital sex (when her husband is at home).

Ironically, however, one of the definitions of 'chastity' or a quality of 'chasteness' is that the person is 'undefiled, unsoiled,... unstained, unsullied, untainted...' Many women who are raped feel themselves to be defiled, soiled, stained, sullied, tainted. Just as 'never had sex' cannot be what the learned judges mean when they speak of the 'chaste' woman, this latter definition cannot, then, be within the meaning the Supreme Court of Victoria attaches to 'chaste' in the context of sentencing rapists.

Women who are, however, not in 'happy marriages' may well be at risk of being included, by the Supreme Court, in the category of the unchaste. It is not only women who work at sex for money whose antecedents will preclude them from equal protection of the law through the sentencing process. The statements of the judges in Harris' case and Hakopian's case make this clear.

In both cases, the court dwells to a considerable degree not only upon the women's profession, but upon other aspects of their lives. From Harris' case, according to Justice

Starke:



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