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2005/05: Sexual abuse of minors: was the sentence given Karen Ellis appropriate?
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Sections in this issue outline (in order):
1. What they said. 2 The issue at a glance. 3 Background. 4 Internet information links. 5 and 6 Arguments for / against. 7 Further implications on this issue. 8 Newspaper items used in the compilation of the outline.
What they said ...
'The only way this will affect me is if she was to go to prison or is harshly sentenced. I would feel guilty because I know she is a good person'
The youth with whom Karen Ellis had sexual relations, commenting on what he believes should be her sentence
'Boys are just as vulnerable to abuse as girls. No adult should be having a sexual relationship with a child'
Miranda Devine, commentator for the Sydney Morning Herald
The issue at a glance
On November 10, 2004, a 37-year-old former physical education teacher, Karen Ellis, was sentenced to a 22-month suspended sentence after having pleaded guilty to six charges of sexual penetration with a minor - a then 15-year-old boy who was a student at the school where Ellis taught.
The sentence has triggered significant debate. There are those who have argued that the sentence is appropriate and recognises the particular circumstances of this case. There are others who have argued that it demonstrates a gender bias, that is, that Ellis was treated more leniently because she is female, and that the sentence minimises the damage caused by child abuse, irrespective of the gender of the victim.
The Ellis case has been compared with that of international tennis coach Gavin Hopper who in August 2004 was found guilty of the sexual abuse of a female student over a three year period. The offences occurred in the 1980s when Hopper was a physical education teacher at Wesley Grammar. The girl was 14 when Hopper began the abuse. Hopper was sentenced to three and a half years jail with a minimum term of two years and three months.
Background
Incidence of sexual abuse of children in Australia
A 1996 Australian Bureau of Statistics study found that one in four women and one in seven men experiences some form of sexual abuse, not limited to family members, by the time they are adults.
A 1999 survey found that only 38 per cent of those who experienced sexual assault reported it, mainly because they were too young, wished to protect the offender, or worried they would not be believed.
Doctors, teachers and others who work professionally with children are required by law to report any incidents of suspected abuse, however, it is generally believed that abuse cases are under-reported. Of the 35,000 notifications in 1998-99, only 3.3 per cent were made by doctors.
Children, sex abuse and the law
In Victoria the following age limits apply regarding sexual activity with children. It should be noted that there are special restrictions placed on teachers and others who interact with young people in circumstances where they are regarded as having a 'duty of care'.
10 to 15 years - no person two years or more older than someone 10 to 15 years of age is legally able to have sex with that minor, touch them sexually or perform a sexual act in front of them. Such behaviour is an offence even if the minor gave consent. Exceptions to this may be if the person believed the minor was 16 or older, or believed they were married to the minor.
16 to 17 years - no one who is in a caring or supervisory role, like a teacher, youth worker or foster carer, can perform a sexual act with or in front of a 16- or 17-year-old even with that minor's consent. Exceptions to this may be if the person believed the minor was 18 or older, or believed they were married to the minor.
Internet information
On November 4, 2004, the Victorian Channel Nine news gave a detailed report of the Ellis case. A full transcript of this report can be found at http://news.ninemsn.com.au/other.aspx?id=21595
MAKO (Movement Against Kindred Offenders) is a non-profit organisation whose aim is to heighten public awareness of incidents of child abuse with a view to discouraging the crime. It has published on its website an opinion piece by radio commentator Neil Mitchell titled 'A Crime, Not Fantasy'.
In this piece Mitchell argues that Karen Ellis should be judged harshly and that despite their adolescent sexual fantasies, teenage boys are as vulnerable to sexual exploitation as girls. The piece was originally published by AAP on August 24, 2004. It can be found at http://www.mako.org.au/newsart212.html
On November 11, 2004, Derryn Hinch released on his website an opinion piece titled, 'The Ellis scandal'. In the piece he argues why he believes Ms Ellis should have been sent to jail. The opinion piece can be found at http://www.hinch.net/says_archive04/Nov04/11-11-04.htm
On November 12, 2004, the Christian Democratic Party published a media release by Reverend Fred Nile titled, 'Fred Nile concerned over future of age of consent laws'. The reverend suggested that the sentence received by Karen Ellis might undermine age of consent laws.
The media release can be found at http://www.cdp.org.au/fed/mr/041112f.asp
The Green Man is a private blog site publishing the author's opinions on a variety of issues. On November 11, 2004, it published an opinion piece titled, 'Sexual Abuse Complexities'.
Echo issue outlines do not usually include pieces with unnamed authors, however, this piece advances the interesting argument that society's treatment of sex abuse victims can compound the offence. As this point is made in a number of formal studies cited at the end of this list, this popular presentation of the view is supplied as a matter of interest.
The opinion piece can be found at http://thegreenman.net.au/mt/archives/000989.html
The items below are items from online newspapers and they will not be available indefinitely.
On November 13, 2004, The Sydney Morning Herald, published an opinion piece by commentator Adele Horin. The piece was titled, 'Affair was wrong, but not deserving jail.' In the piece Ms Horin argues why she believes Ms Ellis did not deserve a custodial sentence.
A full copy of the opinion piece can be found at http://www.smh.com.au/news/Adele-Horin/Affair-was-wrong-but-not-deserving-of-jail/2004/11/12/1100227579352.html
On November 14, 2004, The Sydney Morning Herald, published a piece by commentator Miranda Devine. The piece was titled, 'Double standards rife when children are sexually abused'. In the piece Ms Devine argues that female sex offenders such as Ms Ellis are treated with undue leniency.
A full copy of the opinion piece can be found at http://www.smh.com.au/articles/2004/11/13/1100227628626.html
Legal Aid Victoria is a state government funded legal aid service. Its website gives a detailed account of the age of consent for sexual activity in Victoria. The information given in the background section of this issue outline on age of consent comes from this site. It can be found at http://www.legalaid.vic.gov.au/main1.cfm?categoryid=3&topicid=19&infopageid=91
In October 1991 Monash University's Centre for Health Program Evaluation published a paper titled, 'Child Sexual Abuse: Treatment, Prevention and Detection' by Rod O'Connor, Senior Research Fellow.
This paper focuses primarily on incest, where the abuse is committed by a member of the young person's family. It is interesting in that it suggests there should be a parallel treatment strategy (in addition to the criminal justice system) which offers behaviour modification programs for the offender and support for the victim and his/her family.
This paper can be found at http://www.buseco.monash.edu.au/centres/che/pubs/wp16.pdf
The Australian Institute of Family Studies (AIFS) is an independent statutory authority which originated in the Australian Family Law Act (1975). It was established by the Commonwealth Government in February 1980 to promote the identification and understanding of factors affecting marital and family stability in Australia. The AIFS is intended to be Australia's pre-eminent centre for research and information on family wellbeing.
In 1995 the AIF published a paper titled, 'Update on Child Sexual Abuse' by Adam Tomison, Research Fellow. This a brief paper giving definitions of child sexual abuse, an account of its apparent prevalence, an overview of perpetrators (including women) and a discussion of causes and possible prevention strategies. Under prevention it does not discuss the role of the criminal justice system.
It can be found at http://www.aifs.gov.au/nch/issues5.html#prevalence
In 1998 the AIFS published a paper titled, 'Long-term effects of Child Sexual Abuse' by Paul E Mullen and Jillian Fleming.
The paper argues that the effects of child sexual abuse are significantly dependent on the psychological state of the young person at the time the offence occurred and on how the individual is treated after the abuse.
This is a well laid out, informative and thought-provoking paper. It can be found at http://www.aifs.gov.au/nch/issues9.html#con
Arguments in favour of the sentence Karen Ellis received
1. The offender confessed
Unlike Gavin Hopper, Karen Ellis immediately confessed to investigators that she had had sexual relations with a minor. She also acknowledged that she was completely accountable for what had occurred.
Ms Ellis stated to investigators, 'I'm not blaming [him], because he's only 15 for God's sake. It's my fault.'
Because Ms Ellis pleaded guilty the youth with whom she had sexual relations was not required to testify before the Court and the case proceeded more quickly and at less public expense.
It has been claimed that Ms Ellis should receive some acknowledgement at sentencing for the responsibility she had shown in pleading guilty.
2. The offender expressed remorse
It has also been claimed that some recognition should be made in sentencing of the fact that Ms Ellis has expressed regret for her actions.
Ms Ellis stated to investigators, 'It's wrong, of course it's wrong. It should never have happened ... What can I say? It's a stupid teacher taking advantage ... I should have known better.'
This indication of remorse is seen as significant because it is claimed that it indicates that Ms Ellis is highly unlikely to re-offend.
One of the purposes of a custodial sentence is to prevent the offender from re-offending. In this instance it has been argued that her regret for the crime committed shows that Ms Ellis would be very unlikely to act in the same manner again and so does not need to be sent to jail to prevent recidivism.
The sentencing judge, Judge John Smallwood, specifically noted that Ms Ellis had displayed remorse, and stated that he did not believe she would reoffend.
3. The minor claims to have initiated the sexual contact and to have been a willing participant
It has been argued that a further mitigating factor in the case of Karen Ellis is that, unlike the sexual abuse involving Gavin Hopper, the minor initiated the sexual contact and was not pressured or seduced by the older, more sexually experienced person.
The youth who had sexual relations with his teacher admitted that he had pursued Ms Ellis. He stated, 'When you find someone attractive, you go after them.' Though no one appears to argue that this undoes Ms Ellis' guilt there are those who have claimed that this makes her less culpable than if she had engineered the relationship.
It has also been noted that the youth was a willing participant in the continued relationship. It has been stressed by both Ms Ellis' defence and by Judge Smallwood that the boy consented to the sexual relationship. Though, under law, he is regarded as being too young to give such consent, his willing participation is seen as a mitigating factor that could influence sentencing.
Andrew Bolt, a commentator for the Herald Sun, has suggested, 'None of this excuses her having sex with her student ... but it does make her seem more a besotted tragic than a calculating predator.'
4. The minor claims not to have been harmed by the experience
It has also been repeatedly noted that the boy involved with Ms Ellis has claimed not to have been harmed by the affair, instead he states that he gained from it.
In the victim impact statement he tendered to the Court, the youth stated, 'At no stage has this affected my life. If anything, I have gained.'
In the statement he made before sentencing, Judge Smallwood indicated that he had been significantly influenced by the victim's belief that he had not been harmed by his sexual encounter with Ms Ellis.
Defenders of the suspended sentence Ms Ellis received have contrasted the apparent lack of harm to this youth with the on-going psychological and emotional damage apparently suffered by the girl who was sexually abused by Gavin Hopper. This difference in consequences has been said to justify the difference in the sentences the two perpetrators received.
5. The sexual relationship was brief and does not appear to have been predatory
It has also been noted that the relationship between Ms Ellis and the male student involved six acts of sexual penetration occurring over a period of six and a half weeks. It has been suggested that the relatively short period over which the relationship occurred is likely to have reduced the impact it had on the student involved. Comparisons have also been made between this and the years over which Gavin Hopper is said to have sexually exploited a student.
It has further been argued that Ms Ellis' conduct, including the 499 text messages she sent the youth, indicate a major infatuation rather than predatory manipulation. Judge Smallwood has stated, 'I do not regard this as a situation... [where the offender was] predatory for simple sexual gratification.'
6. Sexual abuse of youths by women may be less harmful than the abuse of girls by men
It has been claimed that youths involved in sexual relations with older women may be less harmed than girls involved in sexual relationships with older men. One of the reasons offered for this is that the young male faces no risk of pregnancy.
It has also been suggested that the age of the young male is a significant factor. If he is already either sexually mature or sexually experienced then he may not be damaged by the relationship with an older woman.
Professor Freda Briggs, Australia's foremost expert on the abuse of boys, has claimed of the Ellis' case '... at 15 the boy could not be considered a child prematurely sexualised by a predatory woman. While society has decreed 16 to be the legal age for sex, in real life many young people start earlier. Parents can be shocked to realise their young sons have strong sexual desires, especially when sparked by older women. But it is hardly unknown.'
7. The offender has already been punished without a custodial sentence
It has been noted that even without being sentenced to a prison term, Karen Ellis has already received a substantial punsihment. As a convicted paedophile, Ellis will no longer be able to work as a teacher, or in any other occupation that brings her into regular contact with children.
The case has received substantial publicity and Ellis' face and name are now widely associated with her crime. As a result it is likely she will find it difficult to gain any form of employment in the immediate future.
Her family and social life are likely to have been significantly damaged as her husband, children and friends are not only aware of her crime but will have to deal with the negative reactions of the broader community who are also aware of Ellis' offence.
In a letter published in the Age on November 12, 2004, Rebecca Sheldon argued, 'It should also be remembered that Ellis has not been let off scot-free. She will live the next 15 years of her life as a registered sex offender. Her previously successful teaching career has been shattered, and she is likely to be unemployed for the next phase of her life.'
Similarly in an opinion piece published in The Herald Sun on November 12, 2004, Andrew Bolt claimed, 'Ellis has been made to pay. Her career is now ruined, her name is a dirty joke and her marriage is hanging by a thread. What strength it must take her simply to look her children or neighbours in the face.'
8. A custodial sentence for Ellis would harm her family and her victim
It has been argued that significant harm would be done to Ellis' three young children were she to receive a custodial sentence. The court was told that Ellis' eldest daughter, who is 13, had surgery earlier in 2004 and needed ongoing care from her mother.
Ellis' husband has also argued that he was in part responsible for his wife's offence and has indicated that he wants to try to salvage their marriage and family life.
Mr Stephen Ellis, a plumber, testified before the County Court that he often travelled interstate and had neglected his wife. He stated, 'She sometimes indicated that I did not show enough affection towards her. If I had have seen those problems I probably would have stopped going away.'
Mr Ellis further stated that he had briefly moved out of their Eltham North home after learning of the affair, but had returned and wanted to repair the marriage. Mr Ellis claimed before the Court, 'I just hope it can all be finished and we can go back to our normal life.' Mr Ellis said the couple were now doing their best 'for our children's sake'.
The youth with whom Karen Ellis had a sexual relationship has also claimed that not only does he believe she has done nothing for which she should be punished, but that he would be distressed if she were to be sent to jail. In the victim statement he tendered to the Court the boy said, 'The only way this will affect me is if she was to go to prison or is harshly sentenced. I would feel guilty because I know she is a good person.'
Arguments opposing the sentence Karen Ellis received
1. The victim was in no position to give informed consent
It has been claimed that minors are in no position to give informed consent to sexual intercourse with someone older than themselves. According to this line of argument those under 16 may have strong sexual feelings but are unlikely to have the maturity to be able to judge whether they should act on those feelings, especially in a relationship with a sexually experienced adult.
Crown Prosecutor in the Ellis case, Kieran Gilligan, has said, 'Children of this age are vulnerable. Consent is not a defence.'
Melbourne-based adolescent psychologist, Dr Michael Carr-Gregg, has warned, 'Just because a 15-year-old looks 20 doesn't mean he has the cognitive capacity of an adult. Perhaps all members of the judiciary need a crash course in the new developmental psychology of adolescence, which clearly indicates that the human brain is only fully formed in the early 20s.'
2. The harmful effect of the relationship on the victim may not be immediately apparent
It has been argued that the deleterious effect on a child of a sexual relationship with an adult may take some time to become apparent.
Rebecca Deering is conducting a study on the effect of sexual abuse on male children as part of her doctorate in forensic psychology at Deakin University.
Ms Deering has claimed of male victims, 'They lived in a world of confusion around what's happened, what's going on - is it abuse or was it based upon motherly love and that kind of thing? It often takes years of therapy for someone to come forth and talk about it.'
Ms Deering has further observed that for many of the victims she interviewed, responding to her questions was the first time they had been able to admit the harm that had been done to them.
It is also worth noting in the Ellis case that even the young victim's continuing loyalty to Mrs Ellis may leave him vulnerable to later harm. He has supported her by his statement that he does not see himself as a victim and by his appearance in court during her trial. However, despite this loyalty it appears that Mrs Ellis intends to re-establish he relationship with her husband. In years to come the boy may well feel as though he has been exploited in this relationship.
3. The relationship appears to have done the victim immediate harm
It has been claimed that the relationship with Mrs Ellis has had immediate damaging consequences for her young victim. The young man, who is now 16, is living apart from his mother as a result of his affair with Mrs Ellis. He has also left school in Year 10.
Critics of Mrs Ellis actions claim that on an immediate personal level the relationship has clearly harmed the boy.
In an article published in The Sydney Morning Herald on November 13 2004, Miranda Devine wrote, 'As for Karen Ellis's victim, he didn't finish school, is now estranged from his single mother and living with his grandparents. That would appear to be a negative impact, in anyone's eyes, not least his poor mother's.'
4. The offender violated a position of trust
It has been claimed that Mrs Ellis' actions were particularly heinous because as a teacher she was in a special position of trust with regard to the young people she was supposed to care for and educate.
In an article published in The Herald Sun on November 11 2004 Neil Mitchell compared the case of Karen Ellis with that of Gavin Hopper. (Mr Hopper has recently been sentenced to over two years jail as a result of sexually abusing a 14 year-old student in his charge.) Mr Mitchell noted, 'Karen Ellis and Gavin Hopper could be brother and sister. They are peas in the same sleazy pod. Both are a disgrace to their calling - because they seduced, manipulated and exploited children to whom they had a duty of care.'
In an article published in the Sydney Morning Herald on November 13 2004, Miranda Devine argued, 'Society has always drawn a sharp line against child sexual abuse. The law requires more restraint of teachers and those in authority over children. How, otherwise, can parents trust their children are safe at school?'
5.The offence has harmed the families of the offender and the victim
It has been claimed that both Mrs Ellis' family and the mother of the boy concerned have been harmed by the affair. There are those who argue that the extent of the harm Ellis has done others in addition to her immediate victim warrant her receiving a custodial sentence.
In an article published in The Herald Sun on November 11 2004 Neil Mitchell wrote, 'I have talked at length to the boy's mother who does not want to speak publicly because she is estranged from him and that is tearing her apart. She is anxious not to widen the rift, but she tells of a loving and close family destroyed by this self- obsessed blonde predator. The boy has been fooled and believes this woman really cares for him. He blames his mother for going to the police and breaking them up.
Ellis's own family - her husband and three children, has been deeply hurt and embarrassed by this woman's actions ... Her oldest daughter is about 12, barely younger than the boy who was seduced. Imagine her despair watching her mother's infamy.'
6. A non custodial sentence will not act as a deterrent to others who might commit this crime
It has been claimed that the apparently lenient sentence given Karen Ellis will not serve as a warning to other potential child molesters, either male or female.
In a letter published in The Age on November 11, 2004, adolescent psychologist, Dr Michael Carr Gregg claimed, 'While accepting that the public is not in possession of all the facts, Karen Louise Ellis' 22-month suspended sentence potentially sends a worrying message. Adults in a position of trust may now believe they can breach that duty of care and walk away with a slap on the wrist.'
In a letter published in The Age on the same day John Catchpole wrote, 'With regard to deterrence of others in the community, if we accept that a male offender would most likely have received a more severe penalty, it may be that the sentencing judge considered that the need to deter males is greater than the need to deter females because the risk of a similar offence being committed in the future by a male is higher than the risk of a similar offence by a female.
The danger, however, is that some people may see Wednesday's sentence as an example of the penalty that would be applied to a future offender of either sex. In that case, the sentence imposed may weaken the deterrence of potential male offenders.'
7. Child abuse is a serious crime irrespective of the gender of the victim
In an article published in The Sydney Morning Herald on November 13, 2004, Miranda Devine argued, 'Boys are just as vulnerable to abuse as girls. No adult should be having a sexual relationship with a child ...'
It is sometimes suggested that sexual abuse of a male child by a woman is somehow more benign than sexual abuse of a girl by a man. However, critics of this position note that though a male child who is the victim of such abuse is not subject to the possibility of pregnancy, the young person is still liable to serious emotional damage and the perpetrator is still exploiting the immaturity and inexperience of someone far younger.
Neil Mitchell made the following comments on the Ellis case in an opinion piece published in The Herald Sun on November 11 2004. Mr Mitchell wrote, 'Women can be just as predatory as men. Young boys are susceptible to the same hurt, confusion and long term disastrous consequences as any young girl subjected to the same abuse. The pain of this will burn for years.'
8. Society tends to underestimate the extent and impact of child sex abuse committed by women
It has been claimed that society has a tendency to minimise the effect of child sex abuse by women and the extent to which this crime occurs. It has further been claimed that this is in part because victims are reluctant to report the crime and may not at first acknowledge the harm which has been done them.
A current study being conducted in Victoria suggests that child sex abuse by women may be escaping punishment because of their victims' embarrassment and society's failure to understand the gravity of the crimes.
The study also indicates that female sexual abuse of children - perpetrated by mothers, teachers and childcare workers - is occurring at greater rates than was once believed.
The research is being conducted by Ms Rebecca Deering as part of her doctorate in forensic psychology at Deakin University.
Ms Deering has claimed that her research also indicates that the impact of such abuse is greater than is commonly appreciated. She has stated that many of her research subjects have 'basically written that it has had a huge psychological impact on their lives [and] that they've never spoken about it for years and years'.
Further implications
It has been claimed that child sex abuse is among the last of the generally accepted sexual taboos in Western society. Premarital sex, extramarital sex and homosexuality have all acquired general social acceptance if not active endorsement. However, even in the area of child sex abuse there is no full consensus on the nature of the offence and the penalties that should apply.
What the Ellis case appears to demonstrate is that there may be a tendency in the general community to see the sexualisation of young males, especially those well into puberty, as less damaging to the minor concerned than the sexualisation of young females. The case also appears to suggest that for some in our society, including some judges, the sexual 'abuse' of children is not inevitably an offence requiring a prison term. They would argue that there are circumstances where such 'abuse' causes little or no harm to the minor concerned. Indeed Herald Sun commentator, Andrew Bolt, has suggested that in some cases the principal harm that is done arises from the belief that harm has been done.
The debate surrounding this case shows that we are a long way from an agreed position on this question. It is worth noting that there are many who consider that Judge Smallwood's sentence was far too lenient. Among those who hold this view, there would appear to be at least some support for a mandatory minimum sentence for child sex abuse. Such a position implies that under any circumstances sexual contact between a minor and an adult is wrong and should be punished under the law.
However, perhaps most disturbing are how many dimensions of this issue attract almost no media attention. In our anxiety to decide whether to imprison or not, there are those who believe we are ignoring far more fundamental aspects of child abuse.
There is currently great concern among child welfare authorities that the nature of the sexual abuse of children is popularly misrepresented. That the different forms that such abuse can take are ignored. That the variety of consequences it can have are not generally acknowledged. That there is still an artificial and misleading emphasis on 'stranger danger'. That children who are subjected to abuse frequently suffer whether the perpetrator is imprisoned or not. That there are insufficient on-going supports either for the immediate victims of abuse or their families. And finally, that little or no systematic attention is given to preventing recidivism among offenders.
Rather than debating whether Karen Ellis should go to jail it would be interesting to know what support is available for her family, for the youth with whom she had sexual relations and for his mother, from whom he is currently estranged.
Sources
The Age
5/11/04 page 7, news item by Chee Chee Leung, 'Teacher the victim, sex-case teenager tells court'
11/11/04 page 3, news item by Chee Chee Leung, 'Outcry from crime victim groups as teacher avoids jail'
12/11/04 page 16, letters with headings, 'A case of the punishment fitting the crime', 'Perhaps gender does matter', 'Gender bias' and 'Wrong message'
14/11/04 page 20, editorial, 'The quality of mercy'
The Australian
5/11/04 page 3, news item by Gosia Kaszubska, 'Child-sex teacher might avoid prison'
6/11/04 page 7, news item by Michelle Gilchrist and Drew Warne-Smith, 'Consent and ethics collide in teacher sex case'
12/11/04 page 3, news item by Gosia Kaszubska, 'Sex case boy's plea to mum'
The Herald Sun
5/11/04 page 7, news item by Christine Caulfield, 'Strain led to sex with boy'
11/11/04 page 1, news item by Christine Caulfield, 'Teacher sex fury / Woman dodges jail term'
12/11/04 page 2, news item by O'Neill and Mitchell, 'Boy says he wasn't seduced'
12/11/04 page 22, editorial, 'Principle the same'
12/11/04 page 23, comment by Andrew Bolt, 'Lesson in humanity'
15/11/04 page 7, news item by John Ferguson, 'Female sexual abuse hidden'