Character references tell a court you’re a good person. Why are convicted rapists allowed to use them?
- Written by The Conversation
In a recent Newcastle trial, a jury found three men guilty on multiple charges of sexually assaulting three teenage girls over two nights.
The victims provided harrowing evidence of the violence perpetrated against them. In their victim impact statements, they described the significant trauma caused by these men.
Nevertheless, the convicted rapists were able to furnish the court with 20 good character references. These references spoke to the men’s caring natures and their respect for the dignity of women. The presiding judge is yet to hand down the sentence.
This is a standard feature of the criminal justice system, but there’s a social and legal push to change it, especially in sexual assault cases.
What’s a good character reference?
The legal purpose of good character references is to provide the judge with insight into any factors that could mitigate the defendant’s sentence.
Demonstrated prior good character, through a character reference, enables the judge to ensure the appropriateness and fairness of the sentence.
It is particularly relevant when the defendant does not have a criminal history or a history of that type of offence.
Writing a good character reference is quite simple. You just need to:
Also, before giving an opinion about the character of the defendant, you must acknowledge their charge, but don’t suggest what sort of sentence would be appropriate.
As a general rule, referees are to provide an understanding of the defendant’s charge. This is to counter “old” glowing character references being submitted without the referees’ knowledge, as occurred in the Jeffrey “Joffa” Corfe trial.
In this instance, the judge took into account “powerful” character references when deciding the fate of Corfe. However, the authors of these references had provided them years earlier for a different purpose.
What about victims?
In comparison to the simplistic requirements for completing a good character reference, victims who want to provide a Victim Impact Statement must abide by various stipulations.
Most importantly, the victim can only read their statement if the defendant is found guilty, or enters a plea of guilty and is being sentenced.
The statement can include any information about how the crime has affected the victim or their family.
However, the prosecutor can remove any details about the crime perpetrated by the defendant or any other crimes they may have committed. They can also remove any references to medical conditions, if there is no supporting documentation.
Also, the victim cannot give their opinion about the character of the defendant or the sentence they should receive.
Retraumatising victim-survivors
Victim-survivors describe being re-traumatised at various stages in the criminal justice system. One such stage can be when the defendant receives a sentence the victim-survivor sees as inadequate.
Sentences can be reduced through the consideration of good character references, with a notable example being the Luke Lazarus trial.
Referees of significant standing in the community submitted good character references on behalf of Lazarus.
He was found guilty of raping 18-year-old Saxon Mullins and was sentenced to five years jail, with a minimum of three years to be served.
He was later acquitted on appeal due to an error in jury directions. Lazarus served just 11 months in jail.
Barristers consider the submission of good character references to be part of a defendant’s right to procedural fairness.
Such references can serve to promote the assault as being out of character for the defendant, indicating he is unlikely to re-offend.
But it can also be re-traumatising for a victim-survivor to hear positive character comments about someone who has pleaded guilty or been found guilty of assaulting them.
Though there are moves towards introducing more trauma-informed court processes for victim-survivors of sexual violence, reforming court culture and the justice system can be challenging – but it is possible.
Reform campaigns
Child abuse survivor advocates, Harrison James and Jarad Grice, are seeking to prevent convicted child sexual abuse offenders from having their sentences reduced due to good character references.
James and Grice have launched a campaign Your Reference Ain’t Relevant that is gaining momentum and has gathered mainstream coverage and support from advocates and the public.
Now laws need to catch up. There’s been some movement in the right direction, but nothing definitive.
In February 2024, the Victorian County, Magistrates and Supreme Courts implemented changes to rules about the use of good character references.
Practice notes now state that referees must acknowledge that they are aware of the charges against the defendant.
Also in February, a petition led by victim-survivors was tabled in the ACT Legislative Assembly to amend the relevant act so that good character references can no longer be considered when sentencing child sexual abuse offenders.
The Attorney-General has referred the petition to the Justice and Community Safety Directorate for stakeholder consultation. How this might play out is unclear, especially as the ACT Bar Association doesn’t support the move.
And in May, the NSW Sentencing Council commenced a review. It’s looking into the the sentencing act and the common law about applying “good character” in sentencing child sexual abuse offenders and in sentence proceedings in general. The council will make recommendations for reform, if considered appropriate.
On a federal level, the government in January requested the Australian Law Reform Commission undertake an inquiry into improving justice responses to sexual violence.
It has since released an issues paper for comment on various options that could likely improve justice responses for victim-survivors.
One option raised for comment was “the harmonisation of sentencing legislation”, including legislation that excludes good character being used as a mitigating factor in sentencing. The final report is due in January 2025.
