Criminal Law

By Ben Aulich


Director of Public Prosecutions’ position contrary to transgender human rights

Earlier this month a woman was granted bail from the ACT Magistrates Court after being charged with 72 child sex-related offences against her younger sisters in Canberra between 2006 and 2013. They include 24 charges involving incest, 4 charges of sexual intercourse, 4 charges involving choking  and 34 charges of committing acts of indecency either on or in the presence of the alleged victims.

There has been some backlash as to how this woman was able to obtain bail, which has fuelled the fire for further rhetoric about changing bail laws to ensure we make it harder to get bail in the Territory, notwithstanding at this stage the accused is simply that – an accused person and innocent until proven guilty – notwithstanding the awful nature of the allegations.

Look a little into this case and you will understand the following:

  1. The accused is said to have committed the acts nearly 10 years ago;
  2. The accused has not had any contact wit the alleged victims for nearly 10 years;
  3. She agreed to surrender her passport;
  4. The accused agreed to conditions of bail where she would not contact the alleged victims;
  5. The accused was 27 years old and had full-time employment;
  6. There was no evidence that the accused would not or could not comply with bail conditions.

In my experience, this is the type of matter where, given the above, bail would ordinarily be granted and often not opposed by the Director of Public Prosecutions (“DPP”).

What makes this case remarkable and worthy of debate and public comment is that the accused woman is transgender. For many years she had been undergoing hormone replacement therapy, treatment and other medications to assist in her transition. The prosecution opposed bail and submitted to the court that she should be remanded in custody. The prosecution further submitted that as the accused was still a “biological male” she would be placed in custody in the male area of the prison.

The prosecution said that whilst she would be incarcerated in the male section of the prison she would still be able to receive her hormone replacement therapy. Oh – what a relief!

What an appalling position for the DPP to take. Lock her up with the men. Incarceration is punishment – you lose your freedom. You are not incarcerated for punishment to be dispensed in jail. Any right minded person would understand the danger this accused person would be in if the prosecution got their way and she was remanded in custody.

The DPP should review this matter and think about whether this is a position any lawyer in his office is justified in taking and, if so, explain how his office is not playing a significant  part in trampling on the human rights of transgender people accused of criminal offences in the Territory.