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Even if the police don't pursue alleged rapists, sanctions must be enforced

By Eva Cox - posted Friday, 26 March 2004

There is considerable confusion in two areas of the public debate on the actions of certain footballers. The first is the difference between criminal behaviour and other forms of inappropriate activities and the other is the question of loyalty, of sticking by your mates. These aspects come together in the footballers' case where the reiterated comments by clubs and team mates basically claim that loyalty needs to prevail and no charges have been laid or proven, so there is no need for any other forms of sanctions.

This stance ignores some very important factors. One is that the criminal standard of proof is designed to constrain the legal system because of its ability to deprive the accused of their liberty. The state's laws and sanctions are designed to deal with criminal behaviours that are proven beyond reasonable doubt. However the legal system also has other forms of lesser sanctions such as civil remedies for torts which involve only the civil standard of proof ie the balance of probabilities. Criminal compensation and civil damages are therefore dependent on the lesser levels of proof so some victims receive financial compensation after criminal procedures fail or are not pursued.

So saying that no charges means that there is no fault ignores the wide range of legal and other forms of sanctions that exist to express our public disapproval of inappropriate activities. These may include financial penalties, loss of privileges and positions, as well as loss of public esteem and reputation. These are powerful methods of socialisation and the maintenance of acceptable behaviour.


But when the clubs and mates declare that the only criteria for action or disapproval are forms of evidence that satisfy criminal procedures, they are sending some very confused messages to the possible perpetrators. First, we know that sexual assault is often hard to prove because it rests on issues of consent and often lacks corroboration. This model means that the group exempts from sanctions the actions of footballers which have caused concern, harm and/or distress to some women but where available evidence is inadequate for criminal procedures. This position seems to assume therefore that there are only two classes of actions: those that are proven to criminal levels and the rest that are malicious or trivial. The fact is that the bulk of such actions are genuine complaints is not considered by the clubs and mates, even though we know that such types of assaults are grossly under-reported. The cultures of silencing complainants mean that many groups get away with actions that are damaging to them and their victims.

So when groups of blokes, all imbued with the culture of mateship and no dobbing, claim that consensual sex has occurred, their claims should be regarded with suspicion. There should not be a closing of ranks with the possible perpetrators being redefined as victims as they garner public support from the club. Even if the responses to the complaint suggest that there may have been misunderstandings of the women's denial of consent, there will still be problems that may require investigations and sanctions.

If the general culture after matches is that group sex and alcohol is OK, then there are still many questions of whether this process allows the space for any women involved to say no if they want to.

It is a gross cop-out for clubs to say that because no crime was proven and no funds were provided by clubs for pay-offs, they have no further accountability. They need to examine their consciences to ensure that nothing in the cultures and practices of the clubs create the environment in which men feel they can expect women to be available at will or that sticking to your mates overrides any other versions of right and wrong.

The question of responsibility here is an ethical one, not a legal one. Doing the right thing involves more than training programs and codes of conducts with occasional fines and some baby sitters. It involves changing club cultures so players and hangers on realise that normal civil behaviour is still required even when feeling tired and emotional and that violence and force can never be accepted as appropriate forms of masculinity, even if still legal.

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About the Author

Eva Cox is the chair of Women’s Electoral Lobby Australia and director of Distaff Associates.

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