Glutbusters

Remember the Ramage case? For those not up to reading legal judgments (and I suspect that would be everyone on earth) here's a long summary, and here's a quick precis:

1. Husband was controlling and violent.
2. Wife had the (unfortunately, very rare) courage to actually leave controlling and violent husband.
3. Wife found new man.
4. Husband was not happy about new man.
5. Wife told husband she was glad to be rid of him, and that sex with him would repulse her. (This is the provocation on which his defence relied).
6. Husband strangles wife to death, dumps body in a shallow grave, then has dinner with son and meets with lawyers before surrendering to police.
7. Husband pleads provocation, has murder downgraded to manslaughter, gets 11 years.

I'll leave aside the arguments for and against the retention of a partial defence to murder based on provocation, which have been pretty much played out (Phil Cleary is pretty sharp on it). The Victorian government has now abolished that defence. Hurrah.

But I'd like to highlight an incident from the trial that demonstrates the serious shortcomings of the entire criminal process.

In his closing, defence barrister Phil Dunn QC warned the jury that they may not approve of what he was about to suggest, then reminded them to remember that there were "tampons in her [Mrs Ramage's] handbag, and Dr Lynch (who performed the autopsy) will say that at the time she was menstruating … Men tend to think women get a bit scratchy around that time".

Let's stop for a moment and unpack that. "A bit scratchy". What Dunn is obliquely suggesting to the jury (7 men, 5 women) is that Mrs Ramage's pre-menstrual tension rendered her behaviour so nasty that, well, it all added up for Mr Ramage and murder is probably too strong a word for it. It's a staggering appeal to prejudice, to chauvinism, and to the nudge-nudge-wink-wink boys' club attitude that remains not only in the law, but pretty much everywhere.

And, even more tragically, it's not even factually correct. Pre-menstrual tension. PRE-menstrual. That's right, lads, once the tampon's in, it's clear sailing! That a barrister is able to so openly and bluntly play on ignorance and prejudices is staggering. And terrifying.

Certainly Dunn's suggestion is ethically suspect. However, and this is where it gets murky, he is bound to do everything he can within the law to get his client the best result possible. And what he suggested is, unfortunately, within the law. Whether playing deliberately on prejudice is within the spirit of the law is another question, but Dunn, when it comes down to it, didn't actually do anything legally wrong.

The problem is that juries are made up of random punters who carry with them all the prejudices that punters may have. And when they make their decision - and the decisions can be pretty huge ones - that's it. They don't have to explain it, or justify it, or even show that they made it based on the evidence. For all we know, they could just flip a coin and head on home. So when things like this happen, it makes me wonder if judge-only trials wouldn't be fairer. Not that judges don't carry prejudices, but at least when they behave terribly, like Judge Leo Hart, we know about it.