As a general rule, there is no time limit upon the criminal prosecution of serious criminal offences in Victoria. The most serious crimes, including sexual penetration of a child, can be prosecuted no matter how long ago they allegedly occurred. Is that fair?
The phrase “historical sex offences” is often used to refer to sex crimes that are alleged to have occurred in the distant past. The phrase recently made its way into Herald Sun report of criminal charges lodged against a former teacher at Ivanhoe Grammar, an exclusive private school in Melbourne.
According to a news story in The Age, Graeme Harder has been charged with 33 counts, including sexual penetration of a child, indecent assault and gross indecency. The offences are said to have occurred 25 years ago. The alleged victim claims that the offences took place when he was a student, starting when he was 15 and continuing after he turned 16.
As it applies to a male victim, sexual penetration of a child means the introduction of any body part into the child’s anus or of a penis into the child’s mouth. The law of Victoria makes stiff penalties possible when the child is under the age of 16 or, if the child is 16 or 17, if the act is committed by a teacher.
Committing an indecent assault with a child generally refers to inappropriate touching. Again, the crime is serious when the victim is under 16 or when committed by a teacher against a 16-year-old. Under those circumstances, the child’s consent is not a defence to either sexual penetration or indecent assault.
Harder, now 60 years old, is presumed innocent. His actual innocence or guilt would have been easier to establish 25 years ago. The accuser could presumably have provided specific dates and places where he says the crimes were committed. Harder could then have determined where he was on those occasions. He may have been able to produce witnesses showing that he was not with the accuser at those times. He may have even had witnesses who could say that he was at a distant location and could not have committed the crimes.
If the accusations are untrue, will Harder be able to find evidence to clear his name after the passage of 25 years? Memories fade over time. Witnesses move away or die. Diaries and other written records are long gone. The passage of time makes it much for difficult for an innocent person to demonstrate that he has been wrongly accused.
While there is a suggestion in the news stories of a “recording” that might play a role in the prosecution’s case, most prosecutions of historical crimes come down to the accuser’s word against the accused’s. If the case goes to trial, a jury will have to assess which one is more credible, keeping in mind that the burden of proof is on the prosecution. Yet the accuser’s testimony is likely to elicit sympathy that will be more readily overcome if the accused has evidence to corroborate his denial of the crime. If that evidence existed 25 years ago, finding it now will be immensely difficult.
It is often suggested that justice needs to be done when a crime is committed, even if the prosecution occurs 25 years after the fact. While that contention may have merit, it is important to remember that determining what is “just” is very difficult after the passage of so many years. If the passage of time denies the accused the opportunity to defend himself, a belated prosecution cannot be regarded as just.