The remarks by Judge Derek Bollen in the Supreme Court of South Australia have caused a nationwide furore, uniting women of all political hues in their demands that judges undergo training courses in male-female relationships and that they be vetted before they are allowed to preside over cases involving rape.
The 65-year-old judge made his direction to the jury in the trial last August of a man charged with five counts of rape and one of attempted rape of his wife. The jury acquitted the man on all charges. The remarks, which were confined to a court in Adelaide then, have grabbed national headlines now because of a decision this week by the South Australian Director of Public Prosecutions to launch an appeal to the full Supreme Court over the terms of the judge's summing up.
Mr Justice Bollen told the jury: 'There is, of course, nothing wrong with a husband, faced with his wife's initial refusal to engage in intercourse, in attempting, in an acceptable way, to persuade her to change her mind, and that may involve a measure of rougher than usual handling.
'It may be, in the end, that handling and persuasion will persuade the wife to agree. Sometimes it is a fine line between not agreeing, then changing of the mind and consenting.'
The judge also related what he described as an 'anecdote' about a 'respectable married businessman' in England who committed suicide after a woman train passenger - who was later found to be 'mentally deranged' - accused him of raping her in a compartment.
He said: 'Experience has taught the judges that there have been cases where women have manufactured or invented false allegations of rape and sexual attack. It is a very easy allegation to make. It is often very hard to contradict.'
Mandy Johns, the woman at the centre of the case, broke her anonymity when she went on television on Tuesday to reveal how she had written to the judge asking him what right he had to make such statements. She had not received a reply.
Explaining how she had brought the rape charges against David Johns, her husband of five years from whom she is now estranged, she said she had declined to have sex with him because of low sex drive after hormone treatment for a miscarriage.
'If I said no, he wouldn't stop at no. He would try and persuade. He started hitting me and saying, 'You are going to have it with me or else',' Ms Johns said. 'I was always led to believe that judges were meant to be unbiased. I honestly believe that the address to the jury gave the message that it was acceptable and OK to bash the wife.'
One of Australia's leading female judges, Elizabeth Evatt, President of the Australian Law Reform Commission, yesterday condemned the remarks, along with other women who cited them as an example of the judiciary being out of touch with ordinary society.
Eva Cox, of the Women's Electoral Lobby, said: 'The interesting thing is that he actually said it. I have a terrible suspicion that there is no lack of judges that also think it.'Reuse content