A magistrate who suggested a rape victim had “buyer’s remorse” acted with bias and reinforced outdated stereotypes about sex crimes, a major investigation has concluded.
The Judicial Commission of Victoria found Richard Pithouse used language of “significant concern” in his dealings with Penny when she appeared before him in a victims of crime hearing.
In a separate incident, Mr Pithouse was found to make victim-blaming comments to another woman who was at the centre of a domestic violence matter.
He had said about that woman:
Well, it’s her right to get beaten up if she wants to, I suppose’’
- Magistrate Richard Pithouse, speaking about a victim of domestic violence during a bail application
It also concluded that when he failed to stop at the scene of a car crash in 2017, Mr Pithouse displayed an “element of moral turpitude” and “brought the office of Magistrate into disrepute”.
He has now been referred to Chief Magistrate Lisa Hannan, who has the power to decide on how he should be disciplined (but not whether he is dismissed – to sack a magistrate requires a majority vote in both Houses of Parliament).
The investigation into a list of complaints, including one referral from Attorney-General Jill Hennessy, found that Mr Pithouse’s comments about Penny “reinforce[d] outdated misconceptions associated with sexual offending, including that victims of sexual offences ‘ask for it’ by consuming too much alcohol.”
Whether or not the officer held this view personally (which is denied by the officer), does not lessen the impact of the inference reasonably arising from the officer’s comment, to not only the complainant, but all victims, members of the legal profession and the public who became aware of it.’’
- Judicial Commission of Victoria
The investigators have also recommended to Chief Magistrate Hannan:
- That Mr Pithouse undergo training on how to speak to sex crimes victims and the need to display sensitivity, courtesy, and respect;
- That he undergo coaching – and work under supervision from another Magistrate; and
- That he complete formal training from the Judicial College including, but not limited to, learning about the experiences of victims of crime and on courtroom management.
In a formal notification of the investigation to Penny, seen by The New Daily, the commission noted Mr Pithouse infringed standards expected of a court officer.
The commission found the judicial officer used unacceptable language about Penny including suggesting she “put herself in that position” and saying “you can’t profit from your own malfeasance”.
“The use of the word “malfeasance” implies the complainant committed a wrongdoing or illegal act,” the panel found.
The comment was gratuitous in the context of the application before him and the officer should not have made this comment.
“While this proceeding was a directions hearing and it was appropriate for the officer to draw to the attention of counsel and articulate the difficulties in the case, the language the officer used to address the difficulties causes significant concern.”
In response to an allegation Mr Pithouse had made up his mind that Penny was not raped, the commission found that “based on the comments made by the officer … and the associated findings, that the officer had done so”.
The findings state: “To an objective observer, the “buyer’s remorse” comment could reasonably be construed as the officer speculating that the complainant had not been raped, but rather had consented to sexual intercourse and then regretted it the next day, by then alleging she had been raped.”
The panel also noted:
The officer’s response to this allegation did not ameliorate the commission’s concerns.’’
The New Daily has previously revealed the same magistrate was the subject of another complaint after a social media page under his name appeared to criticise the barrister in Penny’s case.
That matter was also investigated – and on Wednesday it was confirmed that complaint was also upheld.
“The commission found it was highly inappropriate for the Officer to publicly criticise someone who had appeared before him in a proceeding he had presided over,” the panel noted.
The outcome of the investigation is the strongest response yet to a list of complaints sent to the watchdog about Mr Pithouse.
It’s also a major victory for the complainants including Penny, who has said she wanted her story told in order to demonstrate the barriers sexual assault victims face in the judicial system.
Penny, who is legally blind, had initially complained to police after she woke in the bed of a man she had met briefly while intoxicated at Crown Casino.
As is common, there was not enough evidence for police to pursue a criminal case.
But Penny had the option to go to the Victims of Crime Tribunal to have her experience legally recognised.
It was in the initial stages of that process that Mr Pithouse made the comments.
In December, Penny returned to the Victims of Crime tribunal (VOCAT) which found she was indeed the victim of a sex crime.
Ending a more than two-year fight for official legal recognition of the sex assault, Magistrate Fiona Hayes awarded Penny $10,000 – the maximum amount available in the Victorian victims’ tribunal.
The state is also covering costs for Penny’s recovery, including past and future psychological help for symptoms of post-traumatic disorder.