‘Of good character’: Why referees such as Kutcher and Kunis shouldn’t be an option

Content warning: this article contains mentions of rape and sexual assault.

Hollywood A-listers Ashton Kutcher and Mila Kunis recently explained why they wrote character references for their friend and former co-star Danny Masterson, to be read by the judge sentencing him for his two convictions for rape.

Kunis wrote of Masterson’s “exceptional character”, and Kutcher said: “He is among the few people that I would trust to be alone with my son and daughter.”

Later the actors explained they wanted “to represent the person that we knew for 25 years, so that the judge could take that into full consideration”. However, they had not intended “to undermine the testimony of the victims, or to retraumatise them in any way”.

The context of Masterson’s crimes was institutional: he and the victims were members of the Church of Scientology. The prosecution alleged that he used his status in the church to enable and then conceal the rapes.

Earlier this year, Jeffrey “Joffa” Corfe, a legendary Collingwood AFL club fanatic, was sentenced in the Victorian County Court after pleading guilty to raping a 14-year-old boy in 2005, when Corfe was 44.

Corfe, claiming to be only 30, had groomed the boy online, enticed him to his home and engaged him in oral sex. He could not legally consent, as Corfe well knew. The long-term traumatic impacts on the boy have been profound.

The sentencing judge called Corfe’s crime “depraved”. He then turned, as the law requires, to consider any “mitigatory matters” that might cause him to reduce the sentence he would otherwise order. These matters include “previous character”, picking up general reputation and “significant contributions made by the offender to the community”. If these exist, the judge is duty-bound to turn them into a discount.

Corfe had a large pile of evidence attesting to his good character, including a reference from Father Bob Maguire, who offered his “unconditional support of Joffa”. The Epilepsy Foundation, for which Corfe had volunteered, wrote that “the world is a better place with him in it”. There were other matters in the balance, including Corfe’s age and health.

The judge ended up giving him a suspended sentence of 12 months’ imprisonment. He walked out of court effectively a free man.

There is nothing particularly exceptional about either of these cases; character evidence is standard in criminal sentencing practice. All Australian states and territories allow or mandate that convicted rapists, including child rapists, get the benefit of their “otherwise” good character when it comes to sentencing.

Harrison James and Jarad Grice are child sexual abuse survivors who earlier this year launched a campaign called “Your Reference Ain’t Relevant” to lobby state and territory governments to change their sentencing laws. Their first target was NSW.

Under NSW law, one of the mitigating factors for any offence is that “the offender was a person of good character”. There is a special provision stipulating that, for child sexual offences, the good character or lack of previous convictions is not to be treated as a mitigating factor “if the court is satisfied that the factor was of assistance to the offender in the commission of the offence”.

James and Grice argue that the quoted words should go altogether, so that character evidence will be compulsorily excluded from consideration when it comes to convicted child sex offenders. That position is supported by many advocates, including The Grace Tame Foundation, which argues that “perpetrators of child sexual abuse target the children’s family and/or community by a calculated process of grooming … Character references solicited from members of the community are only further evidence of the grooming process.”

I would go further: while child abusers hide in plain sight, creating “good character” as a means to their predatory end — that’s why we needed an institutional child sexual abuse royal commission — there is also a broader problem with our understanding of and attitude towards perpetrators of sexual violence.

It comes back to the central dissonance of rape: at least one in five women have been victims of it but, if we believe that the conviction rate accurately reflects the truth, there are almost no rapists in the world. The actual truth, necessarily, is that there are rapists — just as there are survivors — everywhere.

That being so, many rapists — probably most — are “good blokes”. I guarantee that you know a rapist who is the last man you’d suspect. Kunis and Kutcher knew a rapist for 25 years and they still think he’s a good bloke, despite stressing that they accept the verdict against him.

Evidence of good character is quite simply no guide to whether a person has raped or will rape again. Most rapists are serial. And rapists are by definition not people of good character. It follows that the law — in not just allowing but in some cases requiring that evidence mitigate the punishment and therefore the measure of society’s disapprobation of rape — is perpetrating a fiction.

This is merely one of very many examples of a fundamental flaw in the legal system’s response to rape. Character evidence is clearly a relevant mitigatory factor for most crimes, including murder, but it is completely maladapted to sexual violence offences — especially, but not only, in cases of child sexual abuse. 

Masterson’s judge gave his character references exactly the weight they deserved: the sentence was 30 years to life. It would have been better if the victims hadn’t had to add them to their toll of trauma at all.

Disclosure: I am a director of The Grace Tame Foundation, I represented Corfe’s victim and I have advised the Your Reference Ain’t Relevant campaign.

If you or someone you know has been or is affected by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au. Survivors of abuse can find support by calling Bravehearts on1800 272 831 or the Blue Knot Foundation at 1300 657 380. The Kids Helpline is 1800 55 1800. In an emergency, call 000.