In recent weeks and months, the talk in Melbourne, Sheffield, Steubenville, and Tallahassee has been of football and rape. As shown in case after case, players accused of sexual crimes not only gain a measure of protection from athlete privilege, they also find a way back on the field.

 

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In November 2014, Stephen Milne became the first Australian footballer charged with a serious sexual offence to take any legal responsibility for his actions. This landmark case, relating to a 2004 incident, is arguably the highest-profile case involving a player from the Australian Football League (AFL). Certainly it is the longest-running, taking ten and a half years to reach a conclusion. But the outcome – a $15,000 fine for Milne’s admission to indecent assault, with no conviction recorded – seems an anti-climax for a case that sparked a multitude of headlines about sexual violence, police corruption, sporting sexual cultures, and athlete privilege over the course of a decade.

In March 2004, following a preseason cup victory by their club, St Kilda, Milne and his teammate Leigh Montagna went back to Montagna’s apartment with two women whom they had met at a nightclub: the then-19-year-old victim and her friend. The victim had consensual sex with Montagna, while the friend had sex with Milne. Later, according to the victim’s testimony, she believed that she was again having sex with Montagna, but told him repeatedly “no” when she realised he wasn’t wearing a condom. She said that, regardless, the player persisted. It was only when her friend turned on a light that the 19-year-old discovered that the footballers had swapped partners without her knowledge or consent, and that she was with Milne rather than Montagna. She fled to the bathroom and the two women left the apartment soon after.

No charges were laid when the case was first reported in 2004. In June 2010 two detectives who had worked on the case went to the media, alleging that other police who were supporters of the St Kilda football club had pressured them to drop the case. Detective Scott Gladman stated that evidence which had been provided to the club went missing. He had been told, “She’s just one of these footy s***s that runs around looking for footballers to f***”, and that he should make the case go away. Evidence was still missing from the brief when police handling of the case was later investigated, although a report by the Office of Police Integrity stated that they could not prove deliberate sabotage. The case was reopened in 2012, and at a committal hearing in November 2013 Milne was ordered to stand trial on three counts of rape.

This past November, two weeks before his rape trial was due to start, Milne instead pleaded guilty to the single, lesser count of indecent assault. The rape charges were dropped, presumably under a plea bargaining agreement. Under Victorian law, indecent assault includes sexual assault that does not involve penetration, including touching another person’s genitals or a woman’s breasts, or a kiss. Indecent assault carries a maximum penalty of 10 years’ imprisonment. However, rather than impose any kind of custodial sentence, Justice Michael Bourke of the Melbourne County Court opted not to record a conviction and fined Milne $15,000.

When weighed against the seriousness of the original charges, Milne’s penalty was light. In her victim impact statement, the woman detailed nightmares and problems sleeping, as well as feelings of isolation and negative impacts on her study, work, family and social life. Justice Bourke noted that he could only rule on the charge before him, not the offences to which the victim had testified. Nevertheless, the penalty he imposed was at the low end of the scale even for this crime. In Victoria in 2011-2012, more than 40% of those sentenced for indecent assault received an immediate custodial sentence; in only one case during that period was a fine imposed, and in every case a conviction was recorded. However, no Australian footballer has yet had a conviction recorded for a sexual offence, despite more than 20 rape cases being made public, involving at least 55 professional football players and staff. Only two have even stood trial. Both were acquitted.

Protecting the perpetrator, not the victim?

The lack of a conviction in Milne’s case and the justification provided seems to indicate a greater concern for the perpetrator’s welfare rather than the victim’s. Justice Bourke directly attributed his decision not to record a conviction to a desire to aid Milne’s future job prospects, mentioning the impact the charges had on Milne’s career several times during his ruling. He also emphasised the “very considerable disadvantage and distress” that Milne and his family experienced as a result of publicity surrounding the case.

When it comes to sentencing, there seems to be a perception that a sexual assault conviction will have a worse impact on an elite male athlete than on any other person. Milne is only one example among many, in several countries – this belief is expressed by media commentators, judges, and the general public when athletes are convicted of sexual crimes, including rape. There is a common perception that any penalty a star athlete receives is somehow more harsh than it would be for an “ordinary” person.

Take for example the 2013 case in Steubenville, Ohio. High school footballers Trent Mays and Ma’Lik Richmond were convicted of raping an unconscious teenage girl and posting photos and videos of the rape on social media. However, when reporting on the guilty verdict, CNN’s Candy Crowley and Poppy Harlow notoriously lamented how the footballers’ lives had been destroyed by the conviction rather than focusing on the impact on the victim.

It might be true that an elite male athlete experiences graver consequences than other perpetrators, because of his public profile. But placing such high value on the impact a crime might have on the perpetrator, at the expense of the victim, sends the message that the athlete is more deserving of sympathy and consideration. This implies, however indirectly, that the actual victim of the rape (or indecent assault) is somehow to blame for the footballer’s punishment.

Consequences are severe, for all rape victims

The consequences of protecting footballers who commit sexual crimes are severe and wide-reaching. When the “best” outcome for any rape complainant – since the first case against a footballer was made public in 1998 – is a $15,000 fine with no conviction, this sends a message to any future victims that their case will not succeed. They will not achieve justice.

It also perpetuates pervasive and damaging myths about rape: that it is not very serious, and that women often lie about it. In fact, serious, ongoing psychological trauma, nightmares and inability to trust others are all common responses to rape, which can last for many years. Many studies have shown that the rates of false report of rape are low, similar to those for other crimes: between 2% and 8%. There is thus a cycle where belief in these myths hinder the successful prosecution of cases, and reporting on the outcomes strengthens belief in the myths.

Of course, attitudes that allow for footballer privilege are not ubiquitous. When sentencing Welsh soccer player Ched Evans in 2012 to serve five years in jail for rape, Judge Merfyn Hughes QC declared that Evans had “thrown away” his own career. Justice Hughes acknowledged that the perpetrator was solely responsible for any impact on his future prospects and that he had to accept these consequences. Evans, however, maintains his innocence, and he was released from prison in October this year after serving just two and a half years for raping an unconscious woman.

The consequences for athletes convicted of rape are often not as severe as many make out. Ma’Lik Richmond, released in January 2014 after serving just nine months for his part in the Steubenville gang rape, was back with his school football team in August. Following his release from prison in October 2014, Ched Evans was permitted to train with his former club, Sheffield United. Sheffield reversed their decision only after a strong public outcry, but other clubs are reportedly still interested in signing him.

Representatives of several UK footballers’ associations argue that Evans should be allowed to continue his professional football career, as he has served his time and “should be allowed to work.” However, being a celebrity professional footballer is much more than just “work.” Elite athletes hold an extremely privileged position in society, with celebrity, money, and teams of staff dedicated to their well-being both on and off the field – not to mention their influence as perceived role models.

To allow an elite footballer to return playing at the professional level after a rape conviction is to ask fans to continue to accept him as one of their “family” or “mates.” Like it or not, playing elite sport entails being a “hero” to many fans. A convicted rapist should not be able to hold that kind of position, and no fan should be asked to turn a blind eye to rape in order to remain a supporter of their team.

 

Deb Waterhouse-Watson is author of Athletes, Sexual Assault, and “Trials by Media.” She is a Postdoctoral Research Fellow at Macquarie University, investigating the process of court reporting on sexual assault trials involving Australian footballers. Deb is on Twitter at @DebWaterhouseW.