Doli Incapax is an archaic legal maxim that refers to a child being incapable of committing a crime, under legislation or common law, because there is a presumption that they are too young to know the wrongness of their actions.

Doli Incapax is, however, a rebuttable presumption which means that if the Crown wishes to prosecute against children between the ages of 10 and 14, then they need to prove that the child had the necessary mens rea(guilty mind) meaning that they had knowledge of the seriousness or criminality of their actions, not just that they knew they were being naughty or mischievous. The Crown has the burden to prove this beyond all reasonable doubt.

I say Doli Incapax must die; it originated in England but, after the James Bulger case, even England saw fit to abolish it and have held the age of criminal responsibility at 10 ever since.

I say there is no such thing as ‘child’s play.’ Children know the difference between right and wrong and the seriousness of their actions and, in modern day Australia in 2018, they know it well before 10 years old.

Doli Incapax is a book about what sexual assault really looks like when brave victims come forward. Until our sexual assault laws change, the only legally and morally responsible advice for a lawyer to give to survivors of sexual assault in 2019 is ‘keep quiet.’

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Doli Capax– capable of guilt

Means that a child is considered capable of forming the intent to commit a crime or tort, especially by reason of age (10 years old or older).

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Nolle Prosequi– be unwilling to pursue (unwilling to prosecute)

Look out for my next book in my legal trilogy Nolle Prosequi – true stories from my angry clients about their own (and/or their children’s) sexual assault cases that didn’t get prosecuted and tells why in shocking detail. It also includes important legal updates on the various legal chapters contained in this book.

You will be outraged about the extent to which our Australian child protection, criminal law and family law jurisdictions do not dovetail and do not bring justice when it comes to sexual assault! It will leave you convinced not to step foot near a court room or a police station.

To my new family of fellow victims of sexual abuse; clients and friends who have replaced my extended paternal family, love and thanks to you, my new lifeline, ‘my brothers and sisters from another mother.’ Your bravery inspires me to keep on fighting until victims have the right to a lawyer in the criminal justice system.

I’ll never be quiet until I can be a victim’s lawyer where it matters most – in the criminal courts – until I can be your lawyer from start to end, not just for VOCAT, Royal Commissions and civil justice, the latter of which one can seldom afford, but especially when you’re a victim of childhood sexual abuse and your life follows one inevitably tragic trajectory. Let the voice of my experience smash the lies like a hammer to an eggshell.

To my beautiful parents who are the best parents in the world, beyond a shadow of a doubt, and to my husband, my rock.

To my wonderful children Christopher, Declan, Kate and Alexander. This book is for you, for your children and for your grandchildren. Always stand up for yourself, and for others when they can’t themselves, and remember that I love you, always.

Photo from left:
Cleopatra, Kate, Christopher, Declan and Alexander (in foreground) Mother’s Day 2011, Lake Provincial, Conservative Town

In the pages of this book, you will find unreserved and unashamed criticism of my immediate family, my extended family, the Catholic Church and our current Australian Legal System. My knowledge and opinions are well founded in my professional experience as a current practising lawyer in family law, intervention orders, child protection, VOCAT (Victims of Crime Assistance Tribunal), civil law and Royal Commissions. As a board member of a Family Violence Support Agency in Conservative Town for many years and a duty lawyer in the Family Violence Court, I can attest to the fact that the cycle of violence is still cycling and if you pick up a newspaper, you will see the statistics are worsening. How many more women can ‘accidentally’ slip off a balcony and fall to their death or be ‘accidentally’ shot by a loved one? I have also learned a great deal about our criminal injustice system from my own experience as a bewildered police complainant and from my criminal lawyer husband.

I participated in the Royal Commission into Family Violence as a stakeholder and as a victim. I also represented clients in the Royal Commission into Institutional Responses to Child Sexual Abuse, some of whom have trampled a similar path as I with the police and courts. I also represented complainants in the police case against Cardinal Campeius and many other clergy members. As a former Catholic who has since denounced my religion, I see that many people are also leaving the church over the shameful and sinful Catholic cover-up. However, in the Catholic stronghold that is Conservative Town, I also see a disturbingly strong growth in Catholic education, with a new Catholic primary school built by a Diocese that says it has no money to compensate victims of clergy abuse. I see a community fund drive established for Campeius’ legal defence. I see an infamous cathedral prematurely taking down the Loud Fence ribbons in a clandestine manner. I see churchmen who were complicit in covering up abuse remaining on our local Catholic school boards. Certainly, the persistent denial and desperate cover-up of child sexual abuse is very concerning, particularly in light of what we know now about what they knew then and their responses now.

Overwhelmingly though, what has informed and motivated the writing of this book is my hugely uncomfortable personal experience of our legal system as a denied and angry client who has been given multiple servings of law but absolutely no justice.

Lady Justice pictured on the outside wall near the entrance of the County Court in Big Smoke, the only person in the Court precinct speaking the truth, reminding me, ‘You’re going in blind, lady. Enter at your own risk.’ Forget about impartiality; there’s a gender war going on daily inside courtrooms across this country and women are losing almost without fail. This happens even if your eyes are wide open without a blindfold on but especially if you’re a confident, intelligent woman who knows what’s going on inside all that sandstone, glass and architectural veneer. This gender war is also taking place outside the courtroom and the sexual assaults and homicides on the daily news reveal the winner day after day. Violence is undoubtedly gendered, but so are the responses to it, including the recent #MeToo movement. I can say without a shadow of a doubt that women are their own best advocate.

Whilst my cousin’s sexual abuse of me and his reprehensible behaviour since my disclosure, showing no remorse whatsoever, together with my family’s subsequent deplorable treatment of me, has caused the greatest emotional pain, the legal system has run a close, photo-finish third. Its systems abuse for breakfast, lunch and dinner at my table. The anger I still very much feel has been generated first by the actions of my cousin and abuser – hereafter referred to as King Claudius – and his ridiculous, untenable stance and second by our legal system, happily and deliberately reinforcing his untouchable status, the new preying patriarch of our family (and that is not a typo despite his Catholicism). This has happened in each jurisdiction that I have turned to; Criminal, Civil, VOCAT and in my application to revoke a Suppression Order that both King Claudius and the law turned into a Machiavellian plot.

Why does the law continue playing this game and anoint him winner every time, even when I won with final Orders in my favour, including full costs, twice? Furthermore, what, if anything, does the Catholic Church have to do with it? Why am I so misunderstood by my legal brethren as if what I’m asking for, basic respect and acknowledgement of what happened to me, is legally unattainable? No one can rightly explain to me what’s happened in my case. My story is met with utter disbelief from every lawyer I’ve engaged or spoken with, every barrister I’ve briefed and seemingly, no one is able put things right, including a Queen’s Counsel. I’ve learned that it’s up to me, the victim of crime with a lawyer hat on, as sadly, I discovered that only I am passionate enough to fight for me properly, with the attention to detail that is required to win or get anywhere near a taste of justice. I wanted to be a client and stay a client, but the bumbling legal fools around me had to go and so I had to put my lawyer hat on again at a time when I was most vulnerable.

My aim in writing this book is to do more than simply spill the beans on the Australian Legal System’s incompetence, impotence and blatant denial of sexual abuse as a crime that deserves to be properly punished. It is to inform, advise and bolster other victims of childhood sexual abuse and to support them in making the best decision for them about what to do with that all-consuming, sad and negative energy they often carry. Ultimately, I say going to the police is currently a total waste of time. Going to court is also a total waste of time and money.

I’m afraid to say that today, in 2018, the pursuit of justice, acknowledgement, redress and apology are all concepts foreign to the law and mostly out of reach in a courtroom when it comes to sexual abuse. Why though, when those things are relevant and comparatively easy to achieve in other areas of the law? If I slipped over on a banana in Coles tomorrow, more would happen and in far less time, family would visit me with flowers, fritole(Croatian doughnuts) and Cadbury Roses and I’d be compensated. There is no industry built around shame and ‘she’s lying’ there.

In my case, like all other cases of sexual assault, there’s a presumption that ‘he’s not lying’ for our legal system says that he’s innocent until proved guilty. So, it also follows that if you can’t prove someone’s guilty, they’re deemed not guilty. It’s the trappings of the law that create a courtroom drama where guilt is seldom proved. Currently, only a very small number of cases go to committal and trial and in most of those cases, the accused are found ‘not guilty’. All the other police reports not prosecuted are as good as proved ‘not guilty’ too, for they net the same result; the perpetrator goes unpunished 97 per cent of the time despite being brave and doing everything right as legally prescribed.

But there is nothing inevitable about the way we process serious crime and we need to change it, or we can absolutely forget about sexual abuse, especially historic sexual abuse, being a crime that’s prosecuted and ends with a conviction. Just look at the current statistics around criminal convictions for sexual assault; the rates are shamefully low! There is a conviction rate of six per cent which reduces to three per cent after one takes into consideration successful appeals.1 If the OPP were a private organisation, it would surely be out of business, for its core aim, to prosecute crime and bring justice to victims, is far from met. Moreover, it’s harder still to gain any semblance of justice in a civil jurisdiction when the accused is an individual with no institution able to be held legally responsible. Just look at John Ellis and what he went through. Similarly, victims are usually unemployed or low-paid workers at best who can’t afford to go to court for years to sue their perpetrator. And even thought the Statute of Limitations and the Ellis Defense have been abolished, a complainant still needs to overcome the ‘passage of time unfairly prejudices the defendant’ argument.

This is my story without embellishment, but I admit, at times, this book may seem to belong in the fiction section because what has happened to me in the last five years and to many of my clients is so outrageous. How I wish it was all just one of my PTSD nightmares and my extended paternal family would surround me in support and the legal system would finally hold my cousin responsible for his actions, but my reality is to the contrary and my nightmare plays out every day since I disclosed it.

In this book, I will attempt to provide the answer to how sexual abuse can be properly and adequately recognised by the law, that I have come to learn the hard way, and I make numerous recommendations to change the law in this area completely. A total revamp is needed as we need to start from scratch, with a victim-informed process. Adults having sex with children is a crime. Children having sex with other children is also a crime. There is no such thing as ‘child’s play’. If you have sex with a child, whoever you are, you should be guilty of a crime. The victim of childhood sexual abuse does not care how old the perpetrator is, whether they used an object or a body part to assault you, or whether there was penetration or not. Only the judge, the OPP and the defense lawyer care about these facts and the defences to them, such as doli incapax. So why are these facts the framework that underpins our laws about sexual abuse? Because it’s not victim focussed. This book brings the focus back to where it should be – with the victim.

Why is it that sexual assault, the worst crime against a surviving victim, rarely gets any legal traction? Why did all the specialist lawyers practising in sexual assault and institutional abuse desperately try to dissuade me from suing my cousin? Because the legal path is insane. I was told by a wonderful lawyer friend, ‘It would amount to me stealing money from you and you’ll have a pyrrhic victory at best.’ She was speaking the truth and I respected her for that, but how can that possibly still be the truth in 2019?

Sadly, I see the police as being about as useful in a criminal case of sexual assault as they are when they come speeding in at the end of a blockbuster film, with flashing lights and sirens and a box of iced doughnuts thrown in for good measure, generally after the victim has already saved herself out of necessity. The findings from the IBAC Inquiry2 in 2016 reveal Conservative Town Police Station as one of the worst in Australia. Similarly, The Lindt Café siege is another fine example of the deplorable state of current Australian policing. Who in their right mind would wait for the police to save you? The same can certainly be said for waiting for justice from the courts. Forget it.

The Royal Commission into Institutional Responses to Child Sexual Abuse has now made their recommendations and the vital thing is that the government adopts their recommendations, but do we really need a Royal Commission to tell us that having sex with a child is a crime? Sadly, it seems we do. On 12 November 2017, the Western Australian reported that a 14-year-old boy was found guilty of raping a 9-year-old boy, but the judge gave him a twelve-month sentence fully suspended plus sixty hours of community service3. To a victim, this means he got away with it. Cases with outcomes like this are the norm, not the exception, as the courts are seldom tough on sex offenders, but they are the lucky ones for most reported cases don’t even proceed.

My brilliant career – yeah, right. I’m as tough as nails and I fight the good fight every day, but my like-minded and I should be winning the battle by now, case by case. My criminal lawyer husband should use his fine legal mind, present the plea . . . and then rightly lose. Why does he net excellent results time and time again, day after day, when his client is almost certainly guilty despite their instructions, which often predictably change to a plea of guilty at the last minute anyway? Why aren’t our finest legal minds working for the betterment of victims and society? Why isn’t that legally desirable? What is our preoccupation with the bad guy and his trajectory? Yes, he’s entitled to representation, but why, in cases of sexual assault, does he win 97 per cent of the time? Because victims have no lawyer and no legal standing.

As a nation, we have been brought up to revere the bad guy. Ned Kelly, a horse thief and violent murderer, is possibly our greatest hero! It seems that lawyers who can get the bad guy off have some sort of hero status, some sort of sexy or naughty image in synchrony with their client, so clever to outsmart the police and get away with the crime. In contrast, why are we victims stuck with the departmental hacks at the OPP or DHHS, where the truth is deemed redundant and sits in someone’s in tray under mountains of red tape? Lawyers flock to practise in crime in droves, but they can’t represent the victim as the victim is merely a witness for the police; they currently have no legal standing and no right to a lawyer. Even in civil matters, there’s seemingly very few who know how to competently fight for the plaintiff or even want to because it’s just too hard. I suspect that it would knock their ego anyway if the bench wasn’t regularly onside with them, for the judiciary also aims to keep the criminals at liberty despite societal outrage about it. Sadly, I see it every day. It’s a lawyer’s game and everyone gets to be onside, with the victim conveniently absent from the courtroom most of the time as police tell them they don’t need to be there! They are a non-party, which makes it easier for those feeding off their pain to dehumanise them.

I say don’t wait in vain for the legal system to save you; save yourself instead. Engage with a good counsellor, nurture yourself and work on your lost childhood sooner rather than later. Find where you were broken and rebuild. Don’t wait for strangers in the legal system to understand you or believe you as they rarely do and it’s insulting, frustrating and financially crippling. I could have gone around the world three times first class with my family of six for the time I’ve devoted and the money I’ve spent on legal fees and a fourth time for the money saved by the tasks I did when representing myself over the past four and a half years. Don’t be a principled fool like me. No one cares if you’re right or telling the truth; truth gains no traction. It just gives you a whopping great legal bill while the defence lawyers gloat at their success, not because of great lawyering but because of the armchair ride given to them and their client by the legal system.

What role, if any, does the Catholic Church play in all this unsightly legal mess? As I discovered, it’s playing the lead role so, as I see it, there is absolutely no separation between the State, the Church and the Law: the unholy trinity. Through my work in the Royal Commission into Institutional Responses to Child Sexual Abuse, I discovered that the outcomes in my own legal matters, by chance running contemporaneously, were brought to me care of the Catholic Church. It sounds like a crazy conspiracy theory, I know, but it’s certainly not. It’s a shameful cover-up, but I’ll let you be the judge.

This book is about how a creative little girl from Conservative Town, with a love of expression and social justice, found herself at the butt end of the legal system, as an adult and as a lawyer, and explains what I intend on doing about it so that my clients, both current and future, do not follow in my footsteps. As I have painfully discovered, it’s best for victims to look where police, courts and lawyers are and run as fast as possible in the opposite direction – at least for now until the system works for victims. Don’t be led to believe you should report to SOCIT; why would you bother with a 3 per cent conviction rate? Being brave doesn’t work and the truth doesn’t work. The select cases aired in the media are politically acceptable to keep the “justice illusion” alive, to keep the criminal justice industry alive, to keep government looking ‘tough on crime’. The rape stories are about those who go to trial, cases like Saxon Mullins, but what about cases that reflect the masses of complainants who are knocked out well before then. Why don’t we focus on the 97% of brave complainants, who are mainly women, who get absolutely nowhere, and investigate that intelligently. Just look at the news stories about the ABC and Melbourne University Press and one really questions the existence of independent media.

Before you begin reading my story, I need to explain my use of the words victim and survivor. I see myself as a victim and so, as author, I have opted to use this term about myself. However, I am mindful and sensitive to the fact that many people who have been sexually abused find the term offensive. I absolutely understand the issues people have with the word victim, including that it has a sense of disempowerment to it. It suggests one stays forever victim to their perpetrator. It implies that one cannot survive their experience. Arguably, it shares one’s status with those who have died prematurely through foul play; victims are often also dead. I wholeheartedly celebrate those who have survived their traumatic experience and re-brand as ‘survivors’.

Notwithstanding this, I still say I am a victim. Then and now. I was a victim to King Claudius as a child. I survived. I am a victim to King Claudius’ lies now as an adult. I am a victim to the law’s re-victimisation. I have died, not in body but in spirit. I have died a social death. I am alive but invisible, a walking dead of sorts, to my own flesh and blood, dead to my clan. But I have survived and society is listening – just not members of my Croatian family. Ironically, members of other families support me, but they likely don’t support their own who have been sexually abused. How sad is misplaced love and compassion? Like a deer that deserts its dying fawn or a do-gooder parishioner visiting sick members of the parish with a hearty casserole but who heartlessly turn their back on their own children who allege clergy abuse.

In my view, 'survivor' sanitises the loss, the pain, the hurt, the trauma and the isolation through its positive flavour. 'Survivor' implies, ‘I’ve survived, albeit with scars.’ It suggests one has transcended one’s experience and needs to draw on their resilience to ‘bounce back’. I don’t believe that is truly possible – or at least not for me. Life is forever altered. You are alive, but you need to learn to rethink, reinterpret and renew, which is all positive, but the childhood lens often remains. Having said that, life is a little like the Nancy Drew children’s adventure books I read as a child – choose your own ending. I choose to speak out and make a path for children that leads them to destinations far better than Hansel and Gretel had – lost in the forest, abandoned by family or eaten by a wicked stranger. The ugly truth is that there is currently no clear legal path for sexual-assault victims and the signposts keep getting switched by police, lawyers, judges and politicians. And so, I use the words victim and survivor interchangeably as appropriate.

My Use of Pseudonyms

I have had many a moment of mental anguish as to whether I should use pseudonyms for my family members, but I believe for authenticity that I should use real names. There is little point in hiding from this story in any way. But alas, for good old legal reasons, I have had to use a pen name, Cleopatra Jones, and give all my family members fake names.

In the circumstances, I thought it appropriate to turn my story into a Shakespearean tragedy as that’s what it is, so it wasn’t too difficult although frustrating. I have more happily used pseudonyms for the legal eagles because it doesn’t matter to me who they are as individuals but rather the position of power they have and the duplicitous role they play through legal process. At risk of being sued, I have had to de-identify my photographs and documents wherever possible, which is beyond galling, including the necessity to remove specific dates. How ridiculous is it that I can’t speak the truth in case I embarrass someone?

I apologise for the confusion I will undoubtedly cause to some readers as I have used Shakespearean names from different plays within the one family unit at times. Some Shakespearean character traits are a perfect match for my family members and in other cases, I just randomly picked another Shakespearean name to fill the large Croatian family tree.

I also sincerely apologise for offending anyone in this process, referring to lawyers as bird brains and my family members as Shakespearean narcissists, sinners and schemers.

As Dida always used to say, ‘In my way, in my way, I no offend, I no offend,’ when what he really meant to say was ‘I don’t mean to offend you, but now I’m about to offend you, so look out because here comes the insult.’