Tuesday, February 21, 2006

Duress Is No Argument For Rape

A trial has thrown into sharp relief the fine line between moral and criminal responsibility, writes Geesche Jacobsen.

THE two men say they were scared. Their friend seemed to be "going berserk", smashing up his flat, yelling and hitting a female friend. They say they did not know what to do. So they went along with him when he demanded the girl have oral sex with them. But both stopped the sexual acts after a few seconds and apologised to the 17-year-old girl straight away, a court was told.

Nevertheless, in a case that centred on the line between criminal responsibility and the excuse of "duress", a jury found them guilty of gang rape, and both now could face long prison terms, one even life in jail.

The girl, known only as AB, had met a group of young men at a bowling alley in July 2004. They became friends, and started partying together. She visited the Rosebery flat three of them shared, they took drugs and chatted late into the nights.

Then, early in the morning of July 30, the leader of the group, Canan Eken, came home very drunk and was "not himself".

AB pretended to be asleep in a bedroom when Eken walked in and pushed her head towards his crotch. She resisted and he allegedly started punching her.

He then allegedly ordered her to perform oral sex on his flatmate Bulent Topcu, 28(see photo). Topcu's voice quivered when he told the jury Eken had said in Turkish: "Bulent, I will kill you. Pull your pants down. I will kill you."

But AB insisted Eken's Turkish words were directed to her, not Topcu. She did as Eken had told her, but as soon as he left the room, the sex stopped.

"[Topcu] got up and he said 'just pretend that I came in the tissues' and then he spat into [a tissue] and said 'I'll tell him that I did it'," AB told the District Court last month.

"He said that he was sorry and just to go along with it so I don't get hurt any more," she said during her evidence.

Topcu told the jury he had been stabbed on an Auburn street six months earlier and had turned to Eken, a man who allegedly associated with the Rebel motorcycle gang, had guns and dealt in drugs, to feel safe. But Eken, who had told him he was on steroids, had never acted like this before, Topcu said.

"I saw [Eken's] knife. I didn't want to get stabbed again. I nearly died once. I just wanted the whole thing to be over. I couldn't move from my seat. I couldn't do nothing. I couldn't stop it. I was too scared."

AB said Eken soon returned to the bedroom and dragged her into the smashed-up living room, where there were two other young men: Eken's other flatmate, Mustapha Dagdanasar, and Chrisovalantis Papadopoulos, whom she did not know.

Eken allegedly ordered her to pull down Papadopoulos's pants and perform oral sex on him.

Papadopoulos claimed she took the initiative, while he said "no", but AB denied this, saying he pulled down his pants himself.

"I was in hysterics, I couldn't breathe properly [because of asthma] … and I was crying," AB said. She said Eken hit her on the head with the handle of a knife.

"Billy [Topcu] or Mace [Dagdanasar] got up and said that was enough, but [Eken] told them to shut up," AB said.

Soon Eken allegedly ordered the two to have intercourse and they went to the bedroom.

Papadopoulos, 27, denied intercourse took place, but AB said it did and she pushed him off her after 20 seconds, when he hugged her and apologised. Papadopoulos said he was a religious man and he cried in court when recounting he had tried to leave the flat but was ordered by Eken to sit down.

"I obeyed him because of the way he was acting before and the way he was screaming. He seemed to have something in his hand when he pointed," he said. Soon after this, AB escaped and called for help. It was about 3am.

When police arrived and broke down the door of the flat they found four young men, Eken, Topcu, Papadopoulos and Dagdanasar, hiding under a doona, fully dressed. The television and wall unit had been smashed, posters of Kemal Ataturk and Che Guevara torn off the wall, and a window broken when a James Brown doll was thrown out, the court heard.

AB said the young men should have stood up to Eken and tried to prevent the violence or the sexual activity. But Barry Cross, barrister for Papadopoulos, argued: "[Eken] acted in a frightening and terrifying way. In a way that was not only frightening and terrifying to her but to those who she was forced to perform sexual acts with."

Lawyers for both men had argued that their clients had not acted voluntarily, but under duress because they had felt threatened, acted in a way a reasonable person might act in such circumstances, and could not escape.

But the jury of eight women and four men did not accept the excuse and convicted Topcu of gang rape, carrying a maximum term of life imprisonment, and Papadopoulos of two lesser rape charges, with a maximum 20 years for each. Both are to be sentenced in March, but are likely to appeal.

When Eken appeared in court on Thursday, the Crown prosecutor, Kara Shead, told the court: "It is anticipated a guilty plea will be entered …" Judge Anthony Puckeridge adjourned his case for sentence on April 20.


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