May 2013

Arts & Letters

Behind Play

By James Button

AFL players Mitch Duncan and Jimmy Bartel dressed as Ricky Nixon and Kim Duthie, October 2011. © David Caird/Newspix

Anna Krien’s ‘Night Games’

It’s a courtroom drama that begins where most end, with the verdict. Justin Dyer is the defendant on six charges of the rape, attempted rape and indecent assault of Sarah Wesley. The jury files into court. The foreman stands to speak, the document in his hand shaking. Not guilty, he declares of the first charge.

“Justin buckles and lets out a huge wracking sob,” Anna Krien writes. With each subsequent “not guilty”, the sobbing and gasping grows louder, from Dyer and from his family. The judge dismisses the jury; the reporters wait at the door for a quote from the defendant. Krien stands with them, but knows she doesn’t belong. So she takes a deep breath and walks over to the defendant’s family, with whom she has sat outside court for the past three weeks of the trial. Dyer’s grandmother gives her a big hug, which tugs Krien across a line she hadn’t wanted to cross. “I still don’t know who is guilty and who is innocent, and yet here I am, hugging the grandmother in the defendant’s corner, and that’s a problem, don’t you think?”

Krien’s new book, Night Games, is about a rape trial, but it is also about top-level football and the treatment of women. It is about the problem of prosecuting sexual assault, especially in light of what Krien calls “the grey area, this gulf of uncertainty between consent and rape”. More than that, it is about the struggle to know the truth in human relations: why the law can fail to find it, and whether a writer can do better. Finally, it is about the author herself, and the perilous journey she has undertaken in writing this book.

Does Anna Krien go looking for trouble? She hung out in Alice Springs to report on Aboriginal drinking culture for this magazine. Her previous book, Into the Woods, tried to sort out the rights, wrongs and intractable hatreds in the battle between loggers and environmentalists over Tasmania’s forests. For her Quarterly Essay on animals, Us and Them, she visited abattoirs in Java and Sumatra, after revelations of animal cruelty there saw Australia suspend its live cattle trade, to see for herself what the killing looked like.

These gripping eyewitness accounts are testimony to why good long-form journalism matters, and why its near disappearance in Australia is polarising debate and thinning our culture. It acknowledges complexity; it doesn’t take easy positions. Yet it does take a side. You live with a subject for so long, weigh it up so often in the middle of the night, hear and wrestle with all the voices, that by the end you cannot retreat into the impartiality and balance of daily news journalism. Krien watches the reporters at the end of the rape trial and admires “their poise, their unmuddied positions, absolved in their detachment”. But she cannot be detached.

On a Sunday in early October 2010, the day after the grand final replay between Collingwood and St Kilda, a young woman tells police she has been raped the night before. She makes multiple complaints against several men, including two Collingwood footballers, Dayne Beams and John McCarthy (who later died when he fell from the roof of a Las Vegas hotel while on an end-of-season footy trip).

The woman – whom Krien calls Sarah Wesley, since under the rules of rape trials Krien cannot use her real name – says she had consensual sex in a South Melbourne house with a man called Nate Cooper. She was then “compelled but not forced” to have sex with Dayne Beams, before there were “two to four other naked males in the room”. Wesley tells a policewoman she was then raped and forced to perform oral sex.

Despite this, police decide fairly swiftly that they do not have enough evidence to lay charges arising from what happened in the bedroom. Instead, they lay charges over another sexual act that took place shortly afterwards in a nearby laneway, where Wesley alleges that Justin Dyer (also not his real name) raped her. Dyer insists that she consented.

Before the empanelling of the jury, the prosecution and defence lawyers and the judge – Krien calls them the magic triangle, with their own codes and mysteries – come to an agreement. What happened in the bedroom will not be disclosed in the trial. Instead, the jury must reach a verdict based only on its view of what happened in the laneway.

Sitting in court, Krien is confused and troubled. How can the events in the bedroom and laneway be separated? Surely the first precipitated the second: when Dyer saw what happened in the bedroom, did he think Wesley was happy to “do the rounds”? Krien can’t help wondering why the jury will be led carefully around “great potholes of back-story” and why Dyer should be the only one left facing charges.

Evidently police felt they could not prove that Wesley did not consent to having sex with several men in the bedroom, or that the men did not know she did not consent, or they felt that the defence would insinuate promiscuity and take Wesley apart. Or all of the above. But, Krien wonders, in avoiding this first encounter, what did the Crown have to work with? Did it cruel its own case from the start?

While the prosecutor is adamant he does not want to go into the bedroom, he tells the judge that on any view of it, Wesley “was the subject of the most appalling of conduct in that house”. The judge agrees: “Very ugly happenings.” But ugly happenings are not necessarily prosecutable rape.

A person threatened with sexual assault is widely seen to have two options: fight or flight. In fact, most people do neither, a former head of Victoria’s sexual crimes squad, Glenn Davies, tells Krien. Humiliated and vulnerable, they freeze. But in our adversarial legal system, freezing can be made to look like assent. Defence lawyers still demand: “Why didn’t you scream?”

“I thought I was worthless and I thought I was nothing ... I didn’t scream … I think I was in shock.” This is a 19-year-old New Zealand barmaid trying to explain her response when 12 players and staff from the rugby league team, the Cronulla Sharks, either had sex with her or watched. No charges were laid. Krien shows how exposure of the incident by Sydney Morning Herald reporters Jacquelin Magnay and Jessica Halloran, and then in the 2009 Four Corners program, ‘Code of Silence’, helped to break open the hush-hush culture around footballers and what is now known, euphemistically and inaccurately, as group sex. In fact, Krien writes, the old-fashioned, brutal term “gangbang” is more honest, since it conveys the contempt in which the woman is held.

The incident is one of a number of alleged sexual assaults involving National Rugby League and Australian Football League players over the past decade. Yet charges, let alone convictions, are rare because the sex, despite its turning into torment for the woman, often begins with consent, or because it is her word against that of a number of men, who invariably say she was “up for it”.

And indeed, there are women who throw themselves at footballers. Krien describes them as part of a vast culture of entitlement we create around elite players: the lawyers who keep them out of court, the police who cover up their misdeeds (the book documents two stark cases of such collusion), the club officials who say “boys will be boys”, the starstruck reporters and fans, down to the shopkeeper who won’t take a player’s money for a burger. It all leads some players to think they can do anything.

Slowly, sometimes clumsily, with many backsliders and dissidents in their ranks, the leaders of AFL and rugby league have introduced new codes of respect and responsibility towards women. There have been efforts to educate players that a bunch of powerful and perhaps famous men standing over a naked teenager or young woman requires a whole new definition of consent, if one is possible at all.

Often women are driving the changes. Krien pays tribute to female reporters such as Magnay, who dared to enter dressing rooms to get quotes from players and coaches on game day. Though women and girls make up more than 40% of fans at AFL games and 37% at NRL matches, some men viscerally resent women’s entry into their cosy club.

Other social changes have shaken football. The silences of old Australia are long gone. Every individual can broadcast on Facebook or Twitter and disclosure is increasingly the norm. In 2010, Kimberley Duthie, then 17, said that two St Kilda players had sex with her, one getting her pregnant. Though Duthie was later found to have lied about the pregnancy and about taking the naked photos of players she had posted online, Krien explains why many people admired her. Duthie wanted to be more than their sexual plaything, and when one St Kilda player told her to “fuck off, you slag” and another sent a text urging her to kill herself, she fought back: “This highly competitive teenager had her first inkling of the limitations of her sex – and so she broke the rule that bonds all football players. What happens on the footy trip stays on the footy trip.”

These changes form Krien’s backdrop and she paints it well. She has an excellent chapter on why less than 12% of sexual assaults reported to Australian police lead to convictions, in spite of all the work that campaigners, lawyers and police have done to make sex crimes easier to prosecute, and to “make up for centuries of ill treatment of rape complainants”. Yet “as the public has become more educated about rape, it is widely understood that the low rate of rape convictions is less about whether a rape happened or not than whether it can be proven. So when a defendant walks free from a court, the cloud hanging over him walks out with him.”

Which takes us back to the events in South Melbourne in 2010, and the protagonists of Krien’s story, Sarah Wesley and Justin Dyer.

Wesley’s voice is a great absence in the book. She gave evidence in closed court; Krien did not hear it and anyway cannot report it. As Helen Garner discovered in her books The First Stone and Joe Cinque’s Consolation, the refusal of one side to talk makes the writer’s task terribly hard. Krien frets about balance and how to put Wesley in the picture. “Three times I had tried to contact her – through her lawyers, the police and her Facebook page – each attempt more panicky as I grew closer to Justin and his family.”

Instead, Krien finds photos of Wesley on the internet and wonders about her, a tall, fair, beautiful young woman who was a leader at her girls-only school and got a final-year mark that put her in the top 5% in the state; a university student who celebrated her 21st birthday not long before the awful night in question. Would she have been up for a gangbang? After Wesley got back to her hall of residence on Sunday morning, she saw a friend who would later tell police: “I’d never seen her crying like this.”

Dyer’s barrister called Wesley a liar: in court he used the word over and over. But while he exposed inconsistencies in her story to brutal effect, Krien thinks neither his address nor the whole trial came close to explaining what really happened to her:


If she lied about explicitly telling Justin “No” and that he pushed and dragged her, then I can only say that she chose a lie over what she perceived as her only other option, silence. She had no language to explain the grey zone, to explain what was lost in translation between the sexes.


But Wesley isn’t Krien’s biggest problem. It’s Dyer, with his “quiet and gentle manner”. He and his family have been open with Krien. She hears that his parents had to sell their house to pay his legal fees. Dyer’s mother, Carol, has flown from Queensland to Melbourne to support her son while his father battles cancer. She’s a tough customer, adamant that Wesley is a liar and, in effect, a slut. “She slept with four others that night!” she insists to Krien over coffee.

Dyer seems to have been quite candid with Krien, almost naively so, telling her things that don’t help his case. She finds elements of his account of what happened in the lane plausible, such as his asking of Wesley, “Can you finish me off?” Perhaps it is sympathy for him that leads Krien to suppress his real name in the book, when it is on the public record. But access is dangerous for the reporter as well as for the interview subject, hence Krien’s panic when she can’t get to Wesley. She can’t hear her voice, while she has Dyer’s in her head.

Though Krien knows this view will not sit well with every-one, she finds she can’t paint him as the villain. “Whatever he did that night, he thought it was OK. The herd had said as much.” Yet she is not soft on Dyer. After he had sex with Wesley, he said to her: “You’re not going to tell the police Collingwood raped you, are you?” Krien wonders:


Did he say it because she was upset – and if so, why was she upset? And if she was upset and had obviously had enough, why did he persist in trying to get her to go home with him? Did he think she was a spittoon for one boy after another to come in? ... Why didn’t he see her as fully human?


For all that Dyer and his mates had been through:


I couldn’t say I detected a nuanced understanding of what had happened in the wee hours of the morning after the grand final, let alone any humility … To them, Sarah is a liar, a bitch and a slut. And the disrespect and inhumanity with which they treated her and thought of her is one quality they may find themselves sharing with [a] lone [predator-style] rapist. Malice, after all, can be built on ignorance.


So, “is it rape, or is it treating women like shit?” Krien leaves the question open, but concludes that the courts are not the place where it can be answered. “It’s not where progress is made. It’s just where things end up.”

She thinks it’s time for a braver discussion about the complexities of consent and rape. People are afraid it would “unravel some 40 years of feminist spadework ... But surely feminism isn’t that fragile. And isn’t it obvious that people are already confused? For despite the law being clear on the definition of consent, neither the police nor the public prosecutors seem to have much faith in a jury’s ability to convict in certain cases, even if they do satisfy the legal criteria.”

It’s a pity that the book does not or cannot explain more fully why no charges were laid over the events in the bedroom. Some other descriptions of the legal process are unclear. To glean what she could of Wesley’s version of events, Krien presumably relied on the barristers’ opening addresses at the committal and trial. If so, that should have been set out. She writes that other names aside from Wesley’s and Dyer’s have been changed. Whose names, and why?

These complaints do not take away from the power of Night Games. Krien works to see the case from every angle, to examine every point of view. Anyone who wants to contest her argument is given the evidence with which to do it. She’s responsible as well as gutsy: she knows people’s lives are on the line. Whether the grey zone is as large as she suggests will be hotly debated, but her compelling book helps us all to better understand it, and might even help women – and men – who find themselves inside it.


Read more in Anna Krien's Night Games: Sex, Power and Sport,our June Monthly Book.

James Button

James Button is a former Fairfax journalist and the author of Speechless: A Year in My Father’s Business and Comeback: The Fall and Rise of Geelong.

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