Defending a rapist seems like a fairly morally bankrupt thing to do. The presumption of innocence is a cornerstone of our justice system, but the idea that an individual lawyer would choose to spend a career in such a way still seems unfathomable. Like choosing to defend a war-crime perpetrator, or a tobacco corporation.
At least, that’s how it looks and feels from the outside.
To get the view from within, I spoke to Melbourne-based criminal defence lawyer Anthony Isaacs. He’s represented close to 200 people charged with rape and sexual assault over 39 years. Isaacs met me outside his office to shake my hand, introduced me to his two sons, and gave me coffee—all while offering snippets of horrible cases he’d worked on. Then we sat down to discuss what it’s like to defend multiple people charged with rape.
VICE: Hi Anthony, let’s start with ethics. Do you think you’re doing the right thing?
Anthony Isaacs: Absolutely. There is a perception in the community that being charged with sexual assault means you’re guilty. But it’s proper and necessary that all evidence is tested to see if the charges are proven beyond reasonable doubt. It is fundamental to our criminal justice system.
Where people admit their offending, our job is put lots of background, context, and submit to the Court an appropriate outcome. And often we’re negotiating an outcome that avoids everyone having to go to trial. Many people do not understand that the vast majority of criminal cases proceed as pleas of guilty. I would not be practising law if it wasn’t criminal law. It’s what I am passionate about.
Has there ever been a time where you’ve believed a client has been guilty but it’s still gone to court?
Yes. I don’t have a problem in testing the evidence. If the prosecution cannot prove a case beyond a reasonable doubt, that’s fine, because it means the evidence has not reached the required standard. The criminal justice system is built on testing the evidence. The fact that a person is charged, and whether it’s a strong case, doesn’t matter to me. That client wants me to defend him—that is my job.
So you regularly defend people when you’re pretty sure they’re guilty?
We act on our clients' instructions. We had [a sexual assault case] recently where I thought the evidence [against him] was strong. We informed the client that if [he] pled guilty, [he'd] have an outcome that would be generally lesser than if [he was to fight] it. But against our advice, this guy went to court, and was found guilty. He appealed, and then he was found guilty again.
Do I have a problem in representing those people? No. The system is built on testing the evidence. The fact that he’s been charged, and there’s a strong case, doesn’t matter.
Was there ever a time where you successfully defended a client you believed was guilty?
I remember years ago, I defended a fellow on rape, and the jury acquitted him. As we were walking out, he made a comment that made it clear he had done it. He knew that I was far from happy with him, but things like that don’t play on my mind. We are in a system [where] if it is not proven beyond a reasonable doubt, it is not proven beyond a reasonable doubt. A person found not guilty is not being found innocent.
For the record, I don’t have to like my clients or what they have done. People need to know that we are also part of the community. We are fathers, husbands, sons, mothers, wives, and daughters. We feel the same about things that happen to our community.
Do you often feel sorry for the people prosecuting your clients?
Some of the evidence [I hear] is upsetting. How it affects them is really hard to hear. The worst cases I’ve heard are how it’s physically or mentally ruined their lives, or how its made them become an alcoholic or a drug addict. Hearing someone give evidence about how their life has been ruined is emotional for absolutely everyone.
Has there ever been a time you’ve wanted to stop defending these people?
There are lawyers who do [stop] because it’s too upsetting or emotionally draining, but I haven’t. And I’ve acted for people that have done horrific things. I remember once defending someone who was charged [with a] series of rapes on very elderly women in aged care facilities. He pleaded guilty, but it was still tough. He had lots of issues. I take the view that most people do these things because they’ve got their own issues, and our role as defence lawyers becomes explaining those issues and seeing what the punishment should be.
Do you ever have problems sleeping?
I used to drink when I was under stress, but I haven’t had a drink in three and a half years. You make black humour jokes as well because sometimes you just need to laugh or it’ll get to you. I’ve been out to dinner with friends, and they’ll ask my week has been and I’ll tell them about a client and their jaws drop and I think to myself, what’s so bad about that? You should hear about this client! You become desensitised to how inappropriate the behaviour is.
Do people ever criticise your career choice?
I’ve have people ask me stuff like, "How can you act for criminals?" Other people have called me a dog or asked how I can live with myself. [Some] have accused me of attacking the female in the witness box, and [about non guilty] rulings. I say, "What’s the problem with that? Do you think the person should be guilty? Why is that?"
I remember once having a very robust discussion with a good friend’s good friend. We were all out to dinner, and this man was telling a story about [how] while [he was] on the jury, he [had] convinced the vast majority of jurors that this person was guilty. I asked him, “Are you comfortable doing that if their initial reaction was that they weren’t satisfied?” When I told him what I do, he launched into me and defence lawyers and how we’re all about tricking people and asking questions that can’t be answered and bullying, which is not correct at all.
In what sort of cases is the defendant actually innocent? It seems to me that this is very rarely the case.
On occasion we see cases where both parties have been drinking heavily or using drugs. Later there is regret or perhaps social embarrassment or a lack of recall, or even suggestion from others about what occurred. This can then become a complaint of rape, often one where the complainant claims to have been too intoxicated to give consent.
Lots of the issues I see with sexual assault are cases [where] women are caught out [while cheating] and allege rape. People in the community say that’s rubbish. Why would you go through with that? Well, we’ve got a case at the moment where our client says to us that everything was fine, until the following day where she saw marks and bruises on her neck and breast from what he says was fairly robust lovemaking. She thought to herself, how am I going to tell my boyfriend? So she went to the police and said he raped her. I don’t know what’s right or wrong, but that’s what he says. It’s not for me to judge.
But what if she was raped?
Then we say to her, "Prove beyond a reasonable shadow of doubt, in front of a jury, that you didn’t consent."
But assuming she was raped, that's a pretty cold response.
But what’s the solution, other than a jury trial? How else can you do it? I think the system we have ensures that innocent people don’t go to prison, and that’s fundamental. I’m sure innocent people still get imprisoned with this system, but the best way to protect innocent people is to have a test that ensures that someone is guilty beyond reasonable doubt.
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Interview edited for clarity and length.