In the district court of Wagga Wagga last Friday, Rian Ross Toyer, 33, was sentenced for the manslaughter of Mhelody Bruno, 25. At the time of her death in 2019, the killing of Bruno did not spark significant media interest, nor did women march collectively across the country to demand justice.
Toyer was sentenced to an intensive correction order (ICO) rather than jail time, a sentencing outcome that is in contravention of the New South Wales Sentencing Act (s67 1(A)) and one that has been described by advocates as a “slap on the wrist”. The act provides that an ICO must not be used in cases that pertain to specific offences, including murder and manslaughter. The case is scheduled for resentencing on Monday.
The concerns with this case, however, run deeper than the sentencing outcome imposed. The handling of this case and the (lack of) public response to Bruno’s death reveal deep concerns about the breadth of injustice that women in Australia experience and the continued privilege of white men’s stories.
The full judgment of the original sentence has been restricted. However, the remarks of Justice Gordon Lerve and some case details have been publicly reported elsewhere. Bruno died as a result of asphyxiation. Toyer claimed that he and Bruno had been in a relationship for three weeks and that she had initiated the use of erotic asphyxia the first time they had sex. The evening before she died in hospital under an enforced coma, Toyer claimed that they had a non-verbal agreement about using this practice and that Bruno would “tap on the offender’s arm” to stop, which “tragically … did not work on this occasion”.
Given the evidence put forward to support Toyer’s claim is not in the public realm, we do not yet know whether there was substantive evidence that supported his account of their relationship, including their sexual relationship. In the absence of full details, the case sets a precedent where an uncontested account of consent can be accepted in defence of an act of femicide. The account is uncontested by default – a victim of homicide cannot speak. As Prof Jenny Morgan wrote over 20 years ago now: “Dead women tell no tale, tales are told about them.”
It is important to be clear, first, that no sexual relationship is a carte blanche for men’s violence. At a time when national debate is focused squarely on the issue of sexual consent, we must ensure that how consent applies across different relationships is considered carefully.
Second, we draw attention to a key concern arising from this case: the precedent of claims of consent within a “rough sex defence”, as it has come to be referred to. This defence has attracted heavy critique in some countries in recent years. Critics have argued that where successfully used to reduce what would otherwise be murder to manslaughter, the defence implies the victim “asked for it” and privileges the incontestable account of violence provided by the accused. Homicide cases invoking this defence have emerged in Australia in recent years and elsewhere, including in Canada, the United States and the United Kingdom.
In England and Wales there are now moves to ensure the criminal law expressly excludes the use of a partial defence to murder for this purpose.
The rough sex defence mirrors many of the well-documented concerns associated with the outdated and gender-biased operation of the partial defence of provocation, which was invoked in cases where, for example, a man had suspected his wife had been unfaithful before killing her. While the male perpetrators often emerged from these cases with their “good characters” intact, one would be forgiven for thinking it was indeed the deceased female victims who had been on trial.
The successful use of the rough sex defence undermines previous efforts by Australian state and territories governments to introduce homicide law reforms to improve court responses to men’s use of lethal violence against women. Cases such as Toyer’s suggest there is unfinished business in our courts. Further reform may be required to ensure words alone cannot be used to partially excuse the use of lethal violence in the context of a sexual relationship. This could be achieved through legislative amendment adopting an exclusionary approach.
In accepting Toyer’s version of events, the judge determined at sentencing that Toyer was a man of “good character”, was unlikely to reoffend and posed no risk to the wider community. He took into account the adverse impact on Toyer of losing his job at the RAAF. These factors were reported as informing the judge’s decision to impose the original non-custodial sentence.
There is a third concern that emerges in this case relating to the relative media silence at the time of Bruno’s death and again last week following the sentencing of Toyer. We acknowledge there was some media coverage, but it was minimal. Bruno was a Filipino transgender woman living in Griffith. She was loved and is missed by her friends and family, who were shocked at her death. The media silence is arguably reflective of a wider silence about those in the margins who experience gendered and racialised violence. This violence is pervasive and its impacts are significant, but these are not the cases of men’s violence that we readily hear about and all too often they are not the communities that are afforded opportunities to have a voice in demanding change.
While access to the court transcript or full judgement is not available, and cannot know what was put forward, we are concerned to ensure that some women are not viewed as potentially likely to consent to sexual acts. We urge consideration be given to reforms that limit evidence that can discredit the deceased victim and/or allows presumptions to be made around sexual consent based on character or other evidence that may result in victim-blaming. Victoria has made some reforms in this area, but there is a need for further review of legislative responses and an effort to achieve consistency across Australian states and territories.
In a press conference earlier this week, the prime minister fought back tears as he affirmed his commitment to women having “at least the same opportunities and the same voice and the same safety as men in this country”.
Is Bruno on the mind of our PM when he thinks about women’s experiences of men’s violence in this country? We know that race, class and gender are an integral part of systemic violence that substantially impact access to justice. It impacts victims and accused persons alike. We need to ensure we are not privileging the experiences of white women by only exposing the violence and the miscarriages of justice that impact them. The time for men’s accountability is now and it must occur in all our institutions.
• Associate Prof Kate Fitz-Gibbon is director of the Monash Gender and Family Violence Prevention Centre. Associate Prof Marie Segrave is a key researcher in the Monash Gender and Family Violence Prevention Centre
