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  • Writer's pictureJarrod Carter

Character References: The Unseen Factor in Criminal Sentencing

The recent incident involving Hollywood celebrities Ashton Kutcher and Mila Kunis writing character references for their friend, actor Danny Masterson, who was later convicted and sentenced for rape, serves as a potent illustration of the complex and sometimes contentious role that character references can play in the criminal sentencing process. The couple's intentions to support someone they have known for years inadvertently led to severe public backlash, putting a spotlight on the ethical and legal complexities surrounding the submission of character references during sentencing. This unexpected episode raises various questions about the power and limitations of character references, not just in high-profile cases but also in day-to-day criminal proceedings.

Character references are a common practice in criminal sentencing, but their influence and the rules governing them are often not well understood by the public. These letters offer courts a broader look at the accused, one that transcends the specific crime or crimes they have been convicted of. This is not to say that the crime is overshadowed; rather, the totality of the individual's character is brought into focus. Yet, when the crime in question is as serious and emotionally charged as sexual assault, the decision to provide a character reference can be fraught with ethical dilemmas, as demonstrated by the backlash Kutcher and Kunis faced. Given that character references can potentially influence a judge's decision in meting out a sentence, understanding their role, purpose, and proper use is crucial for all involved.

Within the context of Western Australia, character references are often given significant consideration, especially in cases where the character of the accused could substantially influence the severity of the sentencing. It's a practice that aligns with legal systems globally. However, it is far from a straightforward process. This article aims to provide a comprehensive understanding of how character references function within the criminal justice system in Western Australia. We'll explore why they are submitted in the first place and what specific purposes they serve. We will also look at who can provide these references and the weight that different types of references carry.

In light of the controversy surrounding the character references provided by Ashton Kutcher and Mila Kunis, it's clear that this is an area fraught with both legal and ethical complexities. While the intent may be to vouch for the 'person they've known for 25 years,' as Kutcher put it, the implications can be far-reaching, affecting public opinion, legal outcomes, and the lives of victims. Hence, understanding the role of character references in criminal sentencing is not just a legal necessity but also a societal responsibility.

The Purpose of Character References

Character references play an indispensable role in criminal sentencing by serving several distinct but interrelated purposes. Firstly, they allow the court to view the individual involved as a whole person rather than solely through the lens of their criminal conduct. While legal proceedings necessarily focus on the facts surrounding the offense, a character reference can bring to light the broader contours of an individual's life. This may include their contributions to the community, their work history, and their relationships with friends and family, among other factors. In essence, these references serve to humanize the offender, extending the court's understanding beyond the black-and-white circumstances of the crime.

Another essential purpose of a character reference is to influence the court's perception in a manner that might impact the severity of the sentence. The legal system isn't solely punitive; it also aims for the rehabilitation of the offender. A compelling character reference can indicate the defendant's potential for reform, thereby inclining the court toward a more lenient or rehabilitative sentence. For example, if a character reference convincingly attests to the individual's remorse and concrete steps taken towards amending their behavior—be it through counselling, community service, or other forms of restitution—it can serve as a powerful argument for a reduced sentence or an alternative to incarceration.

The character reference also plays a pivotal role in shaping the narrative. Legal proceedings often bring forth a certain narrative about the accused, one that's constructed through the nature of the charges, the prosecutor's arguments, and the evidence presented. A well-articulated character reference can introduce a counter-narrative that challenges or complements this view. It can highlight aspects of the offender's life that are inconsistent with the type of behavior for which they're being sentenced, thereby encouraging the court to consider these contradictions when making its final judgment.

It's worth noting that the influence of a character reference isn't merely abstract; it has concrete ramifications. In many instances, these references have led to reduced fines, probationary sentences instead of jail time, or even suspended sentences that hinge on the offender meeting certain conditions. The court may also consider the ripple effect of the sentence on the offender's dependents, an aspect often brought to light through a compelling character reference. For instance, if the accused is a primary caregiver, the hardship that a severe sentence would impose on their family can be considered a mitigating factor, swaying the court towards a more balanced form of justice.

Who Can Provide a Character Reference

The individuals who can act as referees for a character reference is quite extensive, but not all references carry the same weight in a court's eyes. The range can vary from close family members and friends to more 'official' relations like employers, teachers, or community leaders. Each type of referee brings unique perspectives and thus different advantages and drawbacks in how their references may be perceived by the court.

Family members and close friends, for example, can offer deeply personal insights into the offender's life, character, and potential for reform. They can speak to long-term behaviors, attitudes, and even express remorse or steps the individual has taken toward making amends. However, the court may approach these references with a certain degree of skepticism, considering the emotional ties that could potentially cloud objective judgment.

On the other hand, employers and teachers can provide a more detached and performance-oriented perspective. An employer could discuss the individual's work ethic, punctuality, and positive interactions with colleagues, portraying a level of social responsibility and commitment that may be favorable in the eyes of the court. Similarly, a teacher could speak about the individual's behavior in a learning environment, their respect for authority, and even academic achievements that show promise for a productive future. These references often carry weight due to their less emotionally charged, more objective nature, but they may lack the intimate understanding that a close family member or friend could provide.

Community leaders or public figures like local councilors, religious leaders, or even police officers who have had positive interactions with the offender can also provide impactful character references. These carry considerable weight because they come from individuals who are often held in high esteem and are assumed to have a broader perspective on community norms and behavior. Their word can significantly tip the scale in favor of the accused, providing a strong testament to their character and role in the community. However, these references need to be genuine and detailed, as a generic letter from a well-known figure could be dismissed as superficial or even counterproductive.

Then there's the question of how the relationship itself impacts the court's judgment. The duration and context of the relationship can either bolster or weaken the reference's influence. A long-standing relationship is often seen as more reliable because it suggests a deep and sustained understanding of the individual's character. In contrast, a new or casual acquaintance might not be as convincing.

Selecting the right referees can offer a multidimensional view of the offender, making it easier for the court to pass a judgment that's not just legally rigorous but also nuanced in its understanding of the individual involved.

Tailoring the Character Reference to Specific Offences

A well-crafted character reference can significantly impact an offender's sentencing, but its effectiveness largely depends on how closely it aligns with the specifics of the offense committed. Whether the charge is related to assault, drug use, driving, or dishonesty, the reference should be tailored to address traits and behaviors directly relevant to that particular type of offense.

For instance, if the person has been charged with assault, the character reference should focus on the offender's general disposition towards violence or lack thereof. A referee might recount incidents that highlight the individual's peaceful nature, conflict-resolution skills, or aversion to violence. If the offense was an isolated incident, explaining this context could be particularly helpful. The point is to convince the court that the assault was an aberration rather than a pattern of behavior.

In cases involving drug charges, the character reference could underscore the offender's efforts toward rehabilitation. Whether it's participation in a drug treatment program or proof of attending Narcotics Anonymous meetings, concrete steps towards betterment are usually viewed favorably. An employer or teacher could discuss how the offense was a one-time lapse or how it hasn't impacted the individual's responsibility and commitment to work or school.

Driving offenses, especially those involving alcohol like DUIs, require a different approach. A reference in this case should spell out the gravity of consequences, not just for the offender but also for people dependent on them. For example, a spouse could explain how losing a driving license would directly affect their children’s ability to attend school or engage in extracurricular activities. The reference might also discuss the individual’s newfound responsibility towards drinking and driving, perhaps by mentioning their enrollment in educational programs focused on the dangers of drunk driving.

For dishonesty charges, such as fraud or theft, the character reference should aim to contextualize the action without excusing it. If financial hardship was a motivator, that might be something to include, as could any attempts the offender has made to make reparations. Employers could talk about the individual’s otherwise good conduct at work, punctuality, and honesty in other areas of life, helping to paint the offense as inconsistent with their general character.

The key in all these scenarios is specificity. A character reference that addresses the particular nature of the offense committed and how it contrasts with the individual's usual behavior is most likely to sway the court. The traits discussed should be directly relevant to the offense in question, thereby offering the court a nuanced understanding that goes beyond the mere facts of the case, potentially influencing the severity of the sentence.

What Not to Include and Formalities

While character references can be powerful tools in the sentencing process, there are certain things that must absolutely be avoided in crafting these letters. First and foremost, never include false or misleading information. Doing so not only discredits the reference but could also lead to legal repercussions. Secondly, the reference should not attempt to make excuses for the offender's behavior or blame the victim. Such attempts don't reflect well on the defendant and are likely to antagonize the court. Additionally, the character reference should refrain from criticizing the law, police, prosecutors, or the judicial process. Any such criticisms are unlikely to serve the defendant well and could irritate those who are in a position to decide their fate.

Moving on to formalities, it's crucial to adhere to a certain presentation style to ensure the letter is given the attention it deserves. The reference should be addressed to the "Presiding Magistrate" if the case is in a Magistrates Court, or "Presiding Judge" for District or Supreme Courts. Starting the reference with "Your Honour" is customary. Also, the letter must be signed and dated by the person providing the reference. If possible, using a professional letterhead can lend additional credibility to the document. Legal professionals often recommend providing the original letter to the magistrate or judge after copies have been made for records.

In terms of length, it's generally advised that a character reference should not exceed two pages. A concise yet thorough letter is more likely to be read carefully. While there are no strict rules on the number of references that can be provided, one to three high-quality letters are usually sufficient and more effective than a larger number of less insightful ones. Lastly, if the reference contains any serious claims that could be challenged, the referee should be prepared to give evidence in court, particularly if the case is being heard in District or Supreme Court.

By being mindful of what not to include and paying careful attention to formalities, a character reference can serve as a potent instrument in portraying the defendant in a more comprehensive light, beyond the scope of the offense committed.


The practice of submitting character references during the sentencing phase of criminal trials is a common one, holding significance in the judicial systems of many jurisdictions, including Western Australia. However, it's crucial to highlight some inherent limitations and concerns about the nature of these references. Unlike sworn testimony or evidence presented in court, character references are not subject to the same rigorous verification processes. They are not made under oath, nor do they undergo a statutory declaration. Moreover, the court generally does not independently verify the authorship of these letters, leaving room for potential discrepancies or even fabrications.

This lack of scrutiny becomes particularly noteworthy when you consider that these letters can influence the court's perception of the accused, possibly even affecting the severity of the sentence. The situation becomes even more complex when character references intersect with considerations of spent convictions, which are convictions that are legally considered to no longer reflect adversely on one's character after a specific period has passed.

These concerns cast a spotlight on an interesting paradox. On one hand, the judicial system recognizes the importance of considering an individual's character as a multi-faceted entity beyond the crime committed. On the other hand, the system is willing to allow this consideration based on a document that is easily falsifiable and not subjected to legal scrutiny. This points to an area of the legal process that perhaps needs reevaluation or reform. It also raises questions about the ethical responsibilities of those who write and submit these references, emphasizing the need for both integrity and transparency in the process.

Given these complexities and potential pitfalls, understanding the role and limitations of character references is not merely a legal formality, but a matter of ethical and societal import. Whether you are a legal practitioner, someone who may be asked to write a reference, or a member of the wider community, this understanding is critical. The case involving Ashton Kutcher and Mila Kunis writing references for Danny Masterson has certainly shown us that the consequences of not fully understanding this can be far-reaching, affecting public sentiment and raising questions about the fairness and integrity of our judicial system. Therefore, while character references will likely continue to be a part of sentencing considerations, their use warrants a more cautious and informed approach by all parties involved.

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