One should always take great care in assuming the reliability of statistics or the factual basis of arguments and prejudices promoted by the NSW Police Commissioner, Mick Fuller. But he may have made the argument for fundamental reform of sexual violence and sexual harassment laws in suggesting, defensively this week, that only a small proportion of sexual assaults are reported to police, that of these, only about 10 per cent are developed to the point of charges against the perpetrator, and that of these, only about 10 per cent advance to a conviction.
If 10 per cent of sexual assault victims complain – and the figure may be less than that, the consequence is that the combined efforts of cops, juries and judges punish about one in every thousand offenders. That makes a complete joke of any idea that the “rule of law” prevails to protect women from unwanted sexual assault, and tends to suggest that all of the “reforms” to the laws dealing with sexual assault have been entirely ineffective – indeed a complete waste of time. I do not attribute this result to police incompetence or lack of motivation to deal with the scourge of sexual violence, or to wicked lawyers, legislators or corruption. But one could be pardoned for thinking that if all four of these factors were in play, the Australian justice system could hardly be producing worse results.
When only one in every thousand rapists is punished, it’s time for a fundamentally different system
The complete lack of fitness for purpose of state, territorial and federal laws dealing with sexual violence and harassment provide, by themselves, the foundations for the sense of complete exasperation with politicians expressed by women and men who attended rallies last Monday.
But the fury was very much aggravated by the feeling that many politicians – mostly, but by no means exclusively men – simply do not “get it”, that their response to complaints of sexual assaults and harassment tends to be based on political alliances rather than compassion or a strong sense of justice, and that many of the institutions of the parliament are as focused on completely spurious worries of parliamentary privilege and arse-covering so as to avoid civil liability. There seemed to be evidence in spades of each of these additional matters in the two cases which inspired the rallies.
Yet the record would suggest that even a timely and truly professional investigation of the alleged rape of a woman in the office of the minister for defence in 2019, or the alleged rape of a high school debater in 1988 by the present Attorney-General, Christian Porter, might have been unlikely to produce a conviction, even if the facts were proven to be as alleged. Likewise with any inquiry able to be mounted through civil defamation proceedings – as now being taken by Porter against the ABC – or an inquest into the suicide of the alleged victim in 2019. A coroner’s investigation is a very imperfect instrument for establishing background facts relevant to a suicide – a reason why most coroners dispense with an inquest once satisfied that it was a suicide. The proper object of a coronial inquiry is how a person died, not an alleged chain of falling dominos prior to the death.
If the criminal justice system is an absolutely useless vehicle for investigating, analysing and punishing sexual assault, might it not be better to start again, rather than to tinker at its edges in a way supposed to deal with the disadvantages faced by victims and the prosecution?
There are alternatives. A victim can, for example, sue for damages not through the criminal system but through civil law. There the victim must establish that an assault occurred only on the balance of probabilities, and issues of consent, while still there, are (or should be) determined by objective rather than subjective standards. Damages can be high, and not only for the immediate costs, or the immediate pain and suffering occasioned. In Canada, where civil actions for sexual assault are more common than here, a victim can launch both a criminal and a civil case, the former being tried first, of course. Failing to have the person convicted because of the high criminal standard of proof does not provide any disadvantage in pursuing the civil case, where the standard is whether it was more likely than not that the assault occurred.
The civil system may have another advantage likely to bolster the protection of potential victims. One need not sue only the alleged perpetrator, but anyone whose actions or omissions might be said to have potentiated the assault, or even an institution (parliament, a bank or a school, for example) that has failed to establish systems which would render such assaults less likely. It can also more easily incorporate readily justifiable assumptions – for example about the fundamental impropriety of sexual contact between teachers and students, bosses over employees, or the general principle that where a victim is drunk or incapacitated by drugs, a lack of consent is assumed. In many cases, the perpetrator will have no resources, and a successful victim may not be able to claim damages from the person who committed the assault.
But people who stood by with some guilty knowledge of what occurred, people who have organised some social function at which people became insensible, or (as happened in the ACT recently, with a university residential college) an institution which failed to take efforts to protect vulnerable students at a sanctioned function may be held liable.
It has been often the fear of liability in such cases which has made banks, businesses, universities, schools, and social clubs pro-active in creating more protective environments, in organising supervision to protect potential victims, and in providing punishments (such as the sack from a job, military discipline in the defence force, expulsions from a university), which discourage potential perpetrators. One must, of course, prove that there is a relationship between the institution’s functions and the wrong committed; but if American and Canadian cases are any guide, courts considering whether this connection is strong enough will generally consider, from a public policy point of view, whether society’s need to have a fair and just remedy and deterrence of future harm, is helped by imposing vicarious liability in a particular case.
If a ministerial staffer in parliament were sexually assaulted on the job, it will usually be the taxpayer, through the Department of Finance, the ultimate “employer” under the Members of Parliament Staff (or MOPS) Act which would probably be paying most of the damages. That ought to make it more proactive in promoting a safe working environment. But there is no reason why the victim, in that case, could not also sue the minister, as the person ultimately responsible for the way that the office operated, and the minister’s chief of staff, the effective manager of the office. In Australia, such folk would quickly hand over their legal defence to Commonwealth instrumentalities –claiming that they were indemnified because the liability had arisen out of their official functions. In the United States, a Senator or a Congressional representative would be expected to personally meet any liability otherwise falling on state agencies.
Under the Congressional Accountability Reform Act of 2018, the protections are extended to include applicants for employment, former employees, and unpaid people such as interns, fellows, or individuals detailed to an employing office, say as agency liaison staff. The Act has a strong (and developing) presumption against nondisclosure and non-disparagement clauses – something which would (unjustifiably) cause consternation if it were to be copied in Australia.
The American system includes an office of workplace rights for congressional staffers and establishes its independence from the legislature (and the executive). It has “confidential advisers” who can advise staff, and help them prepare complaints. It also has hearing officers, whom the executive director can appoint from a master list of retired judges and lawyers. The Commonwealth Parliament could follow this general model – of an office independent of politicians – but would be better advised to have a master list of investigators – people like Vivienne Thom, say, operating on the inquisitorial system rather than an umpire in an adversarial process.
It would take a good deal more than such modest proposals to change the disadvantage that victims – mostly women – suffer from sexual assault and harassment, even in the federal parliament. But it would be an advance, if only because it is something substituting for Mick Fuller’s nothing. His additional suggestion of a “consent machine” is so loopy – even from him – that it should escape comment. Other than a suggestion that he should devote some belated attention instead to a recommendation from the Royal Commission into institutional child abuse about the prosecution of a friend and co-religionist, whatever another friend and co-religionist, Scott Morrison, might feel.
John Waterford AM, better known as Jack Waterford, is an Australian journalist and commentator.
Comments
22 responses to “Sexual violence makes a farce of the rule of law”
Now that Morrison has apologised for having basically invented a quick Houdini-like escape answer, a fake “shock claim about the harassment of a News Corp journalist in a women’s toilet”, is he going to now answer the question that the journalist actually asked?
The question was “If you were the boss of a business and there’d been an alleged rape on your watch … your job would probably be in a bit of jeopardy, wouldn’t it? Doesn’t it look like you have lost control of your ministerial staff?”
Let’s just see if there is a journalist in the land strong enough to ask the same question again.
Mr Wendell: exactly. Lost control of the staff, and not in some dingy nightclub, but in a high security office in PH.
The allegation of rape, being of a gravely serious crime, suggests a filthy iceberg of lesser wrongs and lack of decency and respect in the central place of democracy. Perhaps the particular allegation was unknown to – witheld from – some, but it would be a bit harder to not notice the icesheet from which it emanated. A casual stroll through the public sections of the joint should set off alarms about it as a workplace. Don’t journos go there? Regards
Mr Wendell: sorry I forgot to add something that might shed some light on the PH issue.
In 2018 there were around 450 Ministerial staffers, around 50 in the Prime Ministers Office.
Add to that Opposition staffers, and staff of MPs.
Appointed on what criteria other than a Minister likes?
I dont know age /experience profile but my guess is it might be youngish.
All are under grossly defective governance arrangements (see Prof Podger’s 2 March post).
It would be a wonder if this did not give rise to instances of very serious interpersonal problems, not soluble by the inquiries envisaged. Exhibit n: UNSW research re NRL ‘education program’ for improved sex/respect attitudes, 2010.
Best wishes
All acts of violence need to be fully investigated and a ‘he said she said’ principle can easily be negated by the sensible, but exceptional, doctrine of similar facts.
Has no one ever heard of this? Instead of the overriding presumption of innocence it can be rebutted by previous accusations where the various victims’ testimony is heard in one action. All assaults and acts of cruelty could be combined to find someone guilty of viciousness.
Strangely, regular meals sleep and companionship in prison usually means less inter prisoner violence. Diet is crucial and that comes fromparenting and education. But where would be the profit in that?
Just thinking out loud as I really have no idea, but I wonder if the family of the deceased alleged victim could sue the Attorney General for their loss, alleging he was the major contributor to her mental health issues and subsequent suicide. If the ABC has to prove the “truth” of the allegation in defending the defamation suit (although most legal pundits are suggesting that won’t take that approach), would he have to prove the “truth” of his denial in a civil case against him? If such an action were possible, there’s a fair chance a ‘go fund me’ page to cover the family’s cost would attract a lot of support.
It all boils down to proof. Sadly, we generally value the dead for their economic loss: dependants alone can sue, no one else, except perhaps ‘Pater Familias’, the state, if the issue is big enough to disturb the doughnut eaters and their serried ranks of superiors.
3 March: Powerful bloke keens with self-pity over woman’s accusation. 15 March: Same bloke bounces back to launch exquisitely tactical defamation suit against woman journalist.
Welcome to Straya, years behind some European nations, in terms of sexual equality. And, under paterfamilias Morrison, digging right in. Can’t wait for his “Women’s Summit”.
Parliament Security Guard interviewed by 4 Corners said Higgins was completely naked, yet other accounts were of being still clothed albeit partially. Channel 10 reported that male prostitutes were brought into Parliament, by whom and for whom?
I have my own suspicions of Commissioner Fuller. These are based on ‘growing up’ with NSW police criminality from the seventies. Corruption in any form is a continuum – it is established and even illegally codified. Favours, a ‘drink’, or even a ‘big drink’ ($10,000). The old joke, ‘..even police horses would look the other way for an apple’. I once worked with an ex NSW policeman who told me on his first shift as a probationer he was taken by his Sergeant to a city park to ‘roll’ drunks. The rationale as explained was that the drunks were going to lose their money anyway. These are not new allegations – read any paper going back to the early 1900’s. Did the NSW Police own NSW Parliament? Special Branch certainly appeared to own the High Court and magistrates. Any suggestion that the police ‘fixed’ evidence automatically added to a sentence.
I would like to ask Mick Fuller if he had hoped to financially gain from a ‘assault/don’t assault’ app.? Is this why he staked his name to such an app. on national television? Perhaps, the ‘Fuller’ app.?
Corruption becomes entrenched when the apple at the top of the barrel infects those lower down. Hierarchy is the enemy to rectitude
I’m not sure of that. My life examples show there are well meaning buffoon type leaders who have no idea what is happening beneath them. They are more interested in getting the job done. Bjelke-Pederson is an example. He led and fostered a totally corrupt government – yet appeared not to personally profit from the illegalities.
My feeling on the Porter rape allegations is that powerful people who had an eye on the future sought to gain control of an Attorney-General for their own politically corrupt ends. Read the case from beginning to end,
It all went pear-shaped when the media investigations followed up on the ‘letter’.
Morrison is a buffoon who wants only to remain in power. As a religious person he has a higher calling to adhere to. Mere day to day politicking with the masses (the mob as he calls it) is beneath his calling.
Morrison’s religious mania is about the end of the world – the rapture – corruption is then totally ok if it brings about the prophecy. Morrison believes he is instrumental to (his) god’s will – he fervently believes this and will do whatever it takes to remain in power. He can lie and cheat and reward corruption as, in the end, god will absolve him. For this reason he is unable to understand compassion. He uses his wife and children and widowed mother as compassion ‘cues’. During the bushfires when he commiserated with the victims some went off script by not accepting his ‘compassionate’ handshake. The compassion script said ‘shake hands’ and so he did. Looked great, didn’t it?
You have him to a tee, but you neglect the organization behind him: Hillsong! A MLM gang
That money that went missing from the tourism Board?
I was more referring to the Police Forces, especially the AFP. Hierarchy develops petty corruptions that invite promotion: ‘I can destroy you, so you clean up after me!’
Opportunistic politicians are not usually part of such an hierarchy?
What a disappointing departure from Jack Waterford’s usually excellent analysis of issues. The current criminal processes for dealing with sexual violence are not just entirely ineffective, there is considerable evidence they are harmful to victims. But suggesting victims of sexual violence might use civil proceedings to pursue perpetrators and any associated entities is hardly a solution. It might work for some, but for the vast majority I think the suggestion is so unrealistic as to be laughable. How many people have the resources to fund action in the courts? How many would be willing to risk also bearing the other side’s costs should they lose? And dragging any third parties into the action (e.g. corporate or government entities that might have failed in their a duty of care) will multiply the costs because those entities will have the resources to fight.
Rape by those in superior positions would cease if the losses were significant.
Strangers who rape are thankfully rare, but galvanize a response by police that shows that the legal system can be effective!
Sadly, the police are lazy and not supported by an efficient system that is over formalized by males of a certain class.
There is considerable evidence of bias against women, who are not the only victims of rape, by juries. Australians love a witch trial? The preferral of murder charges instead of manslaughter wastes a lot of court time. True murder does not happen unless it is actually premeditated. Spousal abuse in the heat of the moment, or after years of abuse, does not merit a murder charge? But then look at the loss of all that theatre and the media love to remind everyone of the authority of the state…. there are many complicit in the Injustice system!
Mr Waterford: the unexamined big ‘ifs’ put this below your normal high standard.
But onto the Department of Finance – if it is the ’employer’ it should be responsible for individuals in, and the general environment ‘culture’ of Parliament House, not only under employment law but as effective occupier.
It is not and should not be responsible for (serious) criminal behaviour of individuals> Yet engagement in such criminality should be seen as grounds for the Department for dismissal in addition to any criminal sanction.
Hence the Department should be able to discipline and dismiss ’employees’. It should be able to refuse to hire employees.
If it is not able to do so it is not an employer.
Rather, it is just called an ’employer’ in defective, deceitful legislation. That diverts public gaze from whoever has the power – and therefore responsibility – to deal with the matters. And that is the core of the problem.
In that case, we can disregard the Department and seek to find the individuals who are responsible for ‘culture’.
Prior to having the legislation cleaned up and the deceit and cover-up of responsibility removed.
Regards
The danger of using civil proceedings is that it allows the argument that complainants are only after money.
Such an argument has no place in court, unless the accusation be untrue. It would also increase damages if it failed!
Does not the State also have a duty to the safety of the incarcerated within Australia’s prisons. The extent of violence within this institution warrants consideration also.
Too much money is made in the Justice system, for it to deliver Justice?