The mindset that says that all persons who make claims of sexual abuse are to be believed and therefore they are “survivors” or “victims” is problematic to say the least.
The appalling mishandling by the Morrison Government of the serious complaint made by a former staffer, Brittany Higgins, that she was raped by a colleague in the parliamentary office of the Defence Minister has ensured sustained media interest in this matter for some time.
If there is an investigation by police and charges laid against the alleged perpetrator, who is said to have sought inpatient psychiatric care this week, then issues around ensuring that he receives a fair trial are of prime importance.
This in part means that while not disrespecting Ms Higgins, we must acknowledge that her allegations are just that, and we have not heard if there is an alternative narrative consistent with innocence on the part of the alleged perpetrator.
When one raises these matters there is a tendency on the part of some to say that as there are no charges we can say what we like and Ms Higgins and her supporters are free to pursue a media strategy. “Let’s not get legalistic” is a shorthand form of this type of attitude and reasoning. This is often coupled with a mindset which says that all persons who make claims of sexual abuse are to be believed and therefore they are “survivors” or “victims”.
These stances and attitudes are problematic to say the least. The mantra of the #MeToo movement that women must be believed when they make allegations of sexual abuse, which Opposition Leader Anthony Albanese appeared to reflect with his statement this week “I believe Brittany Higgins,” needs to be challenged.
Helen Lewis, writing in The Atlantic in May last year rightly observed that :“Believe women” has evolved into “Believe all women” or “Automatically believe women”. This absolutism is wrong, unhelpful and impossible to defend. The slogan should have been “Don’t dismiss women”; “Give women a fair hearing”; or even “Due process is great”.
As Lewis points out we should, however, believe them when thousands of women tell us that there is a problem with sexual aggression in our society. It’s just individual allegations and claims have to be judged on their merits. So let’s make sure we do that in how we frame Brittany Higgins’ case.
Stepping back from passing judgment, or forming a hard and fast view as to the veracity of events, is important because fair trials matter. The media and the community generally via social media outlets, have a responsibility to ensure that if there is to be a trial by jury in this case, the risk of contamination and influence on potential jurors is reduced as much as possible.
Saturation media that is hostile to an accused and uncritically believing of the accuser heightens the risk that it is virtually impossible for there to be citizens who have not formed a view, even subconsciously, about the case before hearing any evidence. The case of Cardinal George Pell is a salutary lesson in this respect. While we will never know what influence the relentless hostile media towards Pell in the lead-up to his trials had, a commonly held view among experienced lawyers is that if his trial had been judge alone he would have been acquitted, and not had to fight all the way to the High Court.
If, after Ms Higgins provides police with a statement and an investigation ensues, charges are laid against the person she accuses of raping her in 2019 then no doubt his name will become known to the media and the community generally. The alleged perpetrator has already been painted, by virtue of Ms Higgins’ account, as a monstrous individual and rapist. He has also been described as a powerful male who has “got away with it”. In other words, in the minds of many in the media and the community, he is not an accused person but a stereotype of the privileged male sexual predator.
Such a description and image may be accurate or it may be grossly unfair and simply wrong. We do not know because we have not heard or read any version of events that happened in that ministerial office in the early hours of a Saturday, other than the detailed particulars provided by Ms Higgins in media interviews. We should suspend judgment because the individual is not charged with any offence at this point and if he is, he is of course entitled to that bedrock principle of the rule of law, the presumption of innocence. Again, we must all ensure there is great caution in reporting about this person.
Ms Higgins has been described as brave by many. She is because she has rightly lifted the lid on the callous and ham-fisted dealing with a serious allegation of sexual assault. But once she goes to the police, which she intends to do, the criminal justice process must be allowed to take its course. Trial by media, campaigns for and against Ms Higgins and the alleged perpetrator on Facebook, Twitter and other fora, and public commentary by influential voices such as politicians, should cease when this occurs. If it does not, then a fair trial is placed in jeopardy.
Greg Barns SC is National Criminal Justice Spokesman for the Australian Lawyers Alliance
Comments
13 responses to “Trial by media, politicians or social media does not serve justice”
Greg Barnes with respect is confused. There are two aspects to the allegation. The alleged rape occurred in the workplace. Which shockingly happens to be the Australian Parliament. Parliamentary staff are employed by the Speaker. Ministerial staff are employed by Ministers directly with their employment ultimately by the Prime Minister. Is Greg Barnes seriously suggesting that employers dont dismiss employees before criminal trials. If the alleged perpetrator was still employed by the Prime Minister is Greg Barnes seriously asserting that he could not be dismissed because it may influence a jury. If he is that is a nonsense.
The premise of your argument is fair, but I would say that under the current circumstances with three women coming forward, Scott’s usual “I know nothing” being totally unbelievable, the media’s running to assist his cover-up today, and the culture that has long appeared absolutely sexist on the part of this government and within parliament house, it is the wrong time to be bringing up this issue if it is aligned with the current event.
The alleged rapist has not come forward either from the beginning to expand on his view of the story. It could even have been done in secrecy as media often does, but we have seen nothing. Is there some form of protection going on as well given the person that it may be?
All I can say is that there is an improvement in how it is discussed, because many years ago when men had even more dominance over women – if this happened to a woman who was inebriated – it would have been said by more than a few that “she deserved it because she was drunk”.
I think the Me Too movement is generally quite valid, but it is the media once again that picks its sensational stories revolving around such matters that makes it often a tool for destroying some innocent men’s lives.
George, Morrison as Prime Ministter is legally the employer of the alleged victim and alleged rapist, not the Minister. Would anyone accept a CEO saying because he didnt know then he didnt have responsibility moral and legal as an employer for the rape occurring? Where is the party of workers rights pointing this out? Where is the Invisible Man?
I can’t agree more
Here’s the prime minister, a bit tabloid but pretty true:
https://thebugonlinecomau.files.wordpress.com/2020/01/smoko-as-sgt-schultz-net.jpg?w=1024
He doesn’t know anything. About as credible telling us pigs can fly.
While the Morrison government continues to indulge in its never ending marketing campaign, led by Scotty from marketing, of which the Brittany Higgins sexual assault is just another item to view in a diminished light, and move on, and further inspired by fear, the shonky product that is the Morrison Liberal Coalition government will continue to be preferred over the alternative, a progressive Labor government that actually brought progress and pride to Australia a decade ago, and is poised to do so again.
Three alleged victims of this gent have now come forward. In this case, independent footage may well tell the story. Regardless, more than a few will “blame” Higgins herself, because she wasn’t sober.
Sadly, Morrison’s popularity appears to have been boosted, by his reeking hypocrisy of “Jenny N The Girls”. Instead of enabling him, these handmaids should push back, as the Abbott “girls” did eventually.
But the problem, Greg, is that it is abundantly clear that the existing legal and administrative processes do not serve justice either. We all know the figures. The vast majority of sexual abuse goes unreported; that which is reported is often dismissed; that which is investigated usually doesn’t get as far as a formal process; and formal processes are adversarial and based fundamentally on legalistic presumption of innocence.
Victims are usually women. Perpetrators are overwhelmingly men.
There is a case to be made that a radical change is required in our approach to claims of sexual assault, with believing the complainant as the fundamental basis of our societal and legal response. Lawyers will scoff, but we might need to accept a few wrongful convictions in order to achieve a huge improvement in overall justice.
“a few wrongful convictions” is not compatible with “a huge improvement in overall justice”.
I wonder if any women would like to comment?
I wonder if any women are suspicious that the alleged rapist is also a serial expert in date rape drugs, so the drunk woman arguments may be well off the mark….seems that way to me on details revealed so far.
Mr Barnes: thought provoking.
up to ‘legalistic presumption of innocence’.
in my view it is not legalistic. it is a corollary of the assumption that crimes are not normal.
the concern with the ‘few wrongful convictions’ should be at an all time high because laws creating crimes now are far wider than say since the 1950s.
and in Australia people are allowed to be locked up in anticipation of them committing certain crimes e.g. terrorism. then there are secret trials etc.
the nature of these often relies on ‘he said/she said’.
and to garner support for subduing the ‘threat’ certain groups have been demonised because of what they are/look like rather than what they have done – people ‘of middle eastern appearance’ to give an example from where i live.
i think terrorism (Commonwealth) now is defined to include threats to individuals, rather than systems of government – and that makes the range of ‘suspects’ enormously wide.
add to that the new range of ’emergencies’ being what a Prime Minister (undefined) likes, and what action can be taken – being again what that Prime Minister likes – which can include declaring certain actions, or suspicions of actions to be crimes, or to have people locked up in anticipation…..
sexual assault? i do not believe a presumption of guilt could be limited to there.
so: no.
Happy to be corrected.
Best wishes.
Thanks Petal. I am of course being provocative. And I share your concern re over-reach by the state in creating terrorism-related offences.
BUT when it comes to sexual assault, we do have a problem with the presumption of innocence (and many other factors) conspiring to result in huge numbers of victims not getting justice, and huge numbers of perpetrators going unpunished. I do think the legal system could have a radically changed approach to these crimes, without it affecting the system for other crimes.
Mr Barnes, thanks. On whether presumptions of guilt could be limited to one class of (very serious) crime – which I test by considering whether the behaviour is highly unusual and substituting ‘sexual assault’ with e.g suspected terrorism – I think we will agree to disagree. But dont let me stop you being provocative.
Best wishes