By Karen O’Connell and Liam Elphick
Following the allegations of rape against attorney general Christian Porter, which he firmly denies, Scott Morrison has insisted that alleged sexual assault can only be dealt
with in criminal law. “I am not the police force,” he said when asked for his response as prime minister. “That is a matter for the police. I am not the commissioner of police.”
Treating an allegation of sexual violence as if it is, and can only ever be, a matter for police and the criminal law is legally incorrect and a dangerous message for the many women and men who have experienced sexual assault. It also kills off a measured, informed public conversation about how else we might respond.
The criminal law remains, despite valiant attempts to reform it over the years, a terrible tool for dealing with gender-based sexual violence. Governmental data suggests that almost 2 million Australian adults have experienced sexual assault since the age of 15, yet only about 14% of sexual assaults in Australia are reported to police. An overwhelming majority of these reports do not end with a conviction.
Without a living person to provide evidence, the very low prospect of a conviction evaporates. The police discontinued their investigation into the allegations against Porter largely because of this. Is that then the end of all possible legal or institutional responses as Morrison is suggesting?
The answer is no: alleged sexual violence can be investigated without police or criminal proceedings. There are a range of legal responses available to victims and their families, including a civil action in battery, a sexual harassment claim, or pursuing compensation under other statutes. In each of these instances, victims do not have to rely on police to bring their claim, and the standard of proof required is lower.
In battery, more commonly known as “assault”, a victim can sue their alleged offender for compensation. A recent US example is the cases brought by various women against movie producer Harvey Weinstein. These civil suits are separate to his criminal prosecution.
In New South Wales, where the allegations against Porter are claimed to have occurred, it is also possible, if rare and difficult, for an alleged victim’s estate to bring a battery claim on behalf of the deceased. In a child sexual assault case it does not matter how many years have passed.
Allegations of sexual violence can also be investigated under sexual harassment laws, without requiring determination of criminal guilt.
Jemma Ewin, whose criminal case was unable to proceed because of problems with evidence, successfully argued under Australian sex discrimination laws that sexual intercourse which took place after a work function was “unwelcome sexual conduct”. Here the test was not the criminal “beyond a reasonable doubt” standard but that it was “probable” that she had not consented to the sex. Ewin was awarded a record amount of compensation.
These actions can also be difficult to bring, and they are not an adequate response to the harm of sexual violence, but they are an important aspect of the legal picture that Morrison is disregarding.
There has been intense concern expressed by the government and some media commentators that the principle of “innocent until proven guilty” is being undermined. It is true that a person should not be treated as if they have committed a crime if criminal standards of evidence and conviction have not been met. It is important that if there are findings against a person in civil cases or inquiries, this does not lead to a presumption that the person is guilty of a crime.
But these examples show that an absence of criminal prosecution is not the end of the conversation about legal responsibility and harm.
An absence of criminal prosecution also does not limit institutional responses that are directed not to a person’s guilt or liability but to their suitability for a particular role.
Independent inquiries are often commissioned by institutions in response to allegations. These include workplace inquiries, royal commissions, coronial inquests, anti-corruption bodies, and other everyday disciplinary proceedings. None of these processes require a previous criminal charge or prosecution. Indeed, they mostly occur in their absence.
The high court recently conducted an independent investigation into sexual harassment, triggered by allegations against former Justice Dyson Heydon, which focused on allegations at work but also helped to maintain public trust in the integrity of the court. The attorney general is Australia’s highest law officer and trust in that role is institutionally important.
Lawyers in particular are held to high standards of conduct and are required to prove that they are a fit and proper person to be admitted to practice law in Australia. Legal practice boards can consider complaints made against lawyers. Two legal academics have referred the attorney general to the Legal Practice Board of Western Australia, although the executive director of the board has indicated they are unlikely to investigate.
There are a range of ways in which our legal system and our institutions investigate credible allegations and provide the opportunities for all parties to have their perspectives heard. It is misleading to suggest the criminal law is the be-all and end-all in such matters.
If we let the end of police proceedings be the end of any discussion about alleged sexual violence, we continue the long legacy of ineffectual legal and governmental responses. We should not treat someone as guilty of a crime if allegations cannot be tested, but that does not mean that our only choice is no response at all.
Karen O’Connell is associate professor at the faculty of law, University of Technology Sydney; and Liam Elphick is associate lecturer at the faculty of law, Monash University, and a member of the Working Group on Gender and Sexuality at the Castan Centre for Human Rights Law.
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