In freeing George Pell, the High Court did not change the law. It did not render jury trials meaningless. That is so, whether you agree or disagree with the factual conclusion it reached after imposing its own opinion about the evidence in place of the jury’s in Pell’s trial.
The court did, however, plant a flag firmly in the sand. Its emphatic declaration, made with the full force of seven judge unanimity, was this: the criminal law of Australia makes no special allowances for allegations of historical sexual violence against children. Sexual violence, whenever it happened, however frequently and insidiously and whoever were its victims, will be treated no differently from any other category of crime.
This is the watershed moment for our society. The highest court has confirmed, definitively, the status quo of the law. A person, powerful or not, accused of a sexual crime, is entitled to the identical protections as any criminal defendant. These are the presumption of innocence; the protection of the prosecution’s burden of proving guilt beyond reasonable doubt; and, most critically, the right to silence.
We knew this already, but now we can’t ignore it. The questions it leaves are these: are we content to continue with a criminal justice system which makes it almost impossible for victims of sexual violence, particularly those who come forward many years later, to see their perpetrators convicted? Is it satisfactory that most victims will never come forward at all, because they can see that it will be they who are put on trial?
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These are uncomfortable questions. They are rooted in fact. Sexual crimes are massively under-reported; complainants are inevitably retraumatised by the criminal justice process; convictions are incredibly difficult to secure. None of these facts engage a conspiracy theory about the rich and powerful. They’re plain, incontrovertible facts.
If this is not okay, then we are wasting our time arguing over the minutiae of the movements of Monsignor Portelli on any given Sunday at St Patrick’s Cathedral. The system that ultimately freed Pell worked, within the parameters by which it has operated since it was invented. There was doubt, sufficient for the High Court anyway, and the conviction could not stand.
So forget that system; it doesn’t work. Not because the High Court got it wrong, but because the system’s design does not fit crimes of sexual violence, especially those committed by perpetrators exploiting a position of trust or authority.
Personally, I do not think the problem is with the criminal standard of proof. Beyond reasonable doubt is an extremely high hurdle, but it should be. Nobody should be punished for a crime if it is not satisfied.
Nor is the presumption of innocence the wrong way around. Like many advocates, I start from the position of believing every complainant who alleges sexual violence. It doesn’t follow, however, that the accused person should have to prove their innocence. Most assaults occur without witnesses or unequivocally damning forensic evidence, and the benefit of doubt must still fall in favour of not putting innocent people in prison.
I think the root of our problem is the adversarial justice system itself. There are many other issues — cultural, educational, police training, rules of evidence and the drafting of sexual violence laws. But what goes wrong at a fundamental level is the reality of who is on trial.
In the adversarial system, the burden is entirely on the prosecution to prove guilt. The accused has no obligation to play any role at all in their own trial, beyond pleading that they are not guilty (they don’t even have to declare their innocence). After the plea, they can sit back and let the prosecutor rip. If they can manage to raise a reasonable doubt and the prosecution can’t find a way to defeat it, then acquittal must result. And they can get there without saying a word.
Pell took that course, as was his right. He did not give evidence at his own trial; his version of events has never been revealed. All we know is what he said at a press conference, rather than under oath: that the crimes never happened.
No criticism of Pell; he was entitled to take that course and it ultimately succeeded for him. But there is an alternative we could consider.
If, instead of the adversarial system, we adopted an inquisitorial one, then the emphasis would shift from a one-side contest of proving guilt on a legal standard, to a singular focus on getting to the truth. In that type of system, all parties have the same role: to assist the court to get to the bottom of the matter, and determine what actually happened.
In such a set-up, a person accused of a crime of sexual violence would maintain the protection of the presumption of innocence and still could not be found guilty except beyond reasonable doubt, but they would be stripped of their right to remain silent. They would be obliged to respond; to tell their side of the story, to face cross-examination, to have their credibility tested alongside that of their accuser.
Before the howls of outrage begin, remember two things: first, what victims consistently say is that they want to feel heard. That does not happen when the only person being questioned, tested, challenged and disbelieved, throughout the entire process, is them. A justice process that causes more trauma to the victims it means to protect is not just.
Second, what I said before. What we have doesn’t work. Unless we don’t particularly care about delivering justice for the legions of victims of sexual violence among us, then something has to fundamentally shift.
If it ain’t broken don’t fix it? Well, it’s broken.