Note: this article discusses suicide and sexual assault.
As matters stand today, the prime minister has, among the 16 male members of his cabinet, a senior minister who is accused of raping a 16-year-old girl in 1988. I’ll put this upfront: The victim was my client, and I know who the minister is. My commentary is based purely on what’s on the public record.
The question confronting Morrison, his cabinet ministers, his outer ministry and his entire government is politically explosive but ethically straightforward. What should they do?
As a legal fact, it is theoretically possible for a criminal rape prosecution to proceed despite the alleged victim having died. As a reality, that won’t happen. The evidentiary burden on the prosecution and the legal protections afforded the alleged perpetrator cannot be bridged.
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The coronial inquest into the victim’s tragic death is unlikely to address (and cannot resolve) her allegation of rape. Its purpose is to determine the cause of her death.
In simple terms, there is no ordinary legal process which is going to move forward the case.
That leaves a situation which is untenable: a senior cabinet minister under the cloud of an untested allegation of extreme gravity.
The political consequence is paralysis; the government won’t be able to effectively function because the integrity of almost its entire front bench is in question. There is no possibility of clear air.
Political calculation may continue to determine what Morrison and his colleagues do (as it consistently has in relation to Brittany Higgins’ alleged rape). However, it is not too late for them, collectively or individually, to consider what would be the right thing to do.
The first obvious step is for the minister who is the subject of the allegation to come forward, identify himself and make a public statement. He should also step down — or be stepped down — while the matter is formally addressed.
Secondly, the prime minister should institute an independent inquiry into the matter, to fully investigate the allegation and its surrounding circumstances, and determine on the civil standard of proof what happened. This is similar to what the High Court did in response to the allegations against Justice Dyson Heydon.
Given the seriousness of the allegation and the potential consequences, such an inquiry needs to have real substance. A judicial inquiry may be most appropriate, with powers to compel witnesses and take evidence on oath. It should not be internal, secret or capable of being buried. In fairness to everyone, it must be beyond suspicion.
It is of course not optimal that there will never be a determination of criminal guilt in this case, from the perspective of the victim, the accused, and the public. The unavailability of that resolution, however, forces us to make do with the remaining available tools.
What if the cabinet minister remains silent? Then the prime minister must step up and make the identification himself.
What if he doesn’t, and refuses to institute an inquiry at all, relying instead on the presumption of innocence as a sufficient justification for doing nothing?
That scenario would be untenable, I would hope, for the other members of the cabinet. How could they continue, their own reputations smeared, and one of their colleagues carrying on with the allegation left hanging? They should resign their commissions.
The same cascading collision of corporate and individual responsibility rolls all the way to the bottom of the government. It is ultimately a personal question of integrity and ethics: with what standard of unaccountability are you prepared to be associated?
It’s one thing to sit in cabinet, the ministry, or the party room with colleagues who have no apparent compunction about using public money for partisan gain. It is quite another to sit next to a man who is accused of raping a schoolgirl but won’t stand up and face up.
If this were rugby league, the player would have been stood down by now. That is because the integrity of the “game” is paramount, taking precedence over the rights of the accused. Can we seriously tolerate a lower standard in government than in sport?
If you or someone you know is impacted by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au.