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.
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.
For anyone seeking help, Lifeline is on 13 11 14 and Beyond Blue is 1300 22 4636
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Bradley writes with knowledge of the name of the alleged offender. He suggests a strategy for the PM to follow. I do not know the name of the offender, and in that context, wonder if the PM might be the offender – in which case it’s very unlikely that he will adopt the suggestions Bradley makes. This, incidentally, gets to the nub of the issue: in information darkness, all 16 male members of the Cabinet are suspects – even the PM.
PM is unlikely – I would be very surprised if it were him, given that the letter was sent to him and that it asked him (and the other recipients) to act. One of them was in relevant places at the time the victim-survivor met him and when the offence was allegedly committed. And he has been notably media-shy in the past fortnight, despite holding a position that would make him an appropriate person to comment on these matters on behalf of the government.
Greenwitch – Your 3rd sentence nails it, and him.
It’s not difficult to find out who it is. Media won’t name, but back forums are all over it.
Sad that apparently the female members of Cabinet seem happy to keep working with him.
Well for that matter that they are happy to work with all the men in the cabinet who choose to protect the alleged perpetrator, rather that force him into the open.
Good point. Regret casual sexism on my part. I should have asked Jenny.
The women in cabinet must feel uncomfortable, you would think. But then power corrupts doesn’t it?
As ‘sad’ is an understatement, may I suggest “shameless”?
My thoughts also, WillyLupin.
Morrison is guided by Christian values.
The values of the Attorney General?
Great question. And ‘natural justice’ is legalese for most constituents so you’d think it’s meaning and application to this matter would be explained by none other than the AG??
For those who wonder –
https://www.ag.gov.au/sites/default/files/2020-03/best-practice-guide-2-natural-justice.pdf
The Ombudsman can investigate a complaint and make an adverse report in relation to an agency that has acted in breach of natural justice.
100% he is.
Is that how you spell it?
Given that many Ministers know full well who has been accused (see New Daily reportage) one might wonder how they acquired this knowledge.
A bit of locker room boasting?
It is not the PM. For one he was one of the recipients of the alleged victim’s letters. Secondly he’s been briefed on the matter by the AFP, and if he were the suspect himself then the AFP would not, indeed could not, have done this.
The key to working out who it is is to see who was involved in the debating competitions mentioned in the first article today around this time. At both high school and university. There are two of them. One has been really busy in the past 48 hours removing all reference to it on his wiki page.
Your idea of an inquiry has real problems. Sure, the High Court commissioned an inquiry into Dyson Heydon, but there’s a crucial difference. In that case, all the complainants, as well as Heydon, were still around and able to participate. Heydon chose not to, but that was his choice to make.
In this case, the victim is dead. The central part of her complaint can never be tested, and the rest of the facts you’ve referred to are of little if any relevance, except to paint an unlikeable picture of a man whom the persons who’ve stated those facts now don’t like. In the current climate of “always believe the victim”, the Minister wouldn’t stand a chance, and if by any chance the inquiry found that the allegations were unlikely to be true, the inevitable response would be that the inquiry was rigged.
I agree he should identify himself. I agree he should make a statement. But no inquiry.
Yes, the victim is dead, which is terrible and makes matters a lot more difficult. But if the death of the victim is sufficient to rule out any useful investigation, I wonder why anyone investigates a murder.
Thank you 😉
A very poor attempt at analogy.
An accusation by a deceased person lacks a crucial element, testability.
An investigation therefore would require other forms of proof which would necessarily be circumstantial.
Neither hearsay nor 3rd person reports have much legal value.
You are missing the point entirely. Just as a murder can be investigated without requiring the dead body to accuse anyone, the matters raised here can be investigated. Bradley, and he should know, has said explicitly that no criminal trial is feasible, and that would not be the objective of such an investigation. We need not disappear down the rabbit hole of disputing what is admissible in a criminal trial.But still a competent independent investigation is urgently required.
It is about mob mentality and not logic Agni. Non-circumstantial evidence may be in existence; who knows. Either way it is a police matter.
Legal opinion says you are wrong again Erasmus.
That is not what the article illustrates.
oh yes it does
A prosecution is one thing but the matter turns upon the evidence. Nothing original there.
YOUR legal “opinion” sport?. Secondly, when was I wrong previously? Evidence? Facts first eh?
I’m a bit slow I know but, what’s the difference ( apart from the obvious) between Heydon “not participating” and a deceaced complainant in an enquiry?
Heydon wasn’t the victim.
It’s worth noting, as reported by Maiden yesterday, that the alleged victim had provided sufficient evidence to the SA police (she went to them, as well) that she’d ‘recorded’ them (dunno how) suggesting it was likely sufficient to go to trial.
Very astute analysis.
The parliament is paralysed and compromised. The role of a leader is to be willing to make hard decisions. Scott Morrison must stand the minister down or insist on his ‘voluntarily’ stepping aside. His remaining in the cabinet is intolerable and unworkable.
Normal legal proceedings are not available. Anything less means that the alleged perpetrator cannot be legally convicted, though his reputation is already destroyed.
To make it easy on himself, he should resign from parliament and slink off to lick his wounds and reflect on the meaning of the word ‘justice’
Agreed 100%, chances of something along those lines happening are much closer to 0%.
Morrison and the escaped criminal will try to bluff it out, and the the pressure will continue to mount for someone to name and shame him.
Which “escaped criminal” would that be?
I think the AG knows who it is…..and if you have escaped punishment for a criminal act, doesn’t that make you an escaped Criminal?
Words on which to build a solid foundation – “think” (sic!), “if“, “escaped criminal”
yet no sight of the most important one – “ALLEGED“.
Consider how comfy you’d be in a society run along such lines when the pitchfork brigade decides that 2+2=5.
I feel that there will no admission of guilt after all why would he admit to the rape of a minor with the attendant personal consequences.Much better for him to remain silent.
Better for whom?
“His remaining in the cabinet is intolerable and unworkable.”
Every male in the cabinet, PM included, is tainted by suspicion until the perpetrator is known.
“The victim was my client, and I know who the minister is. My commentary is based purely on what’s on the public record…’
You. Have. Got. To. Be. Kidding. Seriously, Crikey? You’re OK with this deeply self-serving, profoundly red-flaggable authorial bilge, Editor Peter Fray???
(Friendly Jordie? Care to comment?)
Man, I thought the Pell-driven meeja-salem pack mob hysteria was prejudicially insane enough. But that was clearly just a taster.
Wow. Just…wow.
What is your problem?
As Lindy Chamberlain justly & rightfully could say ” Maaaate ,life as you know it ,is over “…But you have your AussieOzzieOstrich option of sticking your head right up the backside of your sandbagging..
Interesting that you cite Lindy Chamberlain who was the victim of precisely this sort of mass hysteria – ‘Sacrifice in the Desert’ – created & manipulated for fun & profit by a venal, meretricious media.
I agree entirely with you here Jack (climate matters less so). The moral fiber of the country has imploded since (as a kid) something like half a century.
The PM received a letter from the AFP and, apparently, the content of that letter is being ignored by Cky. Funny ha ha!
Lastly, for anyone, there is a burden of proof in criminal trials AND for good and historical reasons.
Ah yes, the tired old canard of insisting the standard of proof in a criminal trial be applied to everything as though it is a universal principle. The good and historical reasons you mention are of course reasons applicable to criminal trials. To other questions, not so much.
“Quack, Quack” said the tired canard enchaîné.
Minus 34…that must be a record hating’. 34 flaming pitchforks!!! String him up! 🙂
Look, if y’all can’t see what the ‘problem’ with this is all by yourselves, nothing I can ever say will help. So please just politely step around me – as politely as a mob can, anyway – and be on your way. I’m no threat, but I’m not budging, either.
Fools, though.
Interpreting even the most mild dissent from your point of view as a ‘mob’ with ‘flaming pitchforks’ suggests you might benefit from a nice cup of tea and a lie down in a dark room. As does the general incoherence of your first post on this thread. But whatever.
As I said, nothing I can say will make you see the problem I see, Sinking: that the second this minister is outed, his perceived guilt, already long bedded in by the mob as beyond all further debate, will attach itself to him, forever. As it has Pell,
To you it’s not a problem, because you’ve already decided that whoever he is, he is guilty. (If he wasn’t guilty there’d BE no witch-hunt, no mob, no story – right?) The accusation is itself the guilty verdict, now. The process is the punishment. The specific individual crime is the collective criminal ill, and vice versa.
It’s a very seductive, and comforting, and especially vicious kind of justice. Because it always goes after the most powerless the most, most of whom don’t recognise its viciousness until it knocks on their door.
Gosh, you do mind-reading. How impressive.
‘Because it always goes after the most powerless the most…’
Right, leaving aside other yawning gaps in your argument, your ‘most powerless’ are, at present, a federal government minister and a senior cardinal of the Catholic church. Really?
There are other court cases besides Pell’s,and other workplaces besides PH, the Gallery, Teh Grauny & the ABC.
I suppose they don’t count as much, though.
Everyone is powerless before the mob, as Robespierre and several hundred colleagues found.
All revolutions fail because destruction is easy, building less so.
Those who emerge from the smoking ruins to rule are never the vanguard nor the first few ranks of activists but the apparatchiks, backdoor boys, the enablers, toadies and inadequate, the Evil of Banality.
As not noted by Arendt.
Yes and no Agni. Had the Germans proved to be obstinate Lenin would have missed the show.
And our Attorney General has a rather lop-sided concept of justice, see for example Witness K and Collaery….so sympathy levels for him copping some rough justice are about zero.
And of course the same goes for Pell, no sympathy for the slimy old coot whatsoever..!!
As high as that?
Dunno amongst whom – even his colleagues, not noted for their EQ, will be wanting him gornnn, asap.
Even more impressive when there is no mind to read – just a howling void with lots of participants.
Hmmmm… agree you have a smudgy point there; it’s as though the public are acting like the Murdoch press and how dare they!
As Junior Packer once quipped to his gal, ‘get back in your box!’ – Jack, off with your claims of legal calamity.
If justice cannot be done then it will, at least, be seen to be done and – for a change – to a man who has no paucity of access to legal or media defences.
The alleged rapist will not be on trial but his colleagues most certainly are.
The jury is out.
Which ‘jury” would that be?
Certainly not one empanelled in a court of Law.
Or do you mean in the court of public opinion, with a Jester presiding?
How many times do people need to be reminded of Martin Niemöller?
If his point is forgotten, everyone will be ‘next’, eventually.
Often a lot sooner than imagined.
History gets in the way Agni. The mere reflection enrages some. It is about venting “feelings”; bollics to (historical) facts.
Yep, I’m reasonably sure that you have the lead now Jack. I can’t imagine what I’m going to have to do to recover it.
On the other hand, pity about the neighborhood, there are the public displays of electoral comprehension that would be invidious for a better read audience.
Whatever the role you play here “Erasmus” (a tad pretentious?) you perform it well. Begs the question really, why do you bother commenting here?
Unlike some, I’m here for a discussion. I’m rather Left but without incipid sentimentality. I don’t have any tribe or “home team” mentality.
To paraphrase – “Here the principled must stand. They can do no other.”
One thing that really ought to be acknowledged is that the standard of evidence that is required for criminal law is letting those who are victimised by rapists and paedophiles down. When those who are raped, either as adults or children, can’t get a fair hearing for the crimes, surely you see why people are justifiably outraged at a system that keeps perpetrators free and denies victims justice.
Yes, there are good reasons for why the standard of proof in a court of law is what it is. But we have to acknowledge the consequences of that – rapists walk free, paedophiles get Vatican protection, orginisations care more about the fallout than the fact of the crime committed.
These crimes are greatly underreported. Those that are reported rarely get punished. As a society that supposedly cares about law and order, this poses a challenge to its operation because the system is failing victims and protecting rapists.
OK chuck em into lakes. The greater fear is convicting the innocent. Read Plato on the point.
“OK chuck em into lakes. “
How did you get that from what I wrote?!
To put it into a syllogism:
The point is that we can go on about justice all we want, but we need to acknowledge that our system as it stands is failing many people. If that’s the best our system of justice can do, then we need to own it. We need to argue that rape and paedophilia are inconsequential crimes in the service of a greater good (the greater good in this case being, as you identify, a sufficient burden of proof) that demands a standard of evidence that such crimes in isolation can rarely live up to.
But I don’t believe it is. We have millennia of thought on justice – Plato included – that has shown time and time again humans can make better systems than what was there before. If we feel that no reforms are necessary, then we are at odds with the sheer amount of data that shows our legal system is ill-equipped to handle such crimes, the consequence of that being rapists and paedophiles being free to perpetrate again and again and again and again, with more people suffering because of it.
Reform is one thing. Noise from the penny stalls is quite different. Even the legal system (surprisingly) is susceptible to appeal.
Plato’s point was, as demonstrated from the Middle Ages to about the mid 19th century, was that an obsession with retribution destroys the concept of justice.
Again, not sure how you’re reading an obsession for retribution into what I was saying. Or what anyone is saying. Any charitable interpretation (from which all debate must begin) of the outrage and the need for urgency over this issue is that the system as it stands is failing to address the problem in society of sexual assault.
By not addressing it, it signals to perpetrators that they can continue without much threat of consequence, and to victims that they just need to wear it irrespective of the trauma it causes and the lives it destroys.
None of this is to say that due process doesn’t matter, or that we should look to mob justice, but that as a society we need to look at how our system is failing so badly when it comes to sexual assaults. If one can’t even acknowledge how badly this system is failing victims without screaming about witch hunts or closing that innocent people would be locked up, then we need to acknowledge and own that injustice as a feature rather than a bug.
Let’s see what occurs Kel.
About three months ago I clown of a Cky contractor wrote a slab about Trump refusing to depart from the White House. I don’t recall the number of down-votes I received for suggesting that we see how it looks on the 19 January. Some likened the suggestion to climate change FFS!
I intended to critique your point 2. but, in any event, a glib generalisation won’t serve in its place.
You proposed a syllogism but produced a legal solecism.
Solipsism is never a firm foundation for rational thinking.
I agree that rape gets past the system far too often, and yes, society is more than likely unjust for the victims of rape. The issue here though isn’t the legal standard of guilt, which must remain so. For a very large part, it’s the cultural standard that exists to prevent people being measured against that standard that is at fault. It’s not our law at fault, it is our culture including within the legal system. Boys will be boys, he’s from a good family, he said she said etc etc etc.
Easing the burden of evidence of crime for any reason is a slippery slope to start down, in my opinion. Some crimes do go unpunished and the law will sometimes be unjust in more than just rape, and it is all to ensure that an innocent person being convicted of crime is so rare that it borders on almost impossible. This is a lesson democracy learned the hard way, and I wouldn’t want it to be weakened in any way.
The boys clubs need to be broken but the legal standard is a protection for everyone and should not be modified.
All IMO of course.
So in your opinion, there’s no way at all to use what researchers have understood about how sexual assault occurs and incorporate that into the legal proceedings? That no matter what we’ve learnt about how sexual assault happens, there’s nothing that can be done to improve how our trials are performed?
Because it seems to be that science all the time is finding better ways to understand how the world works, including what kinds of evidence we should expect in cases of sexual assaults. Meanwhile we have countless bright minds who look at the way the law operates and have identified numerous places for improvement.
I honestly don’t get those who are believe that we have the best of all possible legal systems, and that nothing can be done to improve them. It’s all human institutions, after law, with laws made by fallible people trying to the best they can. With all the brain power we have working on such matters, I’d be really surprised if we couldn’t come up with any way to improve things. It’s failing so badly now – when we’re looking at about 1% of assaults leading to convictions, surely there’s some room for improvement.
All of that is true enough, Kel. But we humans (and our human societies) are smart enough to walk and chew gum at the same time.
Just because we’re angry that Rome/the ass of The Law protected/s a lot of pedophiles for decades (centuries) doesn’t compel us to express that anger by trumping up a ludicrously preposterous charge that Pell was one, too.
And just because Michael Bradley makes a good (and high profile) living pushing the reform boundaries of the current way we try he said/she said alleged sexual crimes/injustices – usually with honorable motives but not always with honorable outcomes – doesn’t compel Crikey’s editor to indulge it. (Peter Fray of all people should have a grasp of the problematic fraughtness of trial by media innuendo.)
Everyone loves legal eagle and meeja tiger vigilantism. All the more when it’s combined as one. Until they or their loved ones get on the wrong end of it. We know that cabinet minister will never face trial and even if he does and even if he’s guilty he’ll get off.
But the next indigenous drink verballed by the plods won’t. Get it? The only victims of mobs are the weak and the vulnerable.
Fools. Mobs are always made of fools.
“All of that is true enough, Kel. But we humans (and our human societies) are smart enough to walk and chew gum at the same time.”
But are we smart enough to make a legal system where more than 13% of sexual results are reported, more than 1/3rd of those lead to legal action, and more than 1 in 10 of those leads to a conviction? By my maths we’re somewhere between 1% and 2% when it comes to sexual assaults – and I’m being conservative in my figures. That would mean that we’d need something like 49 in 50 victims to be lying to have a legal system that matches the reality of sexual assault.
If you can’t see that the system is stacked against rape and paedophilia (ignoring for the moment of how institutions protect perpetrators and perpetuate it) then it’s cold comfort to say we live in a just society. Because it’s quite clear that our system as it stands doesn’t protect victims, or strive to see justice done on their behalf. So people are angry because they see a system that fails to punish the perpetrator and fails to protect the victims.
Your “just” society seems a bit less than just to anyone accused of a crime. As usual, there some great good for which people should give up their freedoms and rights and there is some group of people whose judgement is better even than the entire system now.
Given I haven’t put forward what I consider a just society, I’m surprised by this. What I’ve repeatedly said is that the current system as it stands is unjust to anyone who is a victim of assault, and it perpetuates those crimes. Arguing that we live in the best of all possible legal systems seems absurd in the face of the overwhelming amount of sexual assault the system fails to address. So the only other defence I can see is to embrace rape and paedophilia as necessary all-too-frequent occurences a just society.
How to fix that is a matter for legal experts, researchers in relevant fields, and the courts. I, like most people, can’t do much more than say how it stands now is failing victims, and it protects and enables perpetrators. We can either own the consequences of that, and embrace that we truly don’t care about the trauma these crimes cause, or we can push to reform our system to better address what is grossly inadequate.
yes I agree with your last par entirely.
Well said, thank you.
Are you aware of William Blackstone’s principle “Better 10 guilty go free than one innocent convicted“?
Benjamin Franklin bumped it up to 100.
You do miss the point though. This minister is never going to be convicted on this but on the basis of the foregoing is probably guilty on the balance of probabilities. I don’t want any minister to be “probably” guilty of a crime like rape. Do the fifteen others feel happy to be in his company? Only that their discomfort is less than than the alternative. Losing office.
Are you aware that the possibility of a criminal conviction is not feasible in the circumstances (have you read the article?) so all this hysteria about finding someone guilty (in the formal sense required for Blackstone and Franklin to be invoked) is just so much irrelevant nonsense?
Ever lived in Russia SSR? There was no Rule of Law under Alexander OR Nicholas.
William Blackstone understood Plato’s Laws. It is a senior topic but you might reflect upon them even minimally.
So yeah let’s stop trying then.
I don’t if you were ”trying” to make a pun but what a, distressingly, few people here are suggesting is that until a trial is even in the offing, never mind over, all the vapouring, posturing & preening of the usual suspects & bien pissants, is vanity.
Extremely dangerous vanity.
Who will be next?
As with Jack, I could not agree more!
Moral panic & mob hysteria is never far away.
We’ve seen the damage the canx brigade can do but this threatens our right to bring down the entire tottering edifice.
Thankyou Jack Robertson.
A solitary voice of reason.