Note: This story discusses sexual assault.
The case for Christian Porter, mounted by both Porter and several government ministers, hinges partially on the argument that a criminal prosecution of historical rape allegations against the attorney-general will never proceed. (Porter denies all claims made against him.)
Porter, we’re told, must be afforded the presumption of innocence. Any inquiry into the allegations made against him would undermine that, and with it, the inherently vague concept of the rule of law.
But criminal law isn’t the only area of law out there. And it isn’t the only avenue for some kind of legal process concerning the allegations.
Sign up for a FREE 21-day trial and get Crikey straight to your inbox
While calls for an independent inquiry have been thrown around since the allegations first aired, questions are being raised about the remote — but plausible — possibility of a civil suit against the A-G.
The prospect of a civil case
Marque Lawyers managing partner Michael Bradley, lawyer for Porter’s alleged victim, said the chances of a civil claim being brought are almost non-existent.
But “almost” is the key word here.
Monash University associate lecturer Liam Elphick told Crikey “there’s no bar on a deceased victim’s estate bringing a claim on a historical assault”.
That’s thanks to a 2016 legal amendment which allowed an estate to sue on a victim’s behalf.
“There’s usually a limitation period [of three or six years], but in NSW for child sexual assaults on a person under 18 there’s no limitation bar,” Elphick said.
There’s also some possibility, however slim, for the alleged victim’s family to bring a claim on their own behalf, says Bradley.
“Her family, parents, have a hypothetical claim for harm caused by the tortious act, which technically is a trespass to the person in the case of sexual assault,” he said.
In essence they’d have to show, on a balance of probabilities, that Porter’s alleged actions had caused them mental harm.
“[But] it’s extremely remote and almost impossible to mount or succeed,” Bradley added.
Elphick says the issue would be proven on the balance of probabilities both that the assault actually happened and that it caused mental harm to the family.
All this could well be moot — Crikey understands that the family of Porter’s accuser are not interested in pursuing a civil claim.
Sexual assault as civil law
The framing of the Porter allegations as primarily a matter for criminal law misrepresents the fact that civil law, with its lower standard of proof, provides numerous and often more accessible avenues of redress for victims of sexual assault.
The Sex Discrimination Act for example allows a victim to bring a claim for sexual harassment (defined to include sexual assault) in a range of settings including workplaces. Independent MP Zali Steggall is trying to get the act extended to cover conduct by MPs, judges and other statutory appointees.
A victim could also sue for battery in tort law — the primary non-criminal avenue open to the family of Porter’s alleged victim.
There are obvious advantages to a civil claim. Police and Crown prosecutors don’t run the process, meaning a victim may have more autonomy. And the civil standard of balance of probabilities is far easier to prove than beyond a reasonable doubt.
Why, then, do we view the criminal law as the primary avenue for sexual assault cases? University of Technology Sydney associate law professor Karen O’Connell says this could be in part down to a less litigious culture in Australia compared with the United States — we tend to not sue much, and be less well aware of our legal rights, especially outside the criminal law.
In the US there are numerous prominent examples of civil suits for historic sexual assault — most recently the multimillion dollar settlement reached between Harvey Weinstein and his victims. Here in Australia however these cases rarely come before the courts.
Bradley also notes the lack of precedent means such a case could be quite high risk for a victim.
“One of the disincentives is you probably wouldn’t get substantial damages because there’s not much precedent for these cases,” he said.
According to Elphick, the same factors that deter victims from going through the criminal process work in civil suits: “The likelihood of success is low, even with a lower standard of proof.”
But O’Connell worries that all of these problems have fortified a common presumption, that only criminal law can deal with sexual assault, one the Coalition has exploited in its disingenuous framing of the current debate around Porter.
“There’s a bit of a mismatch in our public debate where people talk about sexual assault,” she said. “The standard for criminal prosecution is very high, and once that hasn’t been met, people behave as if there’s nothing else to it.”
Survivors of abuse can find support by calling Bravehearts at 1800 272 831 or the Blue Knot Foundation at 1300 657 380. The Kids Helpline is 1800 55 1800.
If you or someone you know is impacted by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au.