Note: this piece discusses sexual assault and suicide
In case we were too thick to get the point, Attorney-General Christian Porter’s lawyer made it clear: with the filing of his defamation suit against the ABC the “trial by media” should now end.
Unstated but equally signalled: so should the calls for an independent inquiry into the allegation of rape against Porter.
The defamation case has successfully sucked up most of the media’s attention for now. It will, apparently, be the trial of the century, pitching Bret Walker SC and Justin Gleeson SC into open combat over this most salacious of disputes.
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Already forgotten in the excitement is Kate, the woman who said Porter raped her. That is both predicable and intentional, one of the natural consequences of our national obsession with the wrong set of rights.
There are several key differences between the defamation trial we’ll be having and the inquiry we won’t. They illustrate neatly most of what is wrong with how we respond to alleged victims of sexual violence. In this context the availability or realisation of a criminal prosecution is an irrelevance. It is focused on an extremely narrow question — criminal guilt beyond reasonable doubt — which obscures the matters to which the most attention needs to be paid.
There are two ways of looking at an allegation of sexual violence, and the current tearing of social fabric is the exposure of the gap between them. They are, simply, the views from the perspectives of the perpetrator and the victim. On one hand, reputation; on the other, belief.
Defamation is a course of action whose sole purpose is to restore a person’s reputation which has been unfairly damaged.
This is how it works: the ABC publishes an article reporting that an unnamed cabinet minister has been accused of raping a 16-year-old girl in 1988.
Porter files his suit, claiming that the article has defamed him by — in its combination of words (with all their literal, tonal and implied meanings) — telling its audience that he brutally anally raped a teenager and contributed to her taking her own life many years later. Alternatively, he says, the article suggested he was reasonably suspected of committing that crime. Porter has strenuously denied the allegations.
Porter has the unusual hurdle of having to prove that although the article didn’t name him it was clear enough to readers that it was talking about him.
Now it’s over to the ABC to decide on its defence: whether to admit or deny that the defamatory imputations pleaded by Porter arise at all, and whether to defend on the basis that the imputations are true (i.e. that Porter did commit the crime). If it pleads truth, the case will look quite a lot like a rape trial but on the civil standard of proof (balance of probabilities) and prosecuted by a media organisation rather than the state.
Critically, the case starts with the proposition that the law has a responsibility to protect Porter’s good reputation. Its purpose is to determine whether that reputation has been harmed and, if so, whether there was a good legal justification for that harm being inflicted. If not, it will award damages to compensate his loss.
The complainant will of course be physically absent in this case, but her interests would be in any event. As with Eryn Jean Norvill in the Geoffrey Rush defamation trial, her allegations are just factual context for what is really in issue: his reputation.
An inquiry, by contrast, would begin with the allegation of what happened. When we (including the prime minister) talk of the importance of believing victims, we mean the opposite of dismissing them out of hand or treating them as of lower importance than the reputation of the alleged perpetrator.
We mean listening to, hearing and acting on their reports with an open mind that is attuned to the gravity of the claim and the risk of further harm to the complainant.
An inquiry’s focus would be to determine what happened, as best that can be done with the evidence available to hand. It would require compelling proof to be able to make a positive finding on the allegations against Porter. Perhaps that is impossible; but it’s not for us to speculate, that is the whole point.
The inquiry would compel and weigh the evidence from both sides, starting from a neutral position. Its concern would not be the arcane legal principles and rules that wrap around the concept of reputation; it would be chasing the objective truth. If that cannot be found, so be it.
In the end, the inquiry would provide a basis for determining the fitness and propriety of Porter continuing as attorney-general, a determination in the hands of the prime minister.
The defamation trial cannot achieve that end; it is private litigation which can and will only determine whether the ABC did call Porter a rapist and, if so, whether it can access one of the defences that the law provides to justify its publication of the claim.
What remains unheard by the legal system is what Kate said.
If you or someone you know is impacted by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au.