Trial by media, politicians or social media does not serve justice

Feb 22, 2021

The mindset that says that all persons who make claims of sexual abuse are to be believed and therefore they are “survivors” or “victims” is problematic to say the least. 

The appalling mishandling by the Morrison Government of the serious complaint made by a former staffer, Brittany Higgins, that she was raped by a colleague in the parliamentary office of the Defence Minister has ensured sustained media interest in this matter for some time.

If there is an investigation by police and charges laid against the alleged perpetrator, who is said to have sought inpatient psychiatric care this week, then issues around ensuring that he receives a fair trial are of prime importance.

This in part means that while not disrespecting Ms Higgins, we must acknowledge that her allegations are just that, and we have not heard if there is an alternative narrative consistent with innocence on the part of the alleged perpetrator.

When one raises these matters there is a tendency on the part of some to say that as there are no charges we can say what we like and Ms Higgins and her supporters are free to pursue a media strategy.  “Let’s not get legalistic” is a shorthand form of this type of attitude and reasoning. This is often coupled with a mindset which says that all persons who make claims of sexual abuse are to be believed and therefore they are “survivors” or “victims”.

These stances and attitudes are problematic to say the least.  The mantra of the #MeToo movement that women must be believed when they make allegations of sexual abuse, which Opposition Leader Anthony Albanese appeared to reflect with his statement this week “I believe Brittany Higgins,” needs to be challenged.

Helen Lewis, writing in The Atlantic in May last year rightly observed that :“Believe women” has evolved into “Believe all women” or “Automatically believe women”. This absolutism is wrong, unhelpful and impossible to defend. The slogan should have been “Don’t dismiss women”; “Give women a fair hearing”; or even “Due process is great”.

As Lewis points out we should, however, believe them when thousands of women tell us that there is a problem with sexual aggression in our society. It’s just individual allegations and claims have to be judged on their merits.  So let’s make sure we do that in how we frame Brittany Higgins’ case.

Stepping back from passing judgment, or forming a hard and fast view as to the veracity of events, is important because fair trials matter.  The media and the community generally via social media outlets, have a responsibility to ensure that if there is to be a trial by jury in this case, the risk of contamination and influence on potential jurors is reduced as much as possible.

Saturation media that is hostile to an accused and uncritically believing of the accuser heightens the risk that it is virtually impossible for there to be citizens who have not formed a view, even subconsciously, about the case before hearing any evidence. The case of Cardinal George Pell is a salutary lesson in this respect. While we will never know what influence the relentless hostile media towards Pell in the lead-up to his trials had, a commonly held view among experienced lawyers is that if his trial had been judge alone he would have been acquitted, and not had to fight all the way to the High Court.

If, after Ms Higgins provides police with a statement and an investigation ensues, charges are laid against the person she accuses of raping her in 2019 then no doubt his name will become known to the media and the community generally. The alleged perpetrator has already been painted, by virtue of Ms Higgins’ account, as a monstrous individual and rapist. He has also been described as a powerful male who has “got away with it”. In other words, in the minds of many in the media and the community, he is not an accused person but a stereotype of the privileged male sexual predator.

Such a description and image may be accurate or it may be grossly unfair and simply wrong. We do not know because we have not heard or read any version of events that happened in that ministerial office in the early hours of a Saturday, other than the detailed particulars provided by Ms Higgins in media interviews. We should suspend judgment because the individual is not charged with any offence at this point and if he is, he is of course entitled to that bedrock principle of the rule of law, the presumption of innocence. Again, we must all ensure there is great caution in reporting about this person.

Ms Higgins has been described as brave by many.  She is because she has rightly lifted the lid on the callous and ham-fisted dealing with a serious allegation of sexual assault. But once she goes to the police, which she intends to do, the criminal justice process must be allowed to take its course. Trial by media, campaigns for and against Ms Higgins and the alleged perpetrator on Facebook, Twitter and other fora, and public commentary by influential voices such as politicians, should cease when this occurs.  If it does not, then a fair trial is placed in jeopardy.

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