Rape trial by media is a threat to justice

Illustration: John Spooner

When you are being subjected to a public trial — essentially trial by media, thereby forfeiting the ordinary rights of a citizen subject to a criminal allegation — the only tenable stance for a senior cabinet minister is a full statement in the court of public opinion rebutting the accusations.

That will happen very soon. It is in the interests of the minister, the public realm and the Morrison government. The minister’s identity is widely known and will become public in the near future anyway.

So far, only one side of this story is being propagated, based on documents prepared by the victim and her supporters. The allegation concerns a horrific rape in 1988 (when the alleged victim and cabinet minister were youths), the accusation being this crime ruined the woman’s life with the recent letter even claiming the woman “took her own life because of his actions”.

The anonymous letter sent last week to politicians, including the PM, said that in 2019 the woman decided to pursue criminal proceedings against the man, by that stage a prominent political figure. This was a traumatic decision. She assembled her statement, spoke to the South Australian Police where she lived and the NSW Police, the state where the alleged rape occurred. She shared her statement with “numerous friends”, who were supportive.

The letter said the woman had suffered mental illness since 1988 and had attempted suicide on previous occasions. The letter also said: “To her, the risk of killing herself if she did pursue the claim had to be weighed against the risk of her killing herself if she did not pursue the claim.”

Nobody reading the material could doubt the woman’s belief she had been raped. The letter names many friends of the woman, who, it says, believed her account. Central to the current ­dilemma is the time factor and, more importantly, that the woman took her own life.

Scott Morrison says the cabinet minister accused of rape has absolutely denied the allegations. Picture: NCA NewsWire / Gaye Gerard

She spoke to the NSW Police in early 2020 — 32 years after the alleged event — and took her own life in June.

The role of the woman’s friends and supporters has been critical. They seek justice for her and have gone to the media. A narrative has been widely shared that this was a brilliant woman destined for greatness.

The cabinet minister is depicted not just as ruining her life but as then having the brilliant career she was supposed to have had. ­Indeed, the letter said that among contemporaries, the woman was seen as the one “most likely to rise to high political office”.

The implication includes the prime ministership. The psychological grievance is deep — the cabinet minister ruined her life and then had the career the woman could have enjoyed.

The concerns of her parents took a different path. The letter said the parents did not support her pursuit of the rape allegations. “They worried that she may have confected or embellished the allegations due to her mental illness.”

The friends disagreed with the parents. The woman, however, contacted NSW Police hours before her death saying she did not want the investigation continued.

Scott Morrison said the cabinet minister has absolutely denied the allegations. He said allegations of criminal conduct must be dealt with by the police. Obviously, this is correct. SA Police are ­investigating the woman’s death for the state coroner. But the NSW Police, unsurprisingly, announced that they would not be pursuing the matter due to insufficient evidence.

The letter anticipated this situation. Its central argument was for Morrison to have an independent investigation modelled on the High Court inquiry into alleged improper behaviour by former judge Dyson Heydon. This is a misleading parallel.

That inquiry interviewed a number of women about a workplace safety issue concerning sexual harassment. It dealt with the accusers and reached conclusions. But any independent inquiry into the rape allegation will face the same insuperable obstacle the NSW Police faced.

An independent inquiry would be a serious mistake and a bad ­precedent — ministers facing 30-year-old rape accusations being required to face an alternative ­default process because the legal system could not put them on trial. This would constitute a far-reaching step for our politics and our society.

The media has taken up this cry but is clueless about how it is supposed to work or what tests it should adopt. Journalists say an inquiry is needed to “resolve” the issue when it is obvious the issue is not going to be resolved. This is a slogan, not a workable proposal.

It is relevant to raise the Bill Shorten issue from August 2014 when Shorten named himself as the Labor figure who had been investigated by Victorian Police in relation to alleged historical sexual assault. The police found no basis on which to proceed. Shorten then said the claim had been “untrue and abhorrent”.

The political system largely accepted the police decision as the final judgment. Nobody asked for an independent inquiry. On the contrary, then prime minister Tony Abbott said: “It’s a personal matter and he’s dealt with it.” Shorten’s colleague Richard Marles said he “knew” the accusations could not be true. There was no trial by media as we see today.

While Labor had its concerns about the issue being resurrected, Shorten led the ALP at two elections where the allegations were not an issue.

Those days are gone.

Former Prime Minister Malcolm Turnbull has weighed into the alleged rape and suicide of a South Australian woman. Picture: Mick Tsikasvia NCA NewsWire

A striking aspect is the intervention of Malcolm Turnbull. He attacked Morrison with a passion on ABC radio yesterday, claiming he was outsourcing his cabinet decisions to the police. Turnbull said there are two issues — an alleged rape and a death. He questioned whether the woman did kill herself, saying we don’t know “for sure” that it was suicide. Turnbull also said the cabinet minister must name himself and said he probably needed to step aside.

The reality is this issue will be sorted within the political system, and that means by Morrison. The fundamental issue is whether the test is legal or political. Shorten cleared the legal hurdle and also the political hurdle. The cabinet minister will clear the legal hurdle because the case against him lacks sufficient evidence — the real question is whether he can clear the political hurdle.

That depends, initially, upon the strength and credibility of his defence. The public and media should suspend judgment until this is provided.

But the identity of the cabinet minister is going to be revealed in a completely different and febrile atmosphere to that of 2014 when Shorten named himself.

How do we define justice for the woman and the minister? We need to think carefully about creating a situation where the judgment of the legal system is replaced by another judgment – trial by media dressed up as public opinion and public interest.