This was published 3 years ago
What a difference a decade makes to reporting claims against powerful men
Kathy Sherriff didn’t know the woman who claimed she was raped by Christian Porter. She hasn’t read the details of her allegations or listened to the Attorney-General’s denials. But she believes her, “without a shadow of a doubt”.
“I know for an absolute fact – as do [the] one-in-five women and one-in-20 men who have been raped – that this woman is telling the truth.”
Kathy Sherriff says she was raped by Bill Shorten at a Young Labor camp in 1986. Victoria Police found Shorten had no case to answer.Credit: Elise Derwin
Sherriff can’t know. Not for certain. Not when the woman is dead and the NSW Police has abandoned its investigation.
Her belief that victims should be listened to and believed is a catchcry of the #MeToo movement, a social, political and legal upheaval. In the short years between Sherriff accusing then Labor leader Bill Shorten of historical rape and the treatment of Porter’s accuser’s claims, there has been a seismic shift in how prominent men accused of rape are treated by the media and political class.
Depending on where you stand, it is cause for hope or deep unease.
Sherriff accused Shorten of raping her at a Labor Youth Camp in Portarlington in 1986 when she was 16 and he was 19. Victoria Police investigated her claims in 2013 and did not find sufficient evidence to support criminal charges against Shorten.
Sherriff has never understood why. At the time, journalists approached her story with a high degree of caution, as legally risky and politically fraught.
When The Australian newspaper first revealed in November 2013 that Victoria Police were investigating a historic rape allegations against a “senior Labor figure,” the report ran on the front page beneath the fold; a broadsheet spot reserved for good stories but not the most important news of the day.
There was little follow up, apart from some mentions on obscure websites. There was no demand for Shorten to out himself or to step aside while the matter was investigated. Nine months later, after Victoria Police informed him that no charges would be laid, Shorten identified himself as the Labor figure and said the allegations had been vigorously investigated and that there was “absolutely no basis” to them. Prime Minister Tony Abbott said the matter had been dealt with and “I don’t think there’s really anything more to say about it”. Shorten led Labor to the next election.
That response bears no resemblance to the convulsion in national affairs in the week since the ABC reported a cabinet minister was accused of a rape in an anonymous letter referred to the Australian Federal Police.
When Porter called a press conference on Wednesday to out himself as the cabinet minister, he compared his treatment with that of Shorten and vehemently denied the allegation against him.
“There weren’t any calls for him [Shorten] to stand down or public reporting of anonymous, unsourced, untested material designed to try somebody in public while they are duty-bound to remain silent,” Porter said.
“Indeed, when something similar happened to the former leader of the opposition, everyone followed the accepted process.”
The stories of these two women have similarities and differences. Both centre on allegations of crimes from more than 30 years ago, when they were 16 and those accused still teenagers.
Both women, for most of their lives, carried the burden of what they say was done to them while their alleged assailants went on to have prominent careers in politics.
Attorney General Christian Porter denies allegations he raped a member of his high school debating team when he was 17 years old. Credit: Trevor Collens
Porter’s accuser last year took her life without providing a statement to NSW Police. Sherriff provided multiple statements to police and now questions why she bothered. She survives on a disability pension.
There are important differences. Sherriff’s claims were investigated by police. While Porter’s accuser met with police, she never made a formal statement which meant that a formal investigation could not proceed. The media coverage of Porter and Shorten, and the political response, could not have been more different.
Greg Barns, a barrister who advocates for the rights of asylum seekers, is no friend of Christian Porter. He is alarmed, however, at what he describes as a mindset that has taken hold in recent years which assumes all victims of sexual assault are telling the truth and of the zeal with which some journalists and lawyers are prosecuting their cases.
“In the Shorten case it was a very restrained atmosphere,” Barns says. “There was a reluctance to report it and the media was rightly circumspect, as one should be whenever serious criminal allegations are levelled against anyone. The difference now, in the case of Porter, it has been a relatively unrestrained attack on him with an implied reversal of the onus of proof.
Greg Barns SC says a ‘dangerous mindset’ has emerged which threatens the fundamental rights of people accused of a sex crime. Credit: Eve Fisher
“The #MeToo movement has done a very good job of making sure the legal system is more receptive of victims of sexual abuse. However, we must be careful that in doing that, we do not jettison very important protections that a person who is accused must have, should have and in any civilised legal system, does have.″
Barns asks whether, in the summary justice meted out on social media, Porter is being condemned as much for who he represents – born-to-rule Tories who populate high school debating teams and government front benches – as what he did or didn’t do 33 years ago. In this, Barns sees traces of the campaign run against George Pell who was ultimately acquitted of historical sex offences.
Michael Gawenda, a respected former editor of The Age, is also troubled. He says there is a lack of care in much of the reporting about Porter and questions why important facts, such as Porter being only 17 at the time of the alleged rape, were downplayed or omitted.
“The reporting keeps referring to her being 16 and him being a cabinet minister. The fact is they were two school kids. Isn’t that relevant information? Why hasn’t that been made clear throughout all the reporting?
“Everyone, not just journalists, have accepted this mantra that victims have to be believed. Once you cross that Rubicon, there doesn’t even need to be a court case; the decision has been made. I think that is a huge problem. What has happened with Porter shows this is not where we can stay.”
Michael Bradley, the lawyer who helped Porter’s accuser in the months leading up to her death, sees things differently. He says the restraint adopted by the media and political class towards the Shorten allegations was part of the problem faced by sexual assault complainants.
“Things have changed dramatically since then,” he says. “There is the social media dynamic in that and the gloves coming off. There is very little restraint.
“The bigger shift is what used to underline most of that restraint; the victimisation and silencing of women. That is increasingly no longer being accepted, particularly by women and by society as a whole which is losing its tolerance for brushing these things under the carpet.”
Michael Bradley of Marque Lawyers helped the woman who accused Christian Porter of rape bring forward her allegation.Credit: Michele Mossop
The #MeToo push for all victims of sexual assault to be believed has been broadly adopted by all sides of politics. Scott Morrison’s use of it in 2019 has been played on a loop for the past three days. “It’s important that their stories are believed and that they that if they come forward their stories will be believed,” the Prime Minister said.
Bradley says if the notion was taken literally, the presumption of innocence would cease to exist and the onus of proof would be reversed in sex crimes. “That is not a tenable legal position and not really what anyone is sensibly advocating,” he says.
We have to remember where it is coming from, which is essentially a reaction to the systemic obstacles that victims have always faced and still face in bringing their complaint forward and trying to get justice.
“When we say ‘I believe you’, it is not literally ‘I believe a crime has been committed and the person you say did it should go to jail’. It is respecting the experience that this human person has had and what they feel or believe about it and starting from that standpoint rather than the one that says ‘well, prove it’.”
Porter is refusing to quit as Attorney-General and Morrison is refusing to commission an independent inquiry into his fitness to remain in the post on the grounds that to do so would undermine the rule of law.
Bradley, the managing partner of Marque Lawyers, says this conflates criminal law concepts with a matter that, following this week’s decision by NSW Police to close its investigation into Porter, no longer has any bearing on the criminal justice system.
For Kathy Sherriff, such arguments feel arcane and distant.
She trusted the justice system. She told her story to Victoria Police before it was reported in the media. She provided them with names of other witnesses who she said could support elements of her story. Her hopes rose when detectives interviewed Bill Shorten, then crashed when the Office of Public Prosecutions reviewed the evidence gathered by police and assessed it as unlikely to secure a conviction.
That decision was painful for her. Police have closed their investigation and refused a Freedom of Information request by Sherriff to access her file so she can prepare a civil claim.
When the story of Brittany Higgins broke two weeks ago, Sherriff was inspired to put her allegations forward again. She had previously petitioned senior Labor and Greens politicians. This time, she wrote to Liberal MP Sarah Henderson, recounting the harrowing details of what she says happened to her at a Young Labor camp in Portarlington a lifetime ago.
It will go nowhere.
For help in a crisis call 000. If you or anyone you know needs support, you can contact the National Sexual Assault, Domestic and Family Violence Counselling Service on 1800RESPECT (1800 737 732), Lifeline 131 114, the Suicide Call Back Service (1300 659 467) or Beyond Blue 1300 224 636.