QED

Who Next Will Be Accused?

Dinesh D’Souza, an American commentator, recently coined the phrase ‘identity socialism’ which describes the current politics of race and gender. These politics aim at condemning, silencing and banning views and opinions which are incompatible with the current agenda of our left-wing intelligentsia. A good example is the destruction of historical statues of people who are deemed to be racists. The current banning of Dr Seuss’ books, for example by eBay, also provides evidence of a disturbing trend to rewire our society. In Australia, ‘identity socialism’ is particularly evident in the current media focus on gender issues.

This focus was on display on Wednesday afternoon, March 3, when the Attorney-General, Christian Porter gave a highly anticipated news conference. The news conference concentrated exclusively on a well-known story: he had been accused of horribly raping a 16-year-old girl in Sydney in January 1988, when both participated in a debating competition The allegations were contained in a detailed, but anonymous letter, which had been sent to four politicians. The Attorney-General strenuously, absolutely and categorically denied the allegations made in the 33-page letter. He stated, over and again, that the alleged event never happened; at the time he was just a teenage boy who participated in a debating competition.

The complainant sadly took her own life on June 25, 2020. The police closed their investigation into the complaint because there was no admissible evidence that could be relied upon in a prosecution. The police further revealed that on June23, 2020, two days before the complainant took her own life, she dropped the complaint, insisting she could not proceed with it for medical and personal reasons.

The Australian Council of Trade Unions, the parents of the complainants, the Opposition leader, and various organisations have demanded an inquiry, possibly chaired by an independent non-parliamentarian. However, such an inquiry would inevitably be an extra-judicial inquiry because the legal avenues of investigation and prosecution are no longer available in this case. In effect, they demand that the Attorney-General be tried in the court of public opinion, which assumes that a successful man, the highest judicial officer of the land, must be guilty of the allegations, without however being able to provide hard facts. At his conference, the Attorney-General argued that, in the court of public opinion, he would be effectively asked to prove that an alleged event never happened. An impossibility! Such an approach would involve the reversal of the onus of proof in criminal cases. The proposed inquiry looks like the 21st century equivalent of the Spanish Inquisition of the 15th and 16th centuries when many people were convicted and executed because they held views which the religious policymakers of the day could not fathom.

What do we make of all this? It is fair to say that we will never know whether the alleged rape happened. The sad result of this brouhaha is that a person’s career will be clouded forever by an allegation the veracity of which cannot be proved or disproved. So, one wonders what could be achieved by an inquiry?

A lot has been made of the detailed nature of the 33-page allegation but that, by itself, is no guarantee that the event took place. There are, in Australia, other recent examples of detailed allegations of sexual abuse which were proven to be unreliable and false, even if they were relied upon to convict the alleged perpetrator of the abuse in first instance. It is possible, but perhaps unlikely, that the detailed nature of the allegations is the result of fertile imagination and probably worthy of the ingenuity and creativity of a successful novelist when constructing a story.

In Porter’s case, the complainant had originally told her story to the NSW police in 2019, but the police closed their investigation on March2, 2021, because there was no admissible evidence to charge anyone with the alleged rape. In this context, many questions come to mind. Why did the complainant wait so long, until 2019, to air her grievances? Why were the allegations not made at the time of the alleged offense? Of course, it can reasonably be argued that a 16-year-old girl would not have the courage to make a complaint, fearful that she might not be believed, or she might have been guilt-ridden to take it further at that time. She may have felt that she would not be supported. According to reports, the complainant’s mental health was fragile. But why did the complainant not pursue the matter later, when she reached adulthood? Perhaps, she wanted to pursue a career and might have thought that any allegations of this nature would have severely hampered her efforts at finding suitable employment?

Why did the complainant specifically ask the police not to proceed with the investigation before taking her own life? Is it because the alleged offence never happened? Or because she could not cope with the stress that would be generated by an investigation? These are questions that cannot be answered with confidence in the court of public opinion.

Why should the strenuous denials of the Attorney-General be believed? To decide guilt or innocence, psychologists and those responsible for analysing the body language of a person will undoubtedly come up with their wild, sometimes accurate, but sometimes outlandish, conclusions.

In his news conference, Porter repeatedly said that he would not resign because it would set an unhealthy precedent. It would give complainants a power to achieve purposes which cannot be achieved through regular legislative and judicial approaches. This is because, if it were possible to remove a person by adopting the convenient device of making a serious, even an uncorroborated allegation, it would become possible to wreck the lives and livelihood and careers of any person. A persistent demand to step aside would constitute a spectacular violation of the rule of law which requires the maintenance of the presumption of innocence until proven guilty.

And yet that is precisely what is happening in our society. It is convenient in our #metoo world to accuse people of sex crimes or hate crimes. It has created a climate of fear, cynically promoted by politicians of all stripes when they overuse the “I listen, I hear, and I believe” mantra. Especially, the “I believe” part of the mantra is problematic because it assumes an accused person must be guilty when allegations of improper conduct are raised by complainants. This, in turn, constitutes an egregious erosion of the rule of law. Of course inappropriate sexual behaviour should not be tolerated! But it is equally necessary to ensure that complainants and accused respect the rule of law in their respective endeavours.

The Attorney-General’s tribulations are a reminder that the rule of law can easily be distorted and treated as an unnecessary luxury which prevents policymakers and trendsetters from creating their vision of an ideal society. The long-term consequences of this ongoing saga are predictable: a saga without winners and with many losers, especially if it results in the further erosion and demeaning of the rule of law.

Gabriël A. Moens AM is an Emeritus Professor of Law at The University of Queensland and a former colleague of Christian Porter at Curtin University School of Law

15 comments
  • Greg Williams

    We don’t know who will be next accused, but you can be guaranteed it will be a male, successful, white, and conservative.

  • Peter Smith

    “It is fair to say that we will never know whether the alleged rape happened.”
    No, I don’t think it is fair to say this. Just as I don’t think it is fair to say that the world will never know whether I tripped an old woman up and stole her purse when I was a teenager. It would be a baseless and ridiculous charge, necessarily without a tad of evidence to back it. People of common sense should know that I didn’t do it as equally they should know that Porter didn’t do it.

  • grpalmer1911

    As Porter was a Minor at the time he would have been protected by the Children’s Court if it had gone to trial, so why is he now subject to public exposure / abuse as an adult?
    Should not the matter still be treated as an alleged offence committed by a Minor today?
    Does this public exposure set a legal precedent for all future cases ?

  • grpalmer1911

    Labor Prime Minister’s Bob Hawke’s daughter claimed she was raped by one of his Labor Party Comrades and Hawke made her cover it up for the “good of the Party” so he could be PM.
    Just who was the rapist who got away with it, and who else inside the Labor Party knew of the rape and helped covered up the rape ?
    Time for some public disclosure ? Name names of all involved. Time to call the police ?
    Power without glory.

  • Harry Lee

    Obvious:
    The Left is conducting full assaults on all fronts against persons and entities of the non-Left.
    The next federal election is coming up, and these scummy and highly effective assaults by the Left on the non-Left will increase.
    Plus, the Left has long been undermining the rule of law that made Western Civ as useful as it has been in all areas of human flourishing.
    Treating the Left as if it is a legitimate and well-meaning factor in a democratic Western society spells death for all Western nations.
    Obvious.

  • Harry Lee

    Speaking of the Left’s assaults on the components of Western Civ:
    Perhaps the work involved is getting to Dan Andrews?

  • Stephen Due

    Perhaps we no longer need courts of law when we have the ABC? The ongoing phenomenon of trial by media, deliberately pursued by the ABC, bears a remarkable resemblance to mob rule. It is more reminiscent of the activities of the Revolutionary Tribunal of 1793 than any process that is likely to deliver justice. In effect it amounts to a kind of media-driven, government-sponsored Reign of Terror. It is a pity that Scott Morrison, forever seeking to avoid doing battle with the enemy, remains officially ”unconcerned’ by this.

  • DougD

    Morrison’s excuse for not engaging with the Left on cultural issues – that wouldn’t create a single job – is starting to look a bit thread-bare.

  • ianl

    >” … the Revolutionary Tribunal of 1793″ [Stephen Due, above]

    Yes.

    But why is this tactic, currently re-established, successful ?

    Because many, many people believe such accusations. Not for them this frippery of “innocent until proven guilty”. Why would she lie, is the riposte so often heard. And no, I’m not an advocate for this; simply pointing out the core dynamics.

    One of the phone videos to surface in London during last year’s ugly BLM protests showed a young man, in the thick of it, astonished when the police contingent suddenly turned and fled. He took a second or two, then yelled: “The West is falling”.

    I do think he had a point. How to arrest this decline is an unknown, and a very dangerous one. Who would have predicted 20 years ago that the internet Luddites (the internet is the devil’s spawn) were prescient in that Big Tech/Big MSM would eventually use it to control the mob ? We all thought that the greatest library ever to exist was a great and wonderfully freeing event …

  • Harry Lee

    Due to the Left’s efforts, the proper rule of proper law has been collapsing for decades.
    Ditto for all institutions that once made the West a place for contributing citizens to lead flourishing lives.
    We. Know. This.
    Will a critical mass of self-reliant, contributing citizens self-organise and self-resource, and conduct a counter-revolution?
    No. Saviour. Is. Coming.

  • Ian MacKenzie

    I agree with Doug D, Coalition managerialism trying to postpone the inevitable drift left clearly isn’t enough. There needs to be pushback otherwise the Culture Wars run right over you, in this case woke feminism in the form of Louise Milligan and the ABC Collective. Why successive Coalition governments have been prepared to put up with a Green-Left national broadcaster, and support it with huge amounts of taxpayer funds over decades is beyond me. A clearer example of self-harm would be difficult to imagine.
    In the inevitable cave-in on an inquiry, the best that can be hoped for is that Bill Shorten’s case be reexamined as well. At least there the complainant is still with us, and has never backed down on her accusation. Strangely Louise hasn’t mentioned her.

  • Peter Marriott

    Minister Porter should not resign or even consider it. There is no such thing as “we will never know if it happened” etc except in someone’s, anyone’s, over active imagination. Of course we know…he did not do it Q.E.D. To pretend otherwise is to make a mockery of all our lives and actions because we just may have done something…….anything. That sort of power of suggestion can be used ad nauseum by any disaffected person, and I have a sneaking suspicion Prince Harry and his wife could be getting perilously close to using it as well, if the nonsense I’ve been reading in this mornings Courier Mail is anything to go by.

  • Tony Thomas

    There seem to be all sorts of “anonymous” people pursuing this witch-hunt. When it suits the media people, they “out” would-be anonymous people on the right. Some minor fringe player publishes the names which are already well-known “insider” info in the press gallery, and then the gallery hacks run pieces quoting the minor player,* thus doing an end-run around the journos’ code of ethics. In this Porter case, I’d like to see all names named other than the alleged victim’s name.
    * This was the simple technique by which the NYT and Washington Post could run the scurrilous Trump “Moscow pee dossier” (funded by the Democrat Party), with a supposedly clear conscience.

  • padmmdpat

    A 33 page letter. That’s rum. It’s either a very detailed description of events that supposedly happened that night or – is it a document that gives every evidence of stalking?

  • jessopt.com

    To padmmdpat: don’t be too impressed by the complainant’s “33 page . . detailed description of events”. I have had a client, who frequently showed me long detailed letters and notebooks outlining his story of being stalked by ASIO, kidnapped and tortured, and floating the idea of commencing legal action against that organisation. His “notebooks” bore some resemblance to the circular letter produced by the complainant in this matter. He was highly intelligent, and at times he was (or appeared to be) quite sane and in control; at other times he manifestly was quite crazy. In his more rational moments he was even capable of admitting that he was delusional.
    TGJ.

Post a comment

You must be logged in to post a comment.