Between here and justice
Warning: This piece contains references to sexual assault.
On any single day, in any given hour, I swing between two poles. One is defiant optimism, the other abject hopelessness. There is compelling evidence for each condition. Tides and winds are turning, converging; maybe when we marched on Monday we really were taking part in a shift. But then there’s the comedown: the re-examination of the simplicity of the four demands of the March 4 Justice and the realisation they’ve been met by silence from the government.
For a long time, many of us have considered this a generational problem and took solace in that. But to read Chanel Contos’ petition and the accounts of rape and sexual assault thousands of high school boys are perpetrating against their peers right now is to realise the pipeline of power and privilege is still flowing, steadily, in the same direction. History repeats.
Sex Discrimination Commissioner Kate Jenkins is tasked with running an inquiry into Canberra’s toxic workplace culture, a reassuring sign the findings will be independent of party politics. Yet her previous 55 recommendations from the Respect @ Work report still sit on ministers’ desks in Canberra, not responded to after more than a year. In Queensland, a year on from the murder of Hannah Clarke and her three children, the Palaszczuk government has announced a huge new taskforce and inquiry into coercive control and the experiences of women trying to access justice. But service providers and advocates are still burned from the Queensland Law Reform Commission stating in June 2020 that the effects of rape myths were “overstated” and that the state’s consent laws didn’t need reform. In New South Wales, the police commissioner thinks he’s helpingby suggesting that an app – where sexual partners sign a digital waiver before intercourse – could help solve problems with establishing consent.
What is happening feels like a cyclone: erratic, forceful, ricocheting between cities and generations and through our phones onto the streets. It misses entire communities and devastates others. Some grassroots campaigns can explode while others, often those without a white woman as its public face, struggle for media attention and funding.
As Dhanya Mani wrote in The Saturday Paper a month ago, “We have a prime minister who’s told us he did not care what happened to us until his wife told him to imagine a white woman was his daughter; as a woman of colour, I’m fairly certain it’s impossible his limited imagination could ever stretch far enough to consider the needs of anyone with pigmented skin.”
As this reckoning spins out from parliament, friends call each other and ask, “What the fuck is happening?” Maybe every generation has believed at some point they are watching something special happen. I no longer know how to be optimistic without worrying I’m being naive. What is just more noise, and what is real progress?
Christian Porter is one person in the eye of this storm. Hours before the marches began on Monday, the attorney-general launched defamation proceedings against journalist Louise Milligan and the ABC. That the country’s first law officer is suing the national broadcaster speaks to the stakes and scale of this reckoning. Yet Porter doesn’t have to step aside for an actual investigation or when he enters into litigation that presents a clear conflict of interest with his duties.
Who else could get away with something so bold and brattish? I wish all survivors could hand off the majority of their workload – their Sunday shifts and their overtime – while they were going through an investigation or trial. I wish women trying to get away from their abusive partners could get paid leave for their mental health.
I remember listening in to a webinar last year run by the Australian Law Reform Commission (ALRC) and the University of Sydney, which featured a panel of experts discussing the potential for a future ALRC inquiry into reform of defamation law. One of them, Bruce McClintock, SC, of the NSW Bar, expressed scepticism about the need for a public interest defence against defamation. In the question time someone asked whether survivors of harassment and assault were being silenced by current defamation laws. “If you tell the truth, you’ve got nothing to fear,” McClintock replied. Yet it was right there on page 565 of the Jenkins’ Respect @ Work report to the government: defamation laws have “a chilling effect on media coverage of this issue, and consequently, public discussion and scrutiny”. Did anyone with power to enact change actually read Jenkins’ findings? Is anyone listening?
On Monday, as Brittany Higgins spoke outside Parliament House in Canberra, her former workplace, the scene of her alleged rape by a colleague, the prime minister cut off the leader of the opposition’s reading of Higgins’ speech in the chamber. Instead of answering to the petition presented to him, Morrison ended question time early, gathered his things and walked out of the house of representatives, trailed by his front bench.
While the prime minister’s critics have taken to saying he has a “tin ear”, he maintains he listens to what he calls “women’s issues”. He then suggests that women fleeing domestic and family abuse dip into their super to make getting away from their abuser a financial possibility. According to the government’s own Australian Financial Security Authority, the average super gap between men and women is more than $40,000. In many low-income families superannuation is identified as one of the only significant assets for the couple to split, yet most states and territories don’t have clear processes for women fleeing from unco-operative partners to find out how much their partners have and get their share.
The cyclone hit me, really and truly, last Sunday morning, when I woke up and saw that The Australian had published the diaries of the deceased woman who’d accused Christian Porter of rape. I flew into a rage. I panicked. I cried. I thought of my own diaries. All the weird and terrible things I’ve written in them, trying to dump them outside of my brain so I might sleep without nightmares. Over the years I’ve lost count of how many hurting women have contacted me, wondering how to start telling their own story, and I’d advise them to write it in a diary first. To put it down “where nobody else will ever see it”. But here was this woman’s private spiralling sentences, her place of refuge, published for everyone to see and pick apart. Are we allowed no space to breathe? At the Sydney march on Monday, writer and family violence advocate Jess Hill spoke of this article and named journalist Peter van Onselen. Shame! came the reply.
It is a double bind. If you’re one of the one in five women who’s been raped or assaulted since you turned 15, you’re significantly more likely to struggle with mental health issues. But if people find out about these mental health issues, they are often used to cast doubt on your credibility and reliability. In my own diary, 10 years ago, I once wrote: “What happened on that trampoline?” and traced over and over and over the words in pen. Not because I didn’t know what happened, but because I was struggling to understand what happened. Certainly that’s not how anyone else would interpret that scrawl. But it wasn’t written for anyone else. It was written for me.
In my home state of Queensland, there may be cause for cautious optimism. For the first time, one person holds the portfolios of attorney-general and minister for women. And Shannon Fentiman has big plans. A 10-person taskforce has been put together, chaired by retired president of the court of appeal, Margaret McMurdo. It will look first at the best form of coercive control legislation, and then holistically at women’s experiences with the criminal justice system.
As coercive control legislation becomes a possibility, however, there is also growing resistance to the presumption that more policing and more laws can answer social problems. Not everyone feels they can call the police if they are in danger. In particular, Aboriginal and Torres Strait Islander women are more likely to hold real and valid fears of police.
Hannah Clarke, a white woman with a supportive family, pulled the levers available to women fleeing violence: she reported her husband to the police, she tried to leave. But still she suffered years of significant abuse. At the time of the murders, her ex-partner was due to appear in court on domestic violence charges after he assaulted her and kidnapped their daughter. The man was known to police and known to be a danger, and he still wasn’t stopped. It is a fair question to ask: what good would more laws do when even a woman like Hannah – with all the resources of the state available to her – was not helped?
The Queensland taskforce’s chair, McMurdo, said the group would consider the experiences of criminalised women and women trying to access Legal Aid. The work of organisations such as Sisters Inside has repeatedly demonstrated how many women aren’t afforded basic respect and dignity because of incarceration. It’s not a coincidence that survivors of abuse and assault, and Indigenous women, are significantly overrepresented in demographics of incarceration. And while the taskforce includes Indigenous and Muslim representation, it still lacks explicit sex worker or queer and trans representation.
McMurdo said the review would build on the important work done in 2015 with Quentin Bryce’s “Not Now, Not Ever” report. But she said it would also build on the Law Reform Commission’s consent law report, which found there were no problems with consent laws in Queensland and proposed legislation that simply codified pre-existing case law precedents. It was a frustrating disappointment for most service providers, such as the Queensland Sexual Assault Network and the Women’s Legal Service Queensland.
In NSW, after a lengthy and considered review, the state couldn’t bring itself to recommend a proper, affirmative definition of consent. Saxon Mullins, the woman whose case was handled so appallingly by the courts that her public advocacy led to the matter being reviewed, is now a co-director at the Rape and Sexual Assault Research and Advocacy Centre. Mullins said the NSWLRC’s final report was “disappointing” and did not go far enough. In Tasmania, for example, an accused cannot rely on their “mistaken belief” that a complainant was consenting unless they took reasonable steps to ascertain consent. The NSWLRC final report said “we are concerned about the potential effect of such a requirement on the rights of accused persons” and recommended the mistaken belief excuse continue to be available even where defendants could not indicate they’d said or done anything to find out if the complainant was consenting.
Sometimes reviews work, often they don’t. In mid-2018, the Australian Human Rights Commission was tasked with examining sexual harassment in the workplace. Jenkins handed the Respect @ Work report to government in January 2020. Brittany Higgins’ traumatic experience inside then-Defence Industry minister Linda Reynolds’ office occurred in March 2019. Multiple other women have come forward with allegations about the same former LNP staffer Higgins identified. It is fair to suggest that the announcement of a review is insufficient to deter potential offenders.
So, the question remains: where does this energy go? Even cyclones peter out. They arrive, fuelled by warm waters, but then the land slows them. The closer they get to the poles, and to cold water, the faster they weaken. Movements tend to slow when they hit structures. Individuals may, occasionally, be brought down; but they are often replaced, and the systems continue.
Maybe these marches could change the structure. For some strange reason, for example, politicians are not covered by the Sex Discrimination Act. Neither are judges nor other statutory appointees. That means people who work in these spaces are neither protected nor held accountable. A 1992 review of the exemptions in the Sex Discrimination Act recommended the act be amended so state and territory public servants were included. Kate Jenkins also recommended this in 2020. Finally, it has fallen to independent MP Zali Steggall to introduce the move as a private member’s bill. It has not been voted on.
While this was all happening at the federal level, a review from the South Australian parliament by the Equal Opportunity Commission discovered that a quarter of the respondents said they’d been sexually harassed while working at SA parliament. The report cites a culture of “minimising, normalising and keeping quiet”. One person was told, “You’ll be a rat if you report anything.” That review was ordered last year after Liberal MP Samuel Duluk allegedly slapped a woman’s bottom at a Christmas party. He was charged with assault and is set to stand trial in June. An outcome that is exceedingly rare.
Imagine if you really had power. Imagine, for a moment, all the positive differences you could make if you were attorney-general, or a judge on the High Court, or a professor. Imagine the legacy you could leave, the minds you could shape. Then imagine abusing that position to put your hand on the thigh of the young woman who’s afraid upsetting you will torpedo her career.
People in Canberra told the ABC under the condition of anonymity that they’d seen women get “managed out” of roles while serial harassers were protected. Dyson Heydon’s behaviour was responsible for several promising young women leaving the legal profession. Books such as Emotional Female, a recently released memoir by doctor Yumiko Kadota, show how this pattern of abuse plays out in medicine, too. There is nowhere a woman can work without risk of harassment. The temptation with social justice issues is to rely on the mere passage of time as portent of positive change. If we were tempted to think these men are all simply products of their generation, then we are choosing to ignore the pleading and yelling of girls in schools right now.
It keeps happening, and each time we’re back to this battle of competing interests: the rights of the accused versus the rights of the accuser. We’re back to the tired presumption that it’s a zero-sum game – that by increasing access to justice for complainants, we automatically must be shaving slices off the rights of the defendants. He said, she said. An oversimplification of an extraordinarily complex process.
People ask me how we can “believe survivors” and maintain the “presumption of innocence”. It’s infuriating. The “presumption of innocence” is a legal principle upheld during investigations and trials to make sure that the wrong people don’t end up in jail. To be a person who “believes survivors” is a philosophical outlook, a moral position that informs the way you treat and respect the people around you. If you are someone who believes survivors, then you are someone who wants to remove all possible barriers for those survivors to make police complaints or access alternative dispute resolution services. If you decide to believe survivors, then you’re someone who thinks it’s unacceptable to make them wait years and years to know whether the person they’ve accused is even going to be charged or not. If you believe survivors, you want to help them heal and get whatever “justice” looks like to them. I believe in the legal presumption of innocence and I believe survivors. Every single advocate I have ever met feels the same.
What I think people actually mean to ask me, when they pose this conundrum, is to whom, in our daily lives, do we give the benefit of the doubt? That is the heart of the problem people grapple with. Because nine out of 10 survivors never even report the crimes, the “presumption of innocence” legal principle is rarely actually enlivened. Ten out of 10 times what people want to know is whether to believe the guy or the girl in their friendship group.
What people want to know in these matters, when nothing can be “proved” the way they’d like, is whether they really have to make a hard decision and acknowledge that the man they know could be capable of something like what this woman is saying. Do we give her the benefit of the doubt, knowing that 20 per cent of women are targeted for these crimes, or do we give him the benefit of the doubt, knowing that it is exceptionally rare for women to lie about these things, and perpetrators almost always deny their behaviour? If this makes you uncomfortable, then congratulations, you have a beating heart and perhaps a conscience.
Fentiman and McMurdo both told me they believe something is happening – a kind of momentum and energy – that they are determined to harness. The polls are showing a decline for both Morrison and the Coalition, significant if only because a change in attitude from voters sends a message to all politicians that “women’s issues” are issues of national significance.
Christian Porter’s defamation suit will likely drag on for months, perhaps to the next election. Will there still be this media saturation then? Where does all this anger go? At the marches this week, I saw so many signs that were some variation of: “I was here in the ’70s, I can’t believe I still have to protest this shit.” That’ll be me in another 10, 20, 30 years. Hopefully that will be you, too. Hopefully we can wrestle feminism back from the clutches of the white corporates who cry on camera while sniping at “lying cows” and ignoring colonialism’s ongoing damage.
Hopefully the signs don’t always rely on biological signifiers such as ovaries, alienating trans and intersex allies who need more support. Hopefully this next review in Queensland comes good. Hopefully the government finally acts on Kate Jenkins’ recommendations.
Hopefully, hopefully, hopefully.
National Sexual Assault, Domestic and Family Violence Counselling Service 1800 737 732.
Lifeline 13 11 14.
This article was first published in the print edition of The Saturday Paper on Mar 20, 2021 as "Between here and justice".
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