#MeToo, corroboration and rape law
Dylan Farrow has been waiting an awfully long time for support. She first made her allegations of a 1992 sexual assault by her adoptive father, Woody Allen, in 2014. She has been shunned, disbelieved, her mother accused of coaxing her into the story. She’s told this story before, but now she tells it in the context of a movement. And yet #MeToo is likely not a vehicle of redress or justice that will work for Farrow, because it works off the corroboration of multiple accusers and she is Allen’s sole complainant.
#MeToo has created a boundless public platform for a critical mass of women to speak out about their experiences of sexual harassment and assault, mostly in their workplaces, sometimes for the first time and often after decades of isolation. It was initiated by activist Tarana Burke and taken up as a hashtag by actress Alyssa Milano when the allegations against film producer Harvey Weinstein broke.
The hashtag works as a devastatingly effective informal petition, surely the most far-reaching in human history, with tens of millions of signatories. A unison of incensed women broke their silence. But will we find redress? Is it enough to speak out? Can #MeToo get justice for sexual assault survivors?
Farrow’s decision to revisit her alleged abuse in this context underscores #MeToo’s strengths and limitations, and points to what we need to do next. #MeToo should be a blueprint for rape law reform, but it won’t be unless we harness its momentum and demand loud and clear that prior convictions must be admitted as evidence in sexual assault trials. The corroboration of #MeToo must now be brought into rape trials.
Like countless women and girls disclosing sexual assault, Farrow found no redress in the law. She came up against the usual impediments to Allen being convicted: there were no witnesses; it was her word against Allen’s and it still is. There is no evidence Allen abused Dylan – there so rarely is – whereas there is evidence her mother, Mia Farrow, coached her, most recently in revelations by her brother Moses.
Like many people, I’ve been inclined to believe Dylan because Allen initiated an affair with his partner’s daughter, Soon-Yi, 35 years his junior. However committed this relationship may be now, it started badly. Reprehensibly, in fact. His romantic comedies cast actresses decades younger than the leads Allen has played. Still, these creepy indications are light years from the sexual penetration of a seven-year-old. And what is missing from Dylan’s allegations, unusually, given the opportunistic nature of paedophilia, is the corroboration of multiple accusers.
But even if Farrow were supported by a quorum of accusers, as are Weinstein’s victims, these corroborating accusations would not be admissible in a court of law.
Part of the soul-searching around the heart-rending death of Jill Meagher in Melbourne in September 2012 arose from the revelation that her assailant, Adrian Bayley, was a serial rapist. He had already served 11 years for multiple rapes and at the time of his attack on Meagher he was on parole after serving another eight years’ jail for 16 counts of rape against five women.
Victorian coroner Ian Gray found Meagher’s death could have been prevented if Bayley’s parole had been revoked as soon as he had breached it. Gray named two other women murdered by serial rapists while on parole. The parole system has since been reformed for repeat sexual offenders. But Bayley’s history could only be made public after the lifting of suppression orders in the Victorian Supreme Court. If Meagher had survived and taken him to court, his prior convictions would not be admissible to support her allegation. They could only be revealed at sentencing if her allegations led to his conviction.
The problem is few rape convictions make it to sentencing. The statistics on convictions for sexual assault are farcical and alarming. Of more than 3500 rapes reported to Victoria Police in 2009-10, only 3 per cent of those accused were convicted. And this is out of the mere 15 per cent of sexual assaults that are actually reported to police.
Under-reporting reflects the lack of faith women have in the criminal justice system. They know they are likely to be subjected to insensitive comments from police, often brutal and objectifying cross-examinations of their sexual histories, with little prospect of finding justice. Many have described the experience as feeling on trial themselves and described the process as a second violation. It is a grim irony that victims can be interrogated about their sexual histories, yet the histories of offenders are deemed inadmissible.
#MeToo upended this utterly inadequate judicial response to sexual victimisation. Lawyers can bleat about the presumption of innocence and due process all they like, but until they take in that 3 per cent statistic for convictions they will fail to grasp why #MeToo is a strategy of last resort for women who have, frankly, showed remarkable restraint. How it has not come to vigilante mobs is beyond me.
#MeToo stands accused of precisely this – vigilante feminism. Recent aired accusations have sparked agonising debate about exactly how we define sexual assault. In the case of Aziz Ansari, accused of sexual misconduct, hesitation comes from the crux of #MeToo. The accusation against Ansari, like that against Allen, is uncorroborated by other accusers. And if there is one thing #MeToo has exposed to light, it is that offenders are predatory, opportunistic and arbitrary. More than 160 women spoke out at the sentencing of United States Olympic team doctor Larry Nassar, yet isolated complaints years earlier were dismissed.
This is not to discredit Farrow or Ansari’s accuser, or to suggest all offenders assault multiple women. It is to ponder why #MeToo has been unable to assimilate these allegations with ease. We need to consider, too, that if Jill Meagher had lived, her #MeToo would have been lost in the chorus, a drop in the ocean of the millions of tweets it garnered. It would not have alerted other women to Bayley’s threat. Why? Because her assailant was not famous. For women whose allegations are uncorroborated, and for victims whose assailants are not notable, #MeToo is not working. Meanwhile, the legal system is barely working for anyone but rapists, who can look up the stats and swagger on to their next victim.
What we can understand from #MeToo’s galvanising power in outing celebrity perpetrators of multiple assaults is that corroboration has been key to its success.
These women complained again and again, to their perpetrator’s superiors and sometimes to police, and were ignored time and again. It took a critical mass of them armed with a hashtag before they were heard.
Tellingly, this corroboration has led to investigations and yet in the dilatory grind of the law no charges have been laid, even against Weinstein. Criminal cases have been opened against him in Los Angeles, London and New York, after a 2015 case was dropped due to lack of evidence. The LA and New York City district attorneys are yet to decide whether they will proceed to trial on only three cases, and the same number are being investigated in London. Lawyers acting for the women anticipate pursuing civil lawsuits, precisely because inclusion of the defender’s character may allow for the scores of other complaints to be considered. They seem to hold little hope for criminal cases to go ahead.
Dr Ian Freckelton, QC, has led a City of Melbourne investigation into Lord Mayor Robert Doyle but no charges have been laid. The investigation into actor Craig McLachlan was a joint Fairfax–ABC initiative, as was that into TV presenter Don Burke. More than 500 women have come forward, naming more than 65 men. Channel Nine failed to act on a number of complaints against Burke, protecting his behaviour for decades. There is still no word on charges. McLachlan has vowed to fight his “character assassination”. Two Rocky Horror Show stage musical cast members have made formal complaints about McLachlan to Victoria Police. It’s unlikely he, or Burke, or possibly even Weinstein, will ever have to face a court of law. Yet indecent and sexual assault are crimes. There are laws. And with a 3 per cent conviction rate, they are doing too little too late for millions of women, other than quarantine them in a sort of legal isolation that is lived by so many as a purgatory of shame.
#MeToo’s corroboration of multiple accusers offers women a chink of light in this judicial impasse. In this entirely untested extra-legal and post-hoc process, millions of women have made abundantly clear that corroboration is solidarity. The onus is now on law reformers to listen to this core articulation of #MeToo – embrace corroboration and change rape law to admit prior convictions as evidence. Learn from this movement, and expand the 3 per cent.
This article was first published in the print edition of The Saturday Paper on Feb 3, 2018 as "The courts and public opinion". Subscribe here.