Monday, 25 August 2014

Drawing a line under entitlement

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Last week Bill Shorten went public with one of the worst kept secrets in Australian politics – that he had had been under investigation for rape since September last year.

The investigation concluded with police handing their findings to the Office of Public Prosecutions (OPP), who found that there was no reasonable chance of conviction. Shorten’s statement stops just short of claiming that the police investigation exonerated him, but he did say that “the claim has now been thoroughly and vigorously investigated by the police, as is entirely proper. I fully cooperated to clear my name and that is what I’ve done.” He also said repeatedly that “the decision speaks for itself” and that he is “entitled to draw a line under this”.

There’s a world of difference between “no reasonable prospect of conviction” and an investigation that “cleared his name”.

Rape allegations are the least likely of all crimes to be reported, charged, tried and convicted. One of the simplest of the (many) reasons for this is that the standard of proof required for a criminal trial is “beyond a reasonable doubt”. In a rape trial, this doesn’t mean just proving that sex took place, it means that the OPP must prove, beyond reasonable doubt, that the victim did not consent and that the defendant knew the victim did not consent.

The woman involved claims that the rape happened in 1986, but the first time the claim was made public was in a post on Kevin Rudd’s Facebook page in September 2013. While it is very common for victims of sexual assault to wait years, even decades, before being able to speak publicly about what happened to them, the delay does make conviction more difficult.

With no physical evidence and no witnesses, the evidence is only her version of events versus his. However persuasive her evidence might be, it would be almost impossible to provide proof beyond reasonable doubt under these circumstances. This does not, in any way, mean that her allegations are not true.

So Shorten’s claim that he has “cleared his name” or that the police investigation did so is highly misleading.

The original claim made on Facebook:

shorten rape claim


And again in more detail

 bill shorten rape allegation

(with thanks to kangaroocourtofaustralia for the screenshots)

There are no witnesses to the alleged rape, however The Tribune has been told that there was a reliable hearsay witness who was told about the events of that night immediately after it happened. Victoria Police media unit was unable to comment on the veracity of this or any of the other evidence against Shorten.

As much as it is true that the allegations were not disproven, it is equally true that they have not been proven. Suggesting that a simple claim of wrongdoing must indicate fault is not just dangerous, it is inimical to one of the most basic tenets of our system of law – that everyone is innocent until proven guilty. Shorten should not, must not, face any legal repercussions for an unproven allegation.

Does that mean though, that he is “entitled to draw a line under this”? Shorten himself brought it into the public arena (albeit only because he knew The Australian was going to do it if he didn’t). Whatever the reason, he made the allegations public and he is not a private citizen, he is a public figure, employed by the tax payer and offering himself up as the alternate Prime Minister of Australia. It is reasonable for the public who employ him, the people he will ask to vote for him, to have questions about these allegations.

Is it reasonable for him to refuse to answer them?

Is it reasonable that he should expect the public to disregard his accuser solely because the OPP thinks the case is unlikely to get a conviction? He is asking asking for absolute trust in the face of a serious allegation, and equally asking us to disbelieve the woman who accused him without giving us a reason to do so.

Politicians from all sides have spoken in support of Shorten, and it’s easy to understand why. They all have a vested interest in ensuring that an unproven allegation of sexual wrongdoing does not spell the end of a political career. They are justified to some extent in this fear, but this doesn’t necessarily mean it is in the public interest to dismiss such a claim without examination.

Do we want to encourage the idea that powerful people should be able to just “draw a line under” such serious allegations without ever having to address them in public?

It’s a fraught and complicated issue. If Shorten is telling the truth, this would truly be a terrible thing for him and his family. Rape is a hideous crime, to be unjustly accused of such a thing, particularly when the accusation will never really go away, is monstrously unfair.

Conversely, if the woman is telling the truth, she has had a hideous crime committed against her and then had it publicly disavowed by her attacker. And the public dismissal of her claim perpetuates the (usually false) idea that women manufacture rape claims and the (usually true) idea that the legal system will not give justice to rape victims. 

One of the two people involved is lying and has inflicted indescribable pain on the other and there is really no way to know which of the two is the true victim. Trial by law is not going to occur, trial by media is not going to find out the truth and both people involved are going to suffer for the allegations being unresolved.

But if Shorten wants to maintain a hold on public trust, I don’t believe that leaning on unconvincing statements from Victoria Police will be enough.

And the commentariat needs to consider its role in this too. If such allegations had been made against Tony Abbott the howls of rage would have been heard light years away. The people who pushed so hard on the claims that Abbott was violent or that he indecently assaulted a woman when he was at university cannot hide under the police statement in regards to Bill Shorten.

Rape is not a partisan crime, we do not hold the different standards for men of the left. Shorten should receive the same opprobrium that Abbott did and we should not accept his refusal to discuss the allegations against him as an indication of innocence any more than we did with Abbott.

The claims against Abbott are not as serious as the claim against Shorten, and yet they have been used against him relentlessly by leftwing writers seeking to prove that he is unfit for his office. Should we do any less for Shorten?

As I said earlier, this is a terribly complicated and terribly painful issue, but removing it from public discussion is not the way to resolve it. 

Jane Gilmore

Jane Gilmore is the editor of The King's Tribune.

Follow Jane on Twitter: @JaneTribune