I had originally written the below as part of my response in the Rolf Harris post, but felt it was too much of a diversion (I know, I know!) so have carved it off into its own thread.
I slight diversion, but something I’ve been thinking about:
I have to say my trust in these sort of media-led trials has been severely shaken by the Brittany Higgins/Bruce Lehrmann bonfire that has played out over the past couple of years in Oz. If you aren’t familiar with this case, look it up and have a read. The fact that both were staffers for the then incumbent Liberal government and that the alleged events took place in Parliament House in the rooms of a cabinet minister gives it a certain fizz.
I can’t have been the only one shocked at the paucity of evidence during the initial trial (that was dismissed due to juror misbehaviour), and even the amount of Ms Higgins’ evidence that veered wildly from previous statements. Plans for a repeat trial were called off to protect the mental health of Ms Higgins, although there is a valid argument that the prosecution realised their case was half cooked and was going to fail. There have been all sorts of revelations of political pressure to press the initial charges, withdraw the case etc and the police have made it clear that they were pressured into proceeding after initially determining that there was insufficient evidence.
There are only two possible versions of the truth here:
1) Bruce Lehrmann is guilty, and raped Brittany Higgins while she lay drunk on a sofa in Parliament House; or
2) An ambitious, young political staffer, embarrassed by her drunk behaviour in a Cabinet Minister’s office, has concocted a story, which has subsequently snowballed, and has thrown a co-worker under a bus.
Both of these options are awful, but there is literally no evidence to confirm or refute either possibility.
So what should be the default position of our community here? Brittany Higgins is being lauded as a brave face of #metoo and Bruce Luhrmann’s life is essentially ruined. He is suing various media outlets for defamation after which I presume he will slink overseas and/or change his name.
I’m disinclined to believe either of them on account of their Young Liberal credentials, however I know that’s not a fair bias. But how do we, as a society, navigate this sort of dilemma?
I get the appalling historical precedent of women not being believed, and thus not coming forward, but a presumption of guilt goes against the foundations of our entire legal system. My personal strategy has been to assess each case on its evidence (as presented in the media, anyway) but I’m well aware that this creates an evidentiary threshold that is often impossible to meet, especially where their is no pattern of behaviour for the accused. In this case, I believe Bruce Lehrmann should never have been taken to trial. Whether he is actually guilty, I have no idea.
This whole situation reminds me of the Pons and Fleischmann Cold Fusion debacle in the 80s, where bold claims were initially trumpeted and magnified in the media before being popped by the scientific community. The difference is that Pons and Fleischmann themselves were the only victims of their circus.
So, I realise that this is the thinnest of ice to skate on, but it’s something I’ve been thinking about a lot (due to some happenings in my workplace, none involving me I hasten to add!) and I’m genuinely interested in the thoughts of this community.
I’ll try a more considered response in a bit, but I wonder if your stance would be affected if, say, Lehrman were to also be accused of rape in a different jurisdiction. Say….Queensland, which still has anonymity, but where local currency, and an inadvertent court listing some time ago, seems to suggest that this might not be the only legal issue he’s facing.
I think looking at your options #1 and #2, there’s a 1.5:
He believed he had consent, but she was too drunk to give informed consent.
And if you think it’s 1.5, then you have to believe, regardless of Lehrman’s belief at the time, you have to consider that rape.
If I found he was facing a similar charge elsewhere, of course it would bias me, just as I would be biased if I found out that the accuser had made multiple spurious allegations before. However our legal system is set up to isolate trials from these biases, a position that the media ignores as they choose.
Your option 1.5 raises a bunch of other possibilities: maybe she gave consent but was embarrassed by the fact afterwards? Maybe they had a dalliance elsewhere (she had prominent grass stains on her white dress). We are again in the realm of the unprovable: there is no actual evidence that any sexual contact whatsoever took place. (Her initial response when queried by a colleague on why she was lying naked on a sofa and whether she had been assaulted was that she was passed out, had no memory and that if she had been raped, it would have been like “fucking a log”. )
A really interesting reflection with my only caveat being that having introduced the ‘half-cooked’ metaphor it needed to be sustained. The case you mention is so full of associated issues – the role of the media ( Lisa Wilkinson ) and resultant criticism of Wilkinson herself.
Staying local to Australia for a minute more, some friends of mine ( not journalists) are cross that sports journalist Paul Kent’s legal problems ( charge of assault) was not reported by his newspaper although the show on which he appears declared that he had ‘been stood down’. I am of the view that Kent’s issues are nobody’s business but because he uses personal and legal information of footballers, my mates claim that it is open season on him. But the media should never be the story and hence it is not equivalent. I am a minority on this issue.
I have a clever young friend who assured me that Woody Allen was guilty ( though he has never been charged with anything) because ‘all roads lead to Rome.’ When I provided some of refutations reported from Moses Farrow, this was met with skepticism and even anger. There seems to be always a conflation of truly woeful choices and criminality assumed. This is often the case when there is a desire for justice – who cares about the legal detail.
I ended up reminding my young clever friend that all roads do not lead to Rome. Oddly, it was this detail that seemed the most chastening for her.
If Kent only stuck to footie, I’d agree.
But he doesn’t. He makes it about character, and about personal issues, without justification. Your mates, and the Panthers, are asking for consistent application of standards – live by the sword, die by the sword. if you spend your career making yourself part of the story, you can’t suddenly say that’s not fair when the story revolves around you.
As I say, I’m in the minority. His career is to find a story, make a story. I’m not sure ( you be right about it) that he has made himself the story in many if any cases.
There was an article in The Guardian recently about separating the art from the artist, querying whether it’s acceptable to listen to David Bowie knowing he had sex with a 15-year-old. I personally found the article stupid and childish. But what surprised me about it was that it began “Roman Polanski, Woody Allen, Michael Jackson …”. Polanski agreed to plead guilty as part of a plea bargain, Jackson was acquitted and Allen was (very rightly, in my opinion) never charged, yet the three were lumped together as equal in guilt. I found that astonishing. Surprised they didn’t try and include Cliff Richard too.
https://www.theguardian.com/books/2023/may/06/can-i-still-listen-to-david-bowie-a-superfans-dilemma
It was about Woody starting a relationship with the much much younger Soon-Yi when she was the adopted child of his then oartner
Yep, I saw that, but that just makes the introductory title even more misleading. Polanski and Jackson were accused of serious crimes. Hooking up with your partner’s adopted adult daughter shouldn’t be considered as the same category.
The accusation against Allen isn’t that he dated Soon-Yi. It’s that he molested his adopted daughter Dylan Farrow, then aged 7.
I don’t have a strong view as to his guilt or innocence, but the crime of which Allen was accused is undoubtedly serious.
As Dai pointed out, that accusation isn’t mentioned in the article.
Yes, the whole point of my post
Regarding the other accusation I have no way of knowing the truth, but I read Woody’s book and I believe him
Sure, but it justifies bucketing Allen with Jackson, albeit perhaps not Polanski.
Hence my surprise at Polanski, Allen and Jackson being “lumped together as equal in guilt.” One found guilty, one acquitted, one not charged of any crime at all but merely seen by the writer as a creep for who he married.
I think two of the accusations against Jackson surfaced only after his death and were never properly tested in court.
My understanding is that the Allen case never went to court at the time of the original claims because the relevant state attorney considered Dylan Farrow “too fragile” to deal with a trial.
Whatever you think about Woody Allen (and as I say above, I genuinely have no strong opinion), I don’t think it’s entirely unfair to group him with Jackson. Both men were publicly accused of child abuse, and the relevant accusations (or at least some of them, in Jackson’s case) have for various reasons never been retracted, disproved or dismissed in a court of law. Instead, they’re reduced to being endlessly litigated on the Internet, which is no court at all.
If I were to object to the grouping it would be on the grounds of Jackson having multiple accusers. Otherwise, I don’t think it’s particularly wild. It’s bizarre that the article focuses on the Soon-Yi angle, but that’s Guardian op-eds for you.
The Guardian probably went for the Soon-Yi angle because calling him guilty of child abuse in a national newspaper would have been libelous, wheras.calling him a creep avoids that but still fits the article’s agenda, which is that we.should (arguably) dismiss the work of all three because of their sexual histories.
Wheras for me their sexual histories, and threfore “guilt”, can’t be considered.remotely.equal.
The article wouldn’t need to call Allen guilty of child abuse, merely to note that he’s been accused of child abuse. I wouldn’t expect that distinction to be beyond the wit of the author.
Anyway, it doesn’t matter. I don’t think anyone with a brain in their head is seriously wondering whether they have to stop listening to Bowie, or whether they can’t watch Chinatown.
These debates only really exist online and in certain circles, circles where publicly expressing your guilt for momentarily enjoying I Want You Back, or letting everyone know that you didn’t dance to R Kelly at your own wedding have some sort of cultural cache and mark you out as obviously being on the side of the angels. It’s all just clickbait, and best ignored.
As I said in my original comment, I found the article stupid and childish.
(But surprising in its grouping of three different histories as one and the same).
And, if the writer had merely pointed out Allen had been accused, that would have thereby automatically included Cliff, as well as Bill Roache, Matthew Kelly and others, in her thesis. Instead she clearly wanted to lump Polanski, Jackson and Allen together as equal in guilt
All feels a bit unlikely to me. Agree to disagree. Or even better just agree that it doesn’t really matter and we should watch this amusing video of a squirrel trying to join in at basketball instead.
Agree to disagree about what? I’ve no idea what it is you disagree with. Nor what feels “unlikely”.
Depp v Heard: The Unreal Story by Nick Wallis covers similar ground. In the UK, Depp lost, but with the same facts, evidence and witnesses, managed to win in the US. All played out in the full glare of the press and social media.
Peter Conrad’s review of the book says, “Nick Wallis followed Depp’s wrangling with Heard in both courts and has now written up the affair as a contemporary moral fable. Extracting grand conclusions from trivia, his book documents the clash between two “alternative universes, terraformed by subpoenas, depositions and witness statements”, in which truth has become entirely subjective and relative.”
US case had a jury, UK didn’t is the difference. The jury believed Depp over Heard, whether they were influenced by the press and social media is another question
Asking for the thoughts of this community? I don’t have much to offer with regard to the specifics of the case mentioned, as I haven’t heard of it before and don’t have much time to invest in reading it.
So all I can go on is what I can deduce from the OP – that it is a case of he said/she said, with not much substantiating evidence on either side.
I was on a plane yesterday morning, and as is my wont, I got talking to my two companions in the middle and corridor seats (I always take the window seat when I can). Sometimes people open up, sometimes they shut off. This time, both were happy to join in a conversation that lasted all flight. None of us had ever met before, so it was a little journey of discovery, consequence-free as we knew once the plane landed, it was unlikely we would ever see each other again.
The conversation meandered happily in many directions, and space was given for each to talk. One was an SAP software engineer from Bangalore, based near Heidelberg, the other a law student from an Iranian family, but born and raised in Cologne. One of the topics was – what is your work culture like? The other employee and I generally agreed that getting back to the office was good for morale and engagement after the extended period of lockdown, etc.
The law student reflected and said that generally, being a law student was a solitary activity, with lots of case studies to read up on, and that a lot of the law student culture tended to be highly competitive and performative – who was doing the best in the exams, who could outdo each other in legal argument. He found his cadre was an exception to this in that they tried to be mutually supportive. Maybe he was being gentle and tolerant with me, but he seemed to agree that there is something about the legal profession that depends upon besting your opponent, destroying their argument, trouncing their case and coming out supreme,
Better (legal) minds than mine on the blorum will no doubt disprove this observation (and ironically thereby support it – ha ha!). But my longwinded anecdotage is intended to suggest that sometimes cases cannot be proved one way or another, and that the outcome from such battles that the legal profession inevitably leads to do nobody any good in the long run. Better, possibly to seek compromise, counselling, conciliation – as seems from my myopic perspective to be gaining ground in such matters as divorce proceedings.
there is something about the legal profession that depends upon besting your opponent, destroying their argument, trouncing their case and coming out supreme
A shame really. “Point-scoring debate” is nowhere near as interesting or informative as “truth-seeking discussion”.
It’s no secret that the-then 28-year-old Jimmy Page dated a 14-year-old girl. She has claimed (not in the linked article) that she was, essentially, once kidnapped. I assume Rolling Stone had their lawyers check this before publishing:
https://www.rollingstone.com/music/music-lists/the-10-wildest-led-zeppelin-legends-fact-checked-153103/led-zeppelin-once-defiled-a-groupie-with-a-mud-shark-152993/
I think you’ve hit the nail on the head in the OP.
The complex nature of consent, the privacy with which sexual acts are typically conducted and the presumption of innocence conspire to create an evidential burden that can be extremely difficult for the accuser to meet.
There are lots of things we can improve in the investigation, processing and hearing of cases regarding sexual offences, but many of them will still boil down to a they said/they said, which ultimately favours the defendant.
It seems to me that there’s been a largely subconscious attempt to counterbalance the above by creating a parallel court of public opinion in which the burden of proof is materially lower and the presumption of innocence is essentially flipped. I suspect this will have a material deterrent function, but it will also lead to a good deal of collateral damage, because public opinion isn’t always particularly considered, careful, or consistent.
Ultimately, you have to decide whether you achieve justice by counterbalancing two different forms of injustice. For me, it’s a little like putting one hand on the stove, one hand in the fridge and saying you’re room temperature. But then, I also don’t have a better solution.
Very much like Derek Smalls
In law, the burden of proof is firmly on on the accuser and for a criminal case, guilt must be shown to be “beyond reasonable doubt”. In a civil case liability “on the balance of probabilities” suffices.
In the court of public opinion, the burden of proof is very much on the accused and “proof of guilt” need not even be “on the balance of probabilities”.