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Missing the Point: How focus on the presumption of innocence is failing victims of sexual harassment

By Georgia Crocker


CW: sexual assault


Apparently, no one is surprised that former High Court Justice Dyson Heydon has been exposed as a sexual predator. Former Howard government minister Amanda Vanstone, amongst many other commentators, argues his behaviour was an ‘open secret’ among legal professionals, and yet it took seven years after Dyson’s retirement for confirmation his sexual harassment to come to light. [1] This lack of formal reporting is not unusual; a 2019 survey found that 61% of female legal practitioners have experienced harassment and that 81% of these incidences went unreported. [2]

Predatory behaviour is so endemic within legal circles that it is not uncommon to receive warnings from previous generations of lawyers, passed down like old textbooks – who gets handsy at work functions, who not to be alone with, whose jokes aren’t as harmless as they might want you to think. There are, of course, countless barriers to overcoming workplace sexual harassment, but it seems to me that the Heydon case highlights a cultural obsession with the presumption of innocence.


The presumption of innocence is a straightforward legal standard that requires a court to treat a person accused of a crime as innocent until the prosecution can prove guilt ‘beyond reasonable doubt’. This burden of proof is set so high to uphold a staple of liberalist legal practice: Blackstone’s ratio, or the idea that our justice system will sooner acquit ten guilty people than convict one innocent person.[3]


This caution comes from a rational place— the State should not deprive someone of their liberty unless it is certain of their guilt. However, our reliance on Blackstone’s ratio biases the criminal justice system in favour of the accused, and as the Heydon scandal shows us, judges are fallible.


The result? Many people who are, in fact, guilty of a crime are never convicted. group of predatory men whose behaviour is accused but not charged, charged but not convicted, reported but not punished, or never reported at all. Their reputations are protected by the denial of this ambiguity, by our society’s insistence that a person is innocent until proven guilty


These are the people that women worry about. Their continued presence in the workplace forces women to assess the personal risk of being alone in a room with a man, of drinking with him, or of taking a taxi home with him. Women must balance the danger of harassment with the importance of maintaining a professional relationship, ultimately protecting the reputations of these men.

I am not advocating for criminal justice reform that would see every one of these men in jail. Casting the net of guilt wide enough to encompass all of them would compromise the most basic principles of our criminal justice system. The problem is not that these men walk free, but that we are unwilling to engage in any discussion of their behaviour unless they have been proven guilty.


Take, for example, George Pell. Bolt defended Pell by attacking the character of Witness J, the sole accuser whose allegations made it to trial. His unwavering belief in Pell’s innocence led him to describe the charges as a ‘truckload of mud thrown at him’, even suggesting that Pell’s accusers were simply ‘looking for someone to pay for some past trauma’. [4]These attacks on the character of accusers are not a natural or proper consequence of the presumption of innocence.


Belief in the veracity of an accuser’s claims, and whether the accused person is ultimately convicted, are two separate issues. Conflating the two reinforces a dynamic wherein an accuser must withstand all manner of attacks on their character in the name of the presumption of innocence. While the presumption is used to protect the reputation of the defendant, no such protection exists for a complainant. For Witness J, there was no hand-wringing concern that the relentless allegations that he was lying could taint a jury’s assessment of his character. He had entered a game where he had to either ruin or be ruined, and the other side had been given a head start.

Kate McClymont’s exclusive on Dyson Heydon presents another option to journalists when dealing with sexual harassment.[5] McClymont began investigating Heydon in 2017, after receiving a tip-off while investigating other high-profile sexual harassment claims. [6] In 2019 an independent inquiry was established by the High Court as a response to allegations against Heydon. It wasn’t until June this year, following the inquiry’s findings, that McClymont and the Herald released their full investigation. [7]

Chief Justice Kiefel, who initiated the High Court’s inquiry after hearing from two of the judge’s former associates, responded in a statement, ‘we are ashamed that this could have happened at the High Court of Australia.’ [8]The complaints of Heydon’s former associates have been substantiated by an internal investigation, with findings made on the balance of probabilities— the standard burden of proof in a civil case. Despite the lack of criminal charges or convictions against Heydon, Kiefel apologised to the victims, saying ’their accounts of their experiences at the time have been believed.’[9]


These investigations into Heydon’s behaviour demonstrate that it is possible to take allegations of sexual harassment seriously, and to report them, without compromising the presumption of innocence. McClymont’s restraint in reporting this story, allowing it to break only after the High Court’s investigation had been concluded, ensured that the accuser’s accounts were believed. By apologising to the accusers Kiefel recognised that it still is appropriate to believe them, and to take action to protect them, absent any criminal conviction of Heydon.


The presumption of innocence does not require us to reflexively disbelieve accusations of harassment. It does not require us to test the character of an accuser before their matter reaches trial. It does not require us to remain silent about uncharged acts of harassment. The role of a court is to decide who should be punished for crimes they have committed. The rest of us must engage in discussion with good faith and trust, to seek truths that the courts cannot always provide.



References

[1] Amanda Vanstone, ‘Dyson Heydon: who knew and turned a blind eye?’ SMH (28 June 2020) <https://www.smh.com.au/national/dyson-heydon-who-knew-and-turned-a-blind-eye-20200626-p556jo.html>.

[2] Victorian Legal Services Board and Commissioner, Sexual harassment in the Victorian legal sector (2019).

[3] Blackstone’s Ratio; <https://www.cato.org/policing-in-america/chapter-4/blackstones-ratio>.

[4] Andrew Bolt, ‘The Wrong Verdict?’ The West Australian (Perth, 27 February 2019) 7.

[5] Kate McClymont & Jaqueline Maley ‘High Court inquiry finds former justice Dyson Heydon sexually harassed associates’ SMH (22 June 2020) <https://www.smh.com.au/national/high-court-inquiry-finds-former-justice-dyson-heydon-sexually-harassed-associates-20200622-p5550w.html>.

[6] Natassia Chrysanthos, 'The stakes are so high': Inside the two-year Heydon investigation SMH (25 June 2020) <https://www.smh.com.au/national/the-stakes-are-so-high-inside-the-two-year-heydon-investigation-20200625-p55666.html>.

[7] Kate McClymont & Jaqueline Maley ‘High Court inquiry finds former justice Dyson Heydon sexually harassed associates’ SMH (22 June 2020) <https://www.smh.com.au/national/high-court-inquiry-finds-former-justice-dyson-heydon-sexually-harassed-associates-20200622-p5550w.html>.

[8] Michaela Whitbourn, “'We're ashamed': the Chief Justice and the High Court's #MeToo moment’ SMH (26 June 2020) <https://www.smh.com.au/national/we-re-ashamed-the-chief-justice-and-the-high-court-s-metoo-moment-20200623-p555hd.html>

[9] Chief Justice Susan Kiefel, ‘Statement by the Hon Susan Kiefel AC’ (High Court of Australia, 22 June 2020).

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