Presumption of innocence at risk amid clamour for retribution
Don’t lose sight of proportionality as we change the conversation, writes Greg Barns
IN
1995 the celebrated Australian author Helen Garner published The First Stone.
In the era of #Metoo, a necessary corrective in some respects to a culture of imbalance, there is a danger that in the clamour for retribution or revenge we lose sight of the point made by Ms Garner’s book.
Ms Garner wrote about an incident that is alleged to have occurred in 1992 at the elite Ormond College, one of the colleges that ring the Carlton campus of Melbourne University.
The book courted controversy at the time of its publications, one of the reasons being whether the punishment that the man endured was disproportionate to the alleged inappropriate behaviour.
Some early generation feminists sympathised with the man.
This columnist’s mother was one of those women. She recalled that at tennis club dances in the early 1950s if a man had made an advance at her she sternly told him not to, but did not think he should suffer public humiliation and lose his job.
The issue of proportionality to an allegation or even a finding of wrongdoing is important because fairness and humanity should ensure that we do not treat all alleged misconduct, poor self control, or the practice of cultural norms past their use-by date, as equal.
Furthermore, when allegations are made there must not be a rush to judgment which adversely impacts on the person accused. Every person, irrespective of whether they are accuser or accused, is entitled to a considered and careful response by society.
The case of Kevin Spacey is an example of this issue.
The #Metoo movement and the climate created whereby those accused and those found to have sexually harassed and assaulted become pariahs or too tainted in the eyes of their colleagues and peers, has had a devastating impact on Kevin Spacey, a brilliant actor whose performance in the film American Beauty captured the repressed dissonance of suburbia and its stultifying conformity so poignantly.
Mr Spacey was accused of committing a number of sexual assaults. No findings, no charges, just accusations.
The presumption of innocence, a fundamental human right, went out the window.
Netflix, a production company and broadcaster cut ties with Mr Spacey and a film he produced earned less than $200 when it opened earlier this year.
However the response to mere allegations by Mr Spacey’s paymasters was troubling to say the least. It makes any trial before a jury highly problematic because the prejudice Mr Spacey faces as a result of the unseemly rush to judgment and disproportionate response by Netflix is so overwhelming.
The power of pressure and the climate of today means that there is no willingness to wait, to not rush to judgment, and to ensure that a response, if any, to publicised allegations is measured according to the nature of the allegations, and the stage at which any legal or other investigative proceedings are placed.
To be clear, it is important there is a capacity for individuals to speak up about their experiences when they believe that they have been wronged.
To not speak up because of fear of retribution or consequences is undesirable.
But equally great care needs to be taken to ensure there is not a rush to judgment or a response which is disproportionate to the alleged actions of the perpetrator or which is disproportionate in the sense of jeopardising their rights to defend their reputation.
The #Metoo movement has changed the conversation around power and sexuality.
It is however presenting a challenge to those accused of misdeeds and how we, as society, balance those fundamental human rights with the need to ensure the educative impact of the narrative provided by alleged victims is not stifled.
A sense of proportion, of discernment and nuance are critical features of how public allegations of sexual misconduct are handled by parties.
Helen Garner’s The First Stone was illustrative of that conundrum. It is well worth dusting off the bookshelf.