PRIOR CON­VIC­TION

Liz Conor on what rape law can learn from MeToo

The Saturday Paper - - Front Page - Liz Conor

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.

#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.

LIZ CONOR is a se­nior re­search fel­low in his­tory at La Trobe Uni­ver­sity.

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