The extent to which the ruling class uses the criminal and justice systems to silence victims of sexual violence is on full display in the case of former Attorney General Christian Porter who was only made to shift from cabinet to the backbench over a financial scandal, not a rape allegation.
Prime Minister Scott Morrison and his government, as well as the police, continue to protect Porter. Meanwhile, the needs and safety of the victim have been ignored: she committed suicide during the criminal process.
New South Wales Police said in March that there was “insufficient admissible evidence” to complete the investigation and that they would not pursue the case further. It has since been revealed that police did not even begin an investigation into the rape allegation against Porter last year. They shut the investigation down on the same day they received a dossier containing 80 pages of new case evidence.
Federal Court Justice Jayne Jagot upheld Porter’s application to suppress 27 pages of the ABC’s submitted defence against Porter’s defamation case in July. Jagot ruled that publishing the document would “compromise” the contractual agreement made in the settlement between the ABC and Porter.
And in August, in what was described by sexual abuse survivor and Australian of the Year Grace Tame as “an insult to all survivors,” Morrison promoted Porter to the position of Leader of the House. Morrison saw an opportunity to demonstrate his support for Porter while attempting shut down critics, such as Tame and former Liberal staffer Brittany Higgins, the latter who has bought a case against the perpetrator of her rape in parliament.
Porter has since resigned from cabinet, but only to the backbench where he maintains his ignorance over who the donors are while continuing to be paid a wage of $211,250 a year (not including other parliamentary privileges and allowances). Deputy Prime Minister Barnaby Joyce is downplaying the shift, suggesting Porter will eventually be welcomed back to play a “senior role”.
For survivors of sexual abuse, this is an all too familiar story. Perpetrators are often protected while victims, like Porter’s accuser, suffer years of mental illness and distress with little support or recourse to recognition, voice or justice.
In a system so weighted against victims/survivors of sexual abuse, particularly historical child sexual abuse, there can be no justice. The burden of proof is placed on the victim/survivor, which means it is very difficult to prove sexual abuse through either criminal or civil cases.
Police also consistently fail to protect victims and survivors, especially First Nations people. Rather than help women to be safe, police racially profile First Nations women survivors and often incarcerate them for trumped-up offences such as unpaid fines, or “misidentify” them as the perpetrators. This helps explain why rates of incarceration for First Nations women are disproportionately high.
Many First Nations women survivors of sexual, domestic and family violence die in police custody. Yamatji woman Ms Dhu was jailed for unpaid fines in 2014 after contacting police regarding intimate partner violence. Ms Dhu was physically abused by police and later died in custody due to a septicaemia infection caused by an injury she had received at the hands of a former partner.
Research by Australia’s National Research Organisation for Women's Safety last year showed that “assumptions about the behaviour of victims of abuse (and women in general) contribute to inappropriate police applications against women who do not fit the stereotypes”.
It said Aboriginal and Torres Strait Islander women are “particularly vulnerable” due to the “ongoing societal and systemic racism” including in conceptualisations about what constitutes “violence” and stereotypes about the “ideal victim”.
Disturbingly, the report said “a substantial proportion of [First Nations] DFV [domestic and family violence] victims had been constructed as perpetrators [by police], prior to their domestic violence-related death”.
A joint submission from Sisters Inside and the Institute for Collaborative Race Research to the Women’s Safety and Justice Taskforce 2021, stated: “First Nations women and girls are massively over-represented in prison due to the racism at the foundation of systems of social control … our laws often function to criminalise the most marginalised social groups.”
The report detailed the many ways in which the capitalist, colonialist criminal and justice system is racist and abusive.
Incarceration of perpetrators it not the answer: jails have not stopped or reduced the epidemic of sexual and family violence in this country. Alleged perpetrators of child sexual abuse often avoid criminal or civil persecution — particularly if they are white, male and in positions of power, such as the Catholic Church.
Moreover, the system does not put survivors’ needs or their desires for justice and safety at its priority. Nor does it demand the perpetrator change their behaviour. Different survivors want different things: not all want the perpetrator imprisoned. Most survivors want to ensure their perpetrator is not able to abuse them again or others.
Many survivors need and want financial compensation, so that they can pay medical bills for treatment for psychological trauma, chronic illness and/or physical injuries caused by the abuse. Community support and recognition for survivors who experience decades of trauma-related health issues is also critical.
In New South Wales, a bill to criminalise coercive control has been suggested by some as one way of helping to improve the safety of victim survivors. A Parliamentary Committee unanimously recommended criminalising coercive control in June. However Sisters Inside has pointed out such an approach could adversely target First Nations women who are already victims of the state’s coercive control.
Women’s and First Nations groups here and in the United States are researching how to keep people safe and hold those who do commit violence accountable without resorting to over-incarceration.
One such model is Transformative Justice which, according to US-based activist group Generation FIVE, “respond[s] to and prevent[s] child sexual abuse and other forms of violence that puts transformation and liberation at the heart of the change”.
Transformative Justice acknowledges the need for social change and a whole-of-community approach to provide survivor safety, healing and agency as well as offender accountability.
The Centre for Innovative Justice at the Royal Melbourne Institute for Technology has also been working on restorative justice models which focus on holding offenders accountable, seeking mediation, truth-telling and giving voice to survivors.