Abuse. It CAN be investigated. If men are brave!

The criminal law is a blunt instrument, designed to be fair to the accused, not the victim. It fails victims in many ways, not because it is a bad system but because by design it properly focuses on the rights of the accused.

The criminal law does not provide "protection" for victims. By definition, if the criminal law is invoked, the offence has already occurred, it is too late to protect.

With the exception of the validation or vindication of conviction (to the criminal standard) and perhaps the chance to make a victim impact statement (only if there is a conviction to that same standard) there is little healing in the criminal law for those survivors or victims of offences of abuse by the powerful. And usually there is a whole world of pain.

Almost always abuse, whether it be sexual, physical or emotional does not have a witness other than the abuser and the victim. Given the high burden of proof of the criminal justice system it is difficult to achieve a conviction. The difficulty of achieving a conviction is sadly a major deterrent to victims who deserve the real chance to have perpetrators held to account.

An investigation by persons other than the police, even if it might be of criminal behaviour, has NEVER been a threat to the "Rule of Law". Such investigations happen in many situations, in the workplace, in institutions that may have harboured or protected the perpetrators of historical abuse (whether those perpetrators are dead or alive) and by lawyers who seek civil remedies for their clients when the criminal law will not convict. Remember O.J. Simpson who paid damages to the family of his dead wife even though he was acquitted of her murder.

What is needed if victims of sexual assault are to have a voice (usually those victims are women or children abused at the hands of more powerful men) is a way that allegations can be tested to a civil standard, that is on the "balance of probabilities". AFTER that test suitable consequences could be visited upon perpetrators. Victims could have a voice.

If victims had access to affordable legal redress that held men accountable, with assistance to prosecute their complaints, there is a chance that there would be a deterrent to more abuse, By suggesting that the criminal law is the ONLY way that allegations of abuse can be tested, the men in power deprive victims of a voice. That lack of voice is what led to the #metoo movement, to the protests that will occur tomorrow, to marches on parliament house and demonstrations in other cities. Women and victims of sexual violence are finding their power and challenging legislators to find a remedy. Just as civil rights demonstrators were moved to protest to bring to light racial abuse or unjust wars.

It may be a surprise, but there are models that could easily be adapted and adopted to provide a voice to victims AND hold men accountable. Any model needs to address three issues;

1. Making complaint must be easy without risk of trauma or damage to the complainant.
2. Any system would need to have protections to ensure that it is not used to deliberately and maliciously damage reputation without reasonable cause. Frivolous or vexations complaints should not be tolerated.
3. Investigation must be rigorous and independent

So what are the models?

INVESTIGATION

Some religious institutions have set up systems where victims/survivors can have allegations tested on the balance of probabilities. While not perfect, systems such as the Towards Healing protocol have allowed many survivors to tell their stories, be acknowledged and achieve some chance of moving past the shame and trauma of the past. The investigations of the Defence Abuse Response Taskforce is another example. Employers and institutions regularly conduct investigations to determine if breaches of policy have occurred or if workplace behavioural standards have been breached.

Agencies such as the Health Care Complaints Commission carry out such investigations of complaints against doctors every day https://www.hccc.nsw.gov.au/

If it is important enough to investigate bad doctors or abuses hitherto tolerated in our Defence Force it should be equally important to investigate men who abuse women!.

Investigations can be conducted using some of the processes of the civil law, with the investigator making decisions about what evidence to gather, exposing and testing the evidence and making a determination.

There are any number of experienced, honest and independent investigators working right now on historical abuse cases, in the workplace, etc who could be quickly deployed to investigate, provided they are offered some power and protection. Legislation may be needed.

GOVERNMENTS ADOPT THE INVESTIGATIVE METHOD ALL THE TIME WITHOUT THE RULE OF LAW SUFFERING ANY DAMAGE!

CIVIL PENALTIES AND CONSEQUENCES

There are also models where civil penalties are imposed for what might otherwise be criminal "offences". Trade Practices and discrimination laws come to mind.

It is easy to imagine an investigation resulting in civil penalties, consequences and remedies that have real value to victims. Compensation, redress and education and restorative justice outcomes as suggested by Jane Bolitho and Thea Deakin-Greenwood (https://www.smh.com.au/national/sexual-assault-survivors-must-be-at-heart-of-justice-system-20210310-p579id.html) are able to be imposed if a determination is made that abuse has occurred.

And the biggest deterrent of all is the risk of exposure. Should a finding of abuse be made, the perpetrator could be publicly exposed, without fear of defamation or similar consequences.

A thoughtful system that balances the rights of victims and the accused is possible. The civil justice system offers plenty of examples. All that is needed is the resolve of the lawmakers to address behaviour that must surely be as damaging as bad doctors and abusive priests.

PROTECTING THE "ACCUSED"

Privacy and non publication is a much easier and more publicly acceptable interim protection in a civil case than in criminal proceedings. The public interest in the administration of criminal justice demands that it be open and transparent. The public have a lesser interest in claims between individuals.

If findings are made that determine abuse has occurred (on the balance or probabilities) then protections against identification could be removed thus demonstrating to the world that men will be held accountable for their abusive behaviour once a fair enquiry has occurred.

OTHER ISSUES

I am aware that there are a range of issues that need to be addressed we are to be resolute in designing systems that hold men accountable, for instance;

1. Ease of access and cost need to be carefully considered
2. Powers of investigators need to be defined
3. Balanced protections need to be put in place for all involved
4. Consideration of how a perpetrator might be offered some level of lenience or forgiveness if they admit wrongdoing early in the process, without diminishing the agency of the victim/complainant
5. Protections from victimisation or payback against complainants needs to be considered
6. Consequences for making a frivolous or vexatious complaint need to be included.

None of these is insurmountable. We have achieved the same for people making complaints about their health care, about police and in many other situations.

WHY MAKE THESE SUGGESTIONS?

I am a man.

I want to be part of the conversation that holds men accountable, particularly men who are powerful and/or for some other reason have "got away with" their abuse of power.

I have watched such movements as #metoo and the current conversation about what happens in our legislative halls with horror. I am not horrified just for the abuse that is occurring (though that should be enough). Rather I am horrified and disgusted by the complete policy inertia, the failure to take action, of the men (who say they run the country) when it comes to holding other men accountable.

We have had aged care enquiries, banking enquiries, royal commissions about historical abuse. Some were only initiated after long, loud choruses from those abused by systems that protect the powerful and occurred over the objections of the bankers, powerful abusers and their institutions who kept telling us that there was not a problem when we all knew that there was one.

Our politicians most often are far too slow to address abuse, then they recoil in horror when the obvious is reported to them by royal commissioners or boards of enquiry.

The stories that are in our media right now, of what happened at a debating contest, in a ministers office or to young women at the hands of "boys" from privileged private schools are not isolated stories. Any one who listens knows as much.

I cannot in all conscience say or do nothing any more. The least I can do is to bring to the conversation my professional experience in the law, as a mediator and conflict resolution practitioner. And to advocate for change. And perhaps to call out the pathetic excuses for their inaction of our mostly male politicians.

I want a government that addresses systemic abusive behaviour where ever it occurs, even if it occurs in its own ranks,

I want men to be accountable.