Sinking the Slipper

[Cross-posted from Club Troppo]

Recovering journalist Mr Denmore succinctly summarises the response of the media (at least the Murdoch portion of it) to the Peter Slipper controversy:

[T]he Tory regime changers of News Ltd could spin the Peter Slipper story into an imagined constitutional crisis and provide yet another reason to call for an ELECTION RIGHT NOW! to fix the mistake made two years ago and to “put an end to what many view as a dysfunctional government”. The News Ltd goons had Slipper in their sights anyway, having used their ‘news’ pages recently to depict him as a rat. (That there was no manufactured outrage over Slipper in the 18 years he served as a Coalition MP spoke volumes. A classic stitch-up, then.)

Indeed The Oz is so fixated on the story that it has even published a post linking to just about every op-ed they can find on the subject, even including a token few from non-Murdoch outlets.

However, as if to confirm that they’re completely uninterested in the truth as opposed to breathlessly retailing scandal, not one of the linked articles makes any attempt to assess the legal substance or otherwise of the allegations against Slipper. One might reasonably argue in relation to the taxi vouchers aspect that evidence has only become available in the last 24 hours suggesting that alleged harassment victim and erstwhile Liberal Party member James Ashby’s claims may well be false.

However the substance of Ashby’s sexual harassment allegations has been known for at least a week or more, and yet journalists have not bothered to analyse the allegations against relevant legal standards. Perhaps they might claim if challenged that the sub judice convention inhibits any such analysis, yet that isn’t the case even on Parliamentary sub judice conventions let alone the more free-wheeling ones media outlets apply to themselves when it suits them. Legendary UK judge Lord Denning explained the principles in Attorney-General v Times Newspapers Ltd [1973] Q.B. 710:

It is undoubted law that, when litigation is pending and actively in suit before the court, no one shall comment on it in such a way that there is a real and substantial danger of prejudice to the trial of the action, as for instance by influencing the judge,the jurors, or the witnesses or even by prejudicing mankind in general against a party to the cause…. Even if the person making the comment honestly believes it to be true, still it is a contempt of court if he prejudges the truth before it is ascertained in the proceedings.

We must not allow trial by newspaper or trial by television or trial that any medium other than the courts of law.

But in so stating the law, … it applies only when litigation is pending and is actively in suit before the court…. There must appear to be a real and substantial danger of prejudice to the trial of the case or to the settlement of it. And when considering the question, it must always be remembered that besides the interest of the parties and a fair trial or a fair settlement of the case there is another important interest to be considered. It is the interest of the public in matters of national concern, and the freedom of the press to make their comment on such matters. The one interest must be balanced against the other….

Our law of contempt does not prevent comment before the litigation is started nor after it has ended. Nor does it prevented when the litigation is dormant and is not being actively pursued…. No person can stop comment by serving a writ and let it lie idle…. it is active litigation which is protected by the law of contempt, not the absence of it.

In a situation where proceedings have only just been issued and won’t come to trial for a year or more (if at all), and will be heard by a judge sitting alone not in front of a jury, there is very little risk of prejudicing a fair trial and very little risk of contempt proceedings from a judicious tentative legal analysis of the allegations. Media editors must know this, so one can only conclude that it doesn’t suit their purposes to allow either the facts or the law to get in the way of a juicy, circulation-boosting scandal.

As far as I can see from the known facts (or rather allegations), Ashby’s harassment case faces a major hurdle in establishing that Slipper knew or ought to have known that his alleged sexual advances were “unwelcome”. Although the legal requirement to prove this has been subjected to significant criticism, it remains an essential element of sexual harassment under the Sex Discrimination Act (Cth). Section 28A reads:

Meaning of sexual harassment

(1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

(1A) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:

(a) the sex, age, marital status, sexual preference, religious belief, race, colour, or national or ethnic origin, of the person harassed;

(b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;

(c) any disability of the person harassed;

(d) any other relevant circumstance.

(2) In this section:

“conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Feminist criticism of this requirement has been extensive and cogent, as this 2003 journal article by Gail Mason and Anna Chapman explains:

It went against the ‘very essence’ of sexual harassment, namely, the ‘inability of the victim to speak out because of fear of retaliation from the more powerful harasser’. Writing in 1985, Scutt pointed out that ‘very few women would ever be in a position to prove sexual harassment if one of the conditions is that she must have made it obvious beyond any reasonable doubt to the respondent that the sexual activity was unwelcome’. To Scutt’s way of thinking, the position of women in relation to men was generally one of ‘relative powerlessness’, and thus any unequivocal rejection of sexual harassment would require ‘the possession of a degree of self-esteem or socialisation not generally found in women’.

Nevertheless, proof that the “harasser” knows or ought to know that such advances are unwelcome remains a legal requirement without which a sexual harassment case cannot succeed.

Ashby’s relevant allegations against Slipper (at least as recounted by the apparently well-connected Murdoch journo Steve Lewis) are:

In a series of text messages Mr Slipper sent Mr Ashby in February he told the staffer, “if you are interested we could be closer”.

But his attempt to forge a closer relationship was rejected by the adviser, who joined the Speaker’s office in December.

He also asked Mr Ashby: “You getting roks (sic) off. Pity,” during an exchange of text messages sent on February 1 this year. A few minutes later Mr Slipper wrote via email: “U want something more? U brillianmt (sic) at massages.”

‘Rejected advances led to sudden deterioration at work’

However when Mr Ashby – who told Mr Slipper he was homosexual before commencing employment – said he only wanted a professional relationship, the Speaker’s tone allegedly changed.

He told Mr Ashby he should “in future” arrange all communications through another staffer, Tim Knapp, as Mr Slipper said he “cannot guarantee availability”.

In other words, it would appear that Slipper desisted as soon as Ashby made it clear that his advances were unwelcome. Of course, one should not discount the power differential between the Speaker and a junior employee, but the tenor of Lewis’s story hardly suggests that Ashby was in any sense overawed or intimidated. Indeed Slipper comes across more as pathetic than predatory.

Nevertheless, although Slipper may well have a good legal defence, in the court of public opinion presided over by the Lords of the Media he’s a walking corpse.