Rape, the law, and naming the man responsible

David Heilpern tackles key questions relating to the allegation of rape by a cabinet minister.

Is there a limitation period on criminal charges?

There is no limitation period for serious offences in New South Wales. There is for some minor offences such as speeding and drug possession. In other countries, there are limitation periods as low as five years, even for sexual assault, but Australia has not gone down that path. It is a tricky issue – a few years ago I watched a riveting TED talk by a perpetrator and a survivor of sexual assault. They shared their thoughts and sorrows. That could not happen without a limitation period. On the other hand, some survivors take many decades to report and their chance to have the perpetrator brought before the courts should not be lessened by that understandable delay.

Can you have a rape trial once the victim is dead?

You can, but it is rare. I dealt with three such cases over 35+ years. In the first, there was a confession, in the second there was an eye-witness, and in the third a co-offender who had pleaded guilty. Keep in mind there are murder trials all the time where (obviously, duh) the victim is dead. So, all is not lost.

Should he be named?

Of course he should. This ‘oh let’s just leave it to the police now’ is crapola, particularly when it is unlikely to result in charges. It is an obvious and transparent effort to make it all go away. He should be named because we all know that rapists, particularly brutal and violent ones, rarely rape just once. There may be many other victims out there who are spurred to action by this allegation. If this politician is one of those named by 4 Corners in their report last year it will be a nail in his coffin I reckon. And if more women come forward, then a single weak case can be bolstered by ‘similar fact’ evidence.

What if there are no criminal charges?

To prove a criminal matter there needs to be proof beyond a reasonable doubt, and that may prove impossible in this case. But that is not the only process. For example, the recent outing of a High Court justice for sexual harassment was important and the conclusions of the inquiry damning. It is standard employment law practice for determinations to be made at less than the criminal standard. Similarly with code of conduct complaints in local government. And that is exactly what should happen here – an inquiry into allegations, and a finding as to fitness for high office. Apparently, there are diary entries, complaint witnesses and statements to lawyers. Quite enough to make an assessment on the balance of probabilities. If it is who I think it is (and I do cruise the dark net) then maybe there are plenty more allegations to come.

But isn’t he innocent until proven guilty?

Yes, for a criminal charge that is correct. But there are plenty of people who have not been tried in a criminal court, but are deemed not fit to hold positions of authority because of sexual harassment, inappropriate conduct, and behaviour that is inconsistent with being, for example, a Minister of the Crown. Ministers are sacked for less-than-criminal conduct every year, and quite rightly too. Are they innocent of a crime? Yes. But it doesn’t matter a hoot because the aim is not to imprison them, but to discipline them. Again, the presumption of innocence is being used as a sword by those seeking to divert attention, and not as a shield to protect defendants in criminal cases.

Beware the PM who keeps saying ‘leave it to the police’ and we have a ‘presumption of innocence’ and ‘the police commissioner wrote me a letter telling me what to do’. He should be named. He should stand aside. An inquiry should be held. Maybe by me.

David Heilpern is a retired magistrate, author of For Fear of Favour: Sexual Assault of Young Prisoners, and has been a strong advocate of law reform and civic rights throughout his career. In 1998, he became one of the youngest magistrates in NSW.