Last week I had dinner with a few friends, all involved in the law in their past lives, and like many of our profession, not lacking in opinions! One of the women polled the table - was the Melbourne newspaper The Age right to publish rape allegations against Geoff Clark, head of ATSIC, or was it a breach of his rights? She correctly predicted that all the men would agree with the editor's decision to publish, and that the women would side with Clark's outrage. Why? I don't know, perhaps there's an academic thesis in there somewhere, but was Clark the victim of an abuse of his rights? At the time I thought not - but now, having looked at it and listened to my friends' impassioned arguments, I'm not nearly so sure.

What happened?

The Age newspaper published allegations that ATSIC chairman, Geoff Clark, had raped four women in the 1970s and 1980s. That's all that really needs to be said about the story. But let's say two things right from the start - the allegations concern brutal rapes, amongst the worst crimes imaginable, and the newspaper sourced these allegations from the women who claim to have been the victims of these terrible crimes. No one, not even the most rabid civil libertarian, can be other than outraged at any allegation of this sort. But again, there is nothing else to say about this aspect of the issue, because we have no way of testing the women's story, or the denials of Mr. Clark.

And that is where our interest lies.

All those in favor

Let's start with the position for the affirmative.

You're famous, you've taken a political position (like the chair of ATSIC) where you are thrust before the cameras and microphones at every opportunity. That doesn't make you an egotist, it's just part of your job. But it is your job, and for whatever reason, it's the job you have chosen. No, that doesn't mean it's open season on public figures, but it opens an idea that lawyers call "public interest" i.e. a newspaper might claim, if sued for defamation, that the information was published because it is of legitimate interest to the public at large.

All those against

Trial by media - that about says it all.

Police, judge and jury, all rolled into one. Did Clark, or his legal representatives, get the opportunity to challenge the allegations made in the article? And one of the alleged sexual assaults had in fact been the subject of both a police investigation and a committal proceedings in court. Was there any allegation that these investigations had been improperly conducted - no, but had that been so, it would have quite rightly been the subject of journalistic overview. And the other two charges were apparently the subject of an investigation by the Victoria Police, who chose not to proceed to charges against Clark.

The editor of The Age sought to justify the publication of the article on the ground that Clark is a prominent public figure. This is important. Move the allegation into the Party political arena and see how you feel about it. For instance, would you believe it is justified if an allegation is made that a politician was guilty of a serious crime in their past? Many would, either because of an innate hostility towards politicians, or because it is Parliament that makes and protects our laws. Charges of hypocrisy might legitimately fly.

Okay, so public figures are different to you and me. Does that mean they are not entitled to a fair hearing of charges against them?

What we say

It's tricky, because there can be no doubt that freedom of the press is one of the bulwarks of democracy. Look at any totalitarian regime and you will find a press that is on a very short leash.

Our legal system is predicated on the so-called "presumption of innocence". That means, as they say on the American TV shows, a person is entitled to be presumed innocent unless found guilty by the judicial system. Clichéd or not, that is the fact of our system. And more, given that these are criminal allegations, a court would look at them on the criminal burden of proof - that means that the charges have to be proved beyond a reasonable doubt. In other words, if Clark had been brought to court on any or all of these allegations, he would be given the benefit of the doubt, on all the facts in issue. And of course, these alleged crimes took place a long time ago, which would likely make the prosecution's case more difficult.

Clearly these are terrible allegations. We should not minimise the effects of rape, or any form of sexual assault, no matter how long ago the crimes allegedly took place. But it is not that simple - like it or not, the legal system has to work for everyone, famous or not, and if it breaks down in one situation it will reverberate in others as well. The editors of The Age are right when they say that Clark has recourse to the laws of defamation if he believes his public image has been harmed. But is that sufficient to justify publication? Defamation is a complex and costly area of the law, and not everyone wants to start on that long road, or to see the issue back on the front pages long after it has cooled.

Journalist Terry Lane, defending The Age, claimed that we would never have had the Queensland Fitzgerald Inquiry without the brave investigation of corrupt police by the Four Corners team. He's right, of course, but that's not comparing apples with apples. In Clark's case the allegation had in fact surfaced, and had in fact been the subject of investigation. And the allegations are not of internal police corruption, but of a criminal offence that is (unfortunately) routinely the subject of court action. If the system discriminates against women, and deters them from making allegations of sexual assault, then it should be attacked at that level. It is not up to the press to fill in the gaps.

As I said, I began with a strong belief that the newspaper had done the right thing. It is a human reaction to allegations so dreadful - we want to find a perpetrator, and we want the victims to make their allegations in the light of day. But at what cost? The law is there to protect everyone, and that's why the rules of evidence and the burden of proof are discharged in a courtroom, not out in the streets or in the editorial offices of a major newspaper. There's plenty wrong with the legal system, but we abrogate our responsibility when we leave it to an unsupervised newspaper editor to fix the problems for us. We should forget about Geoff Clark the person and look at what this story stands for. Then we might be prepared to point the finger where it belongs - at ourselves!

By Geoffrey Winn
Creative Director
www.law4u.com.au

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