Sinking the Slipper

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.

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6 thoughts on “Sinking the Slipper”

  1. It is very important to note as Ken has done that the prohibitions are all about unwanted advances and do not prohibit people from making advances at all. It would be a bit difficult to get anyone together with anyone else if that was the case. Of course the tone of Slipper’s text where he said future contact had to be organised through Tim Knapp may be interpreted as Slipper telling Ashby that as his advances were unwelcome, so is Ashby unwelcome in future, ie his career prospects are limited. That could be what started Ashby on the job of doing the dirty on Slipper.

    Of course it doesn’t help Slipper in the public relations area that his list of behaviour lapses seems to be an extensive one. But he’s a lawyer and I’m sure he won’t give up without a fight.

  2. Whilst the obvious bias of the News Ltd is a well known fact, I have to say that Slipper did not help things by insisting on the re-introduction of pomp and ceremony regarding his position as speaker which seemed to immediately attract the ire of most Australians. But as stated previous he is a lawyer so I guessthe pomp & ceremony was only to be expected.

    I also would have thought it could be said that he distanced himself as soon as Ashby firmly rebuffed the advances – although one does have to wonder how Slipper knows that Ashby gives good massages without there being previous contact between the two. There is definately more to this than what has been so far released.

    Just my two bobs worth.

  3. And perhaps, in the light of the advances being clearly unwelcome, the recourse to communication through another party was wise? Depends on the spin you wish to put upon it.

  4. I have a query re the definition of sexual harrassment, and that is why is it assumed that, unless you state categorically that a sexual advance is unwelcome, that it welcome? Does that mean that unless you tell everyone “please dont proposition me… I am married, engaged, have a partner, or just plain not b#@dy interested”, you can expect and should tollerate sexual advances? I know I am not THAT old, but “in my day” (I am only in my 30’s) people asked if you were interested before putting such comments in writing….oh, and dont get me started on the stupidity of THAT one!

  5. I find it quite amusing that this level of scrutiny of the sexual harassment allegations has not been commented on or written about by the media in general. Wouldn’t it be an excellent article to read – to know exactly what position the Speaker is in – has he been sunk or just slipped? The bias in some of these newspapers is extraordinary. Don’t the public has a right to know where Slipper stands? They are always pleading the ‘it is in the public interest’ angle but I would have thought it was more ‘in the public interest’ to know where Slippers behaviour stands within the law.

    1. I must agree Genna. I mean really, some legal substance to the newspaper articles would be helpful.

      Personally I find it interesting/ amusing to see the contrast in the way the newspapers and the labour party have treated Slipper (and Craig Thomson for that matter) and how they have treated Ashby.

      Gillard initially approached the Slipper and Thomson affairs with an ‘innocent until proven guilty’ outlook. On various occasions she talked of not pre-judging the issues and how the court is the appropriate arbiter. Whereas of course the newspapers do not seem to hesitate in inflating the scandal.

      With regard to Ashby however, the ‘innocent until proven guilty’ outlooks seems to be thrown out the window, and Labor seems to want to destroy Ashby, with the claims of conspiring in a liberal plot. Whereas many news articles again seem to change the spin somewhat.
      I saw an article to this effect in the NT News last week (http://ntnews.newspaperdirect.com/epaper/viewer.aspx.)Worth a read, even if it be another example of bias in the papers.

      I think the effect all round is dismal…people either lose faith in the paper’s ability to report without bias or to substantiate their claims using any legal analysis, or people lose faith in the politician’s ability to act with due fairness.

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