Quick post: Sexual harassment and the abuse of process #Ashbygate #auspol

A man walks down the street and is hit by a car.  The car was being driven negligently.  The man — who happens to hold delusional beliefs about the legal system — refuses assistance with his civil suit against the driver.  The court dismisses his application on procedural grounds.

A woman is sexually harassed by her employer.  She becomes obsessed with an idea of justice which she pursues without seeking legal advice.  The court dismisses her application on procedural grounds.

A political staffer receives comments of a sexual nature from his employer who, for argument’s sake, is the Speaker of the House of Representatives.  The staffer forms the belief that it is sexual harassment and seeks advice on how to ‘punish’ his employer using the courts.  His legal advisers advise a media strategy as well as a legal strategy.  The court dismisses the claim as an abuse of process.

I don’t know if Ashby was sexually harassed.  The court did not even look at that question.  You, reading this, do not know if Ashby was sexually harassed (unless you are Slipper or Ashby).  Despite this, I’ve seen articles call on the reader to pity poor Slipper, others questioning the motives of the court, and yet others calling for us to condemn all sides of politics for the court case.

There are a few issues here about the ontology of law (how legal facts exist) and about justice (what we want from the legal system).

The court refused to answer the question of whether sexual harassment occurred (because of the abuse of process finding).  If we want to say that somebody is guilty only when found to be so by a competent authority through a legitimate process, then we’re left with the position: ‘Slipper did not sexually harass Ashby’.

But most of us don’t think the world works like that.  If I steal an item from you, it’s not theft only after I’m found guilty by a court.  This sort of reasoning leads to some absurd outcomes, as referenced here in Wondermark:

Wondermark: In which Protocol is followed

So the media and a lot of the left wing noise from Twitter have mostly taken the first view: the court didn’t answer the question of whether Slipper sexually harassed Ashby, therefore Slipper did not sexually harass Ashby.

In other words, ‘Slipper sexually harassed Ashby’ and ‘Ashby’s court case was an abuse of process’ are not mutually exclusive claims.

Which leads on to the question about justice.  There are some situations in which there is an obligation to report a misdeed regardless of how the person found out about it.  This is particularly common for government departments: if they get the information that somebody has improperly benefited (even by accident), they have an obligation to correct it.

In this situation, there’s the report that sexual harassment might have taken place but there’s no obligation to investigate that claim once it’s been decided that there was a procedural reason not to decide on that event.

And this is where we get into the murky waters.  My assumption is that it would be better to have two findings: 1. Abuse of process; 2. [No sexual harassment/sexual harassment].  I think this assumption is based on my belief that sexual harassment should be stamped out and, in this case, the court has evidence that sexual harassment might have taken place.  Further, the certainty of the case appears to be preferable: ‘Oh, the court found he wasn’t guilty.  That’s good.’  Or: ‘Oh, the court found that he was guilty.  What a terrible person.  As I live in his electorate, I will be sure to vote against him in 2013.’

In short, I struggle to see how hearing the case about the sexual harassment would have been an ipso facto terrible thing.


Author: Mark Fletcher

Mark Fletcher is a Canberra-based blogger and policy wonk who writes about conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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