Why Rape Allegations Are Nearly Impossible To Prosecute Once A Victim Is Dead

cabinet minister

A letter alleging that an unnamed man who is now a federal Cabinet Minister raped a teenage girl has been referred to the Australian Federal Police (AFP). The rape allegedly took place in 1988.

According to the anonymous letter sent by friends of the victim, the woman was allegedly anally raped in Sydney when she was just 16 years old, years prior to the man entering federal politics.

The woman reported the incident to New South Wales Police last year but, due to COVID restrictions, were unable to travel to South Australia to interview her regarding the historical allegations.

Tragically, the woman has since taken her own life.

New South Wales Police suspended the investigation when she died, according to a statement.

On Thursday, NSW Police confirmed that due to “insufficient admissible evidence”, they would not be proceeding with the investigation and the case is now closed.

But the decision is hardly surprising because unlike murder cases, historical rape allegations almost never make it to trial

Who Received The Letter?

The letter was sent to Prime Minister Scott Morrison, Labor’s Senate Leader Penny Wong and Greens senator Sarah Hanson-Young, and quickly sent shockwaves through the parliament after an intense couple of weeks following Brittany Higgins’ allegations.

“I first became aware of the complainant’s allegation when I ran into her in Adelaide in November 2019. The complainant reminded me we had met once before,” Penny Wong said in a statement.

“I facilitated her referral to rape support services and confirmed she was being supported in reporting the matter to NSW Police.”

How Does The Legal Situation Change When The Victim Is Deceased?

It’s not impossible for legal proceedings to go ahead and charges to be laid without the alleged victim’s presence, but the bad news is that it was extremely unlikely to happen, even before NSW Police officially closed the case.

“It’s theoretically still possible for a prosecution to be mounted in a sexual assault case even without the complainant being available. But practically speaking, it’s almost impossible and there isn’t any real likelihood that a prosecution could or would go ahead in this particular case,” Marque Lawyers’ Michael Bradley, who was the lawyer for the alleged victim, told PEDESTRIAN.TV.

Basically, without the alleged victim (who remains unnamed) being alive, willing and able to testify, it becomes incredibly hard to argue whether an attack happened at all without physical evidence or a testimony under oath.

“If you consider the particular nature of sexual assault cases, usually, the central issues are around whether a crime occurred at all, and the connected question of consent. And usually, there are no witnesses or other direct evidence beyond the testimony of the complainant and alleged perpetrator. So without one of them being present and able to give evidence and be cross-examined, it’s an almost insurmountable problem for the prosecution, given that they have to prove guilt beyond a reasonable doubt.”

In the end, the case was closed due to insufficient evidence, which was always the most likely outcome considering the alleged victim would not be able to testify at trial.

Why Can’t We Name The Alleged Rapist/Cabinet Minister?

There are two main reasons why the alleged rapist in this case, and in that of Brittany Higgins, have not been publicly named: defamation and contempt of court.

“The main reason is fear of being sued for defamation, which is a very real risk for anyone who’d decide to take that step. There’s also certainly for newsrooms, there’s an ethical question about whether it’s appropriate, particularly where there’s a criminal investigation and a possibility of prosecution, and the risk of prejudicing that. But the primary concern is being sued,” Bradley said.

Depending on the individual circumstances, being found to be in contempt of court can result in hefty fines, or even lengthy jail sentences.

Recently, the Herald & Weekly Times Pty Ltd (owned by Rupert Murdoch), among countless other publishers, was tried for contempt in regards to the highly publicised George Pell case. However, a verdict has not yet been made public.

Now that the case is closed, anyone who names the alleged rapist could still be sued for defamation but would not be at risk of contempt of court.

When Can We Expect To Hear The Name Of The Cabinet Minister?

Obviously, the media can’t name names here. But that doesn’t mean the identity of the man accused in this case (as well as the Higgins case) will remain hidden.

Basically, if the accused man doesn’t name himself (and likely step down from his position shortly thereafter), it’s likely that somebody else will name him.

“There are a number of possibilities. Obviously, the person may choose to identify himself or someone might do it under parliamentary privilege. Certainly, there has been suggestions that that might happen. It seems, given how wild the speculation is and how intense the interest is, it seems pretty unlikely that it’s not going to come out. It seems unlikely that it will remain quiet for much longer,” Bradley told PEDESTRIAN.TV.

Under parliamentary privilege, other MPs could, in theory, name him without the same legal repercussions that you or I would face.

“These immunities and powers are very extensive, but they carry with them great responsibilities. They are deeply ingrained in the history of free institutions, which could not have survived without them,” the Parliament of Australia website reads.

What Due Process Can We Expect?

Bradley, who wrote a whole opinion piece on his thoughts on the matter, explained that even if the legal process doesn’t bring justice to the alleged victim, the government should still look into some sort of independent inquiry into the allegations and the man accused.

“Because the ordinary criminal justice process isn’t available, there’s no optimal solution but there are other processes that can be pursued to address the allegation and get to a resolution, such as an independent inquiry that the government could establish to look into the case, examine all the evidence and give the accused man procedural fairness and come to a conclusion,” he said.

“That happens all the time in lots of contexts such as sporting codes and workplaces and the high court recently did that in relation to Dyson Heydon so there’s plenty of precedent for processes that are available to address and deal with the allegation and in my view, that is what should happen.”

What Due Process Have We Seen So Far?

So far, nothing has happened. As far as we are aware, the minister (who remains unnamed, obviously) has not been stood down from his role or faced any sort of publicly-known repercussions.

Now that the official investigation by NSW Police has been closed, it will be interesting to see if any sort of inquiry is ordered at a federal level.

Help is available.

If you require immediate assistance, please call 000.

If you’d like to speak to someone about sexual violence, please call the 1800 Respect hotline on 1800 737 732 or chat online

If you are in distress, please call Lifeline on 13 11 14 or chat online. 

Under 25? You can reach Kids Helpline at 1800 55 1800 or chat online.

You can also reach the Suicide Call Back Service on 1300 659 467 or chat online.