The Class of Rape

Power and Privilege in the Higgins affair.

The case of Britney Higgins has brought me into a number of conversations about the way the criminal justice system deals with those who have rape and sexual assault allegations, and it is impossible for me to approach the issue without talking about my own experience.

Bringing personal experience into a discussion on the criminal prosecution of rapists is not like talking about the time you got done for DD after the Christmas party in 1996, it’s not raised in polite company, because rape is difficult to talk about and the politics of rape is intimately intwined with the kind of feminist politics so many people find unpalatable.

All classes of women are subject to the vulnerabilities of the female body, one of which is sexual assault. However, some women enjoy protections, that I would never shame them for, that exist in money, in status, in privilege, in what we used to call “class”. The Higgins case has put on full display the unseemly way that the most privileged of women and men have weaponised the vulnerabilities of the female body for their own political interests.

I have used my own experience of sexual assault in political arguments, and I do so now. But I first brought the matter to the police and I continue to encourage women and girls to do so if they can.  I consider myself privileged in having dealt with the specialist child sexual assault unit at the headquarters of the Queensland Police Service, the same unit were also investigating the disappearance of Daniel Morecombe at the time I brought my allegations forward.

Queensland police officers took my statement over three sittings. The police officers were extremely skilled in dealing with people who are recalling traumatic events.  They asked me for details of clothes, music, houses and asked for pictures of me in those clothes, they asked who I had told, and they asked for contact details.  I remember realising, while sitting in the police station, that people I hadn’t spoken to for years will be getting a call to ask what I had told them through drunken tears when I was seventeen years old. 

Rape occurs in the dark, away from the eye of respectable society, it happens where no one will hear a scream, it happens away from any other witness but the two people involved, and those testimonies will usually be opposing. Both victims and sexual offenders follow patterns, and it is the recording of testimony around those patterns that become vital in the prosecution of a crime that has only two witness and no material evidence.

I told almost no one when I was going through the legal process, and I was terrified. People are all stunning and brave about #MeToo, but in reality, people hate talking and thinking about rape and sexual assault, it makes them deeply uncomfortable. Survivors are sometimes silent, not because of how it makes them feel, but how it makes other people feel.

The police were very clear with me that even if there was enough evidence to go to trial, my story would be subject to rigorous prosecution by the lawyers who represent the rights of the accused. I was told that I should expect to be called to answer questions by the defence that might be aggressive, upsetting and accusatory.  Thanks to the work of the Queensland Police Service, the trial led to prosecution and a prison sentence.

I watched as much as I could stand of the independent board of inquiry into the ACT criminal justice system’s handling of the Brittany Higgins case.  One of the most shocking things I heard was the testimony of Heidi Yates, the ACT Victims of Crime Commissioner.  I was so astounded, I recorded part of it on my phone because I couldn’t believe it would be kept on the public record.

Yates openly stated that she was the first point of contact for Higgins after she had been introduced to Higgins by David Sharaz. Yates not only accompanied Higgins to the initial police interview but to interviews with prominent politicians, including the Prime Minister.  The ACT Victims of Crime Commissioner become the primary contact for the police in the Higgins matter.

The unit Yates heads, Victim Support ACT, is part of the Human Rights Commission and Yates was identified on the screen of the live footage as an activist as well as a lawyer. Yates admitted to the inquiry that she reflected on the intervention she made in the police interview with uncertainty.  In a bizarre turn of phrase Yates said she intervened in the interview “in real time”, as if some other kind of time exists in a police interview. She said she intervened to “immediately ameliorate” what she “saw as comments that Ms Higgins was distressed by”.

The comments in question, made by Detective Superintendent Scott Moller, were directed Ms Higgins, directing Higgins to stop engaging with the media if she wanted to avoid prejudicing the case.  Yates noted the instruction was delivered in a firm tone, accompanied by hand gestures and followed by a the warning by DS Moller that if the case couldn’t go ahead, “it would all be for nothing”. These were the words Yates sought to “immediately ameliorate”.

Hearing Yates admit to intervening in a police interview was astounding enough, but at this point of the inquiry Walter Sofronoff KC, who headed the enquiry, seemed to seek to clarify the point Yates was making by re-casting the scene of the interview at the police station in gender equity terms.  Sofronoff said “so the police officer said something in a hard tone, your respective positions were two women seated, five men standing”. Heidi Yates had to intervene in Walter Sarnoff’s reframing of her testimony, to correct him that one of the police offices was female and they were spread out across the room and not standing.

Remember the testimony of the victim is the most important piece of evidence that the police have in an incident with two conflicting witnesses and little material evidence. The police in this matter had the additional complication of the politics and they were seeking to establish if they could bring the case to trial, which is their job.  

It seemed to me in listening to the scene being set by both Yates and Sofronoff, in the most lawyery of tones, that the police were being cast as people lacking in the higher sensibilities that one would need to see the larger picture of the Higgins case in our nation’s political capital.

When asked to clarify her motive in the intervention, Yates said she intervened to “affirm” that Higgins had achieved “important systemic action” to improve “systems” that would stand “even if the criminal charges process couldn’t go ahead.”

Just to reiterate, a human rights lawyer and activist interfered in a police interview of the key witness in a potential rape trial, and she did so to “ameliorate” the comments of a Detective Superintendent who is a constitutionally bound to and serve and protect the people.  Those comments were ameliorated in order to affirm the victim’s role as an activist for “systemic action”.

What is this “systemic action” you may ask? The only thing that we can see as evidence of “systemic action” following the Higgins sexual assault allegations, was the report undertaken by the by the Sex Discrimination Commissioner Kate Jenkins into the culture of Parliament House as a workplace. 

The Sex Discrimination Commissioner falls under Australian Human Rights Commission (AHRC). The Report called “Set the Standard” was considered by Kate Jenkins as one of the more important achievements of her time as Sex Discrimination Commissioner.  In an interview with 7:30 Report Kate Jenkins said that the Set the Standard report saw “Significant change, very quickly”.

In line with the recommendations of the Set the Standard report, the federal government have allocated “$159 million over the next four years ... to increase frontline electorate staff for each parliamentarian” in response “to the Jenkins Review, which raised concerns over the workloads of electorate and parliamentary staff.”

The West Australian reported that the “funding for electorate staff works out to be $39.9m a year and across the 226 parliamentarians equates to $172,000 each.”  The funding will also increase travel expense entitlements for every parliamentarian, allowing family to travel with politicians “to support an increased capacity for parliamentarians to be engaged and responsive to the increased needs of the community”.

All this additional money for politicians, disproportionately male, has been generated by staff, labour and rationale provided by an office that is paid to represent the vulnerabilities of sex under the AHRC. Let me highlight what the ARHC have been doing to women’s rights recently.

The AHRC have enthusiastically taken on a range of contentious right claims from LGBTQ organisations that are not grass roots rights claims, but those developed and grown in the government itself, with its own dollar. 

As opposed to gay and lesbian rights claims, that formed the basis of gay rights organisations, rights claims of the TQ are grown in universities under the direction of elitist international social justice ideologies based primarily in the analysis of cultural power relationships. 

The superpowers of the TQ, what is generally called queer theory, are the discursive technologies that override the realities of sex with the theoretical power analysis of culture (gender). Gender has become a tool of government to recast protection legislation to completely abandon the most basic of protections that women and girls need from sexual assault and their ability to move about in society with the trauma their bodies carry.

The AHRC has teamed with the Australian Sports Commission to produce “guidelines for the inclusion of transgender and gender diverse people in sport”.  One of the case studies in the guidelines is used as an example of the moral and legal dangers of the failure to open the women’s changeroom up to trans and non-binary identified male people.

The case study makes the claim that “not providing access to the women’s changeroom disadvantages the transgender and non-binary members of the … team”. The transgender persons, we are told may need to “leave work early so they can get changed at home, or get changed in the carpark”. 

Equity ideologies generated on the government’s dollar for the purposes of government, move rights claims away from the vulnerabilities of the body and into theoretical power relationships that they themselves define.  These imaginary power systems generate forms of oppression evidenced by men changing in carparks so the change room doesn’t kill his gender identity. The reality of a trauma response for a girl who is forced into a confined space with a naked stranger, is of no consequence to the faux feminists who walk the halls of power.

Women and girls are being told that there are no “problems” with the inclusion of males in facilities and services designed exclusively for females.  By “problems” they mean prosecuted sexual assaults on the bodies of women and girls.  This live experiment on female bodies, is to test the thesis that gender identity in males abates male patten violence.  The thesis presupposes that no male will make an identity claim solely to access female facilities and services.

Until women and girls are raped, and in significant number, and those rapes are prosecuted, recorded and studied by universities with peer reviews, women are branded as hateful to claim they would like facilities to be managed by sex and not gender identity.

The AHRC guidelines claims that preventing access to the female change rooms to trans and non-binary identified male people “may amount to unlawful indirect discrimination on the basis of gender identity”.  This is not settled law in Australia, but it is a legal threat involving the violence of the society (ie. the police) for noncompliance of women.  The removal of women’s sexual boundaries with shame and threats of violence, is rape culture.  

The dignity and comfort of sexually traumatised girls who wish to play sport, are never taken into consideration by the AHRC, even though girls are the most sexually assaulted cohort in the nation. The message to women and girls, is that they can have no respite from men’s sexuality in the change room and no freedom from male violence on the sporting field. 

Australian women are being handed systemic rape culture by the AHRC, while their trauma is being used as political capital to claim higher income and better conditions for the most privileged men and women in our nation. 

Unlike many people, I’m not suggesting rape is not political, rape is political, but those who claim the political capital for the cost of rape on women and girls in Australia do so to reinforce their own power and privilege.  The culture war is a class war that is being played out before our eyes in the Higgins affair.  If you find yourself attacking Higgins or Sharaz, I suggest you zoom out for a broader perspective.