Foxton author Anne Hunt backgrounds the legal challenges she faced when she published her book about a woman who accused her therapist of rape.
Content warning: suicidal ideation and rape
My 2003 book Broken Silence was published too long ago to capture a readership mesmerised by the complexities of the #MeToo movement. It documented the fascinating account of a woman who claimed she had been raped by her therapist. He was found not guilty of criminal charges, but the lawyer representing this woman took a civil claim for punitive damages to the Privy Council before a confidential outcome was reached.
The first half of the book was based on medical files, including 687 disorganised pages written as therapy. The second half was founded on legal files: the nine criminal charges, the complaint to the professional disciplinary body, and finally the civil claim for punitive damages that was legally-aided to the Privy Council. The civil case was known as W v W.
Segments of the book were dark, very dark indeed. I was dealing with a woman diagnosed with a borderline personality disorder, a self-mutilator who attempted suicide so many times that I lost count.
The most graphic possibility was one she described in her therapy notes. He wants me to go to the grave, she had written. “Pour a circle of petrol around my feet, then douse my clothes … set fire to the ring… only when my clothes are fully alight can I jump into the pool… the flowers will float around me and I can die in peace, in the knowledge that I am clean and paid my dues to those I have left behind.”
In the foreword to my book, I posed the question: Was she raped during therapy?
It was genuinely a rhetorical question. In my foreword, I wrote: “Sexual violation is an offence which does not necessarily leave a trace of evidence, and too often guilt or innocence is based upon the credibility of the two parties involved – the defendant and the alleged victim.”
It was a conundrum that bothered me. I guess the reason I persevered with writing this book is my concern that the adversarial nature of criminal charges is far too traumatic and not an appropriate format for charges of this nature. That was the approach I planned to take with the media publicity inevitable to promote a book.
But then Broken Silence swiftly turned into a legal nightmare. It became the first – and only – book ever to be banned and ordered to be pulped by the High Court.
And at that point my focus changed. The ex parte order suppressing the existence of the proceedings is a legal term which translated into English means it was a secret trial to ban a book. I could not let even my husband know that I was facing legal proceedings in the Wellington High Court. If I lost, the other party was claiming more than my home was worth. My books were recalled from bookshops and libraries, to be placed in storage while I spent four years in the High Court defending these charges, and then appealing the decision to the Court of Appeal.
Broken Silence nearly broke my heart.
I first received the summons to appear in the Wellington High Court during November 2003. By May 2006, the court had fined me $1000, and directed me to pay $15,000 in damages to the health professional together with all his legal expenses. The judge also ordered the registrar to seize and destroy all unsold copies of my book. The print run was 1000 copies, and only 300 or so had been sold by the time the book was recalled. The remaining 650 copies had been placed in storage by order of the Court to await this verdict.
It was frightening.
Fortunately, Nicky Hager came to my rescue and recommended that I get in touch with his lawyer, Steven Price. For my High Court case, nobody had been prepared to take this case on, and therefore I defended myself, learning the procedures as best I could.
At some stage I put to Steven this question: How many books had been banned in this country following a secret trial?
But how can anybody know, if the trial is, after all, secret?
It was the first time Steven had argued a case in court, and he was magnificent, courageous as well. As back-up in the press gallery was none other than the acclaimed journalist, Phil Kitchin.
The day the Court of Appeal upheld my appeal and set aside all of the High Court orders was a huge triumph. The decision written up by Justice Grant Hammond was hailed as an important affirmation of free speech and open justice. Hopefully it helps journalists and authors tackling miscarriages of justice gain access to court transcripts and documents, so crucial for research. The grounds for contempt was a minute which the Court of Appeal described as “cryptic”. Hopefully my judgment encourages judges to provide more clarity about information that can and cannot be published.
For four years, I had battled judges and lawyers in the courtroom, not to save my books but for the right to shed the enforced shroud of secrecy.
Due to the blanket suppression orders issued ‘ex parte’, I had entered the closed chambers each time alone, with not a single person present to support me. Nobody was permitted to know my name, nor why I was there. My husband of 35 years would wait near a war memorial some distance away; a registered nurse ready to treat me for shock when I eventually emerged, emotionally and intellectually shattered. It would take days to recuperate.
The day my father was paraded through the streets of Wellington as a WWII veteran to commemorate VJ Day, I had been so distressed by my experience in the Wellington High Court a few hours beforehand that Paul, my husband urged me to capitulate. He told me he could not live without me. The next day, he apologised. Four months later, he was dead. A fatal heart attack.
After reading my manuscript for Broken Silence, “Annette” (the pseudonym I used for the woman at the centre of the allegations) declared that she would obtain a replacement writer more amenable to her demands.
Sensing this might be her reaction, I had previously obtained an agreement from her that I had permission to publish material that David Collins, my lawyer and hers, deemed appropriate.
I had already delivered the manuscript to David and collected it from him a fortnight or so later. His handwriting appeared on a total of 42 pages, and every single one of these annotations was incorporated into the final product.
In this #MeToo era, Broken Silence would probably have sold out within days.
Readers would be debating the very same issues that I confronted and documented.
Yes, I had managed to pinpoint the very day the most serious incident occurred, the alleged rape.
“Wayne”, the pseudonym used for the health professional, had impressive credentials and excellent character witnesses. Even though he’s now deceased, more than that I cannot say without identifying him.
Yes, I felt sorry for him, because he had saved Annette’s life, repeatedly. He had been at her beck and call because he had never lost a patient to suicide, a source of great pride for him.
And, yes, I discovered what happened, because I found a note following publication that confirmed my suspicions.
If anything, this note exposes the difficulties when one gender exercises power over the other.
Most of us have been brought up to believe that if we tell the truth, then everything will be all right, Annette wrote in the concluding comments in my book.
“But our justice system isn’t necessarily about that”, she adds. “Instead we lie and if we lie well enough, then we raise doubts …”
When Steven Price sent me the judgement from the Court of Appeal, I wept. Not with relief. Grief. Profound grief that Paul was not there to share that euphoria inevitable when a battle is finally won.
The remainder of my print run was shipped home to me. On that day back in 2007, bereaved and struggling to find the will to live, I glared at that pallet of books, and ordered a skip bin. I dumped the lot at the local landfill.
I’m sure Paul would have approved.
And I have never regretted that decision.