The crisis surrounding Labour’s response to alleged sexual assault by a staffer lays bare the inadequacy of our current system, writes Danyl Mclauchlan
I’ve worked at, or been involved with progressive organisations where someone gets accused of – well, something: no one is quite sure what. The details are disputed. Lawyers are involved. If the accused is somebody creepy everyone else thinks, “I hope they get him,” but if it’s someone you know and like, or someone valuable to the organisation, or both, most people behave the same way the Labour Party appears to have with its latest catastrophe. Even if everyone believes in the MeToo movement, everyone believes that you should believe victims, believes that it’s everyone’s responsibility to do something about sexual violence, there’s still a very strong incentive to think, “I hope that’s not true,” and forget about it, or, more chillingly, “I hope nothing comes of it.” And, of course, most of the time, nothing does.
Sometimes people in positions of authority do the right thing: they believe the victim and dismiss the alleged abuser, but they’re never rewarded for it. The accused brings in a lawyer, and they can almost always point out that there’s been no police complaint, let alone an investigation, let alone a trial, let alone a conviction. You can’t fire someone who’s done nothing wrong! So there’s a payout, and from the point of view of the organisation, the manager or HR department who tried to do the right thing and protect their staff is often seen as having wasted a lot of money firing someone who might even be well-liked and valuable.
I’m not here to defend the Labour Party. They’ve done an unusually terrible job here, and these are senior figures in the party that runs the country. Jacinda Ardern made a very public, global commitment to the MeToo movement and yet … There’s a theme emerging for this prime minister: the articulation of progressive causes in the international media, followed by a conspicuous failure to deliver on those values. Ardern’s great strength as a leader is her authenticity, but as each week goes by she looks increasingly cynical.
But my point is that it’s difficult for people to do the right thing when all the institutional and legal incentives reward them for doing the wrong thing. There’s a common thread to most of the MeToo stories we’ve seen in New Zealand over the last two years. They’ve been about political parties, law firms, media organisations, universities: urban, nominally progressive organisations where victims are educated and aware of their rights; they’re aware that their institutions have failed them, and they have access to the media to highlight those failures.
The media is currently functioning as a partial alternative to the criminal justice system. Everyone knows that the police and courts don’t deliver just results in the vast majority of sexual assault cases, so some victims are routing around it. And this sometimes delivers an approximation of justice, but even when it works it doesn’t work very well. And it’s a form of justice very few victims have access to.
There’s often an assumption in progressive circles that problems like sexual violence can be solved if you put the right kind of people with the “right values” in charge. People like Jacinda Ardern and Grant Robertson and their advisers are “the right kind of people” with progressive ideological and moral values, yet on their watch we’ve seen something worse than the rightwing government that preceded them. In John Key’s second year one of his ministers was accused of … something: “making a nuisance of himself toward women” was as close as we got to a description. Key demanded the minister’s resignation and publicly announced that if he hadn’t resigned he’d have been sacked. Many months after the incident at the heart of Labour’s scandal the alleged attacker is still a staffer in the Labour leader’s office. If you put “good people” into bad systems you usually break the people rather than fix the system.
The failure at the heart of this is the inability of the criminal justice system to investigate, punish or prevent sexual assault. Everything flows from that. Labour keeps insisting that it isn’t the appropriate organisation to investigate allegations of a sexual assault, and in one sense this is true, but it omits the fact there is no appropriate organisation. They were all the woman felt she had.
This isn’t a new insight, or a new problem. Everybody knows. The Law Commission has done extensive work on the development of alternative models for prosecuting and trialling sex crimes. There’s been discussion for years about whether the police are the appropriate organisation to investigate sexual assault cases, or whether this is a task for a new specialist organisation analogous to the Financial Markets Authority or the SIS. The system is broken. There are solutions.
This government is probably not the government to deliver complex justice sector reform, although it is very much the government to announce that it intends to, and then lavishly congratulate itself for its courage. Even that would be a start. A project for future governments to deliver, and a small way for a Labour-led government to begin to redeem itself for the causes and victims it has failed.