
He said, she said: Investigating the Christian Porter Case
ArticleLaw + Human Rights
BY Louise Richardson-Self 10 MAR 2021
On 4 March 2021 Attorney General Christian Porter identified himself as the unnamed Minister who had been accused of a 1988 rape in a letter sent to the Prime Minister and some senators.
He strenuously denies any wrongdoing and has refused to step down from his role.
ABC News reports that ‘the letter urges the Prime Minister to set up an independent parliamentary investigation into the matter’ — but should there be an investigation?
The Problem With Testimony
When it comes to accusations of sexual assault, it seems like the situation comes down to a clash of ‘testimony’ — she said, he said. But who is to be believed?
Testimony, to clarify, isn’t just any old speech act. Testimony is speech that is used as a declaration in support of a fact. “The sky is blue” is testimony; “I like strawberries” isn’t.
Generally, people are hesitant to accept testimony as good, or strong evidence for any sort of claim. This is not because testimony is always unreliable, but because we think that there are more reliable methods of attaining knowledge.
Other methods include direct experience (living through or witnessing something), material collection (looking for evidence to support the truth of a claim), or through the exercise of reason itself (for instance, by way of logic or deductive reasoning).
In this case, it seems like what would need to occur is a fact-finding mission which could add weight either to the testimony of either Porter or the alleged victim.
What is very surprising, then, is that only some people support such an investigation, while others have rejected the move as unnecessary, including Prime Minister Scott Morrison. These people deem Porter’s testimony credible. But should they?
Judging Credibility
It isn’t strange to find that people are willing to treat testimony as sufficient evidence for a claim. We often do. Testimony is used in trials. Every news report is testimony. The scientific truths we have learn from books or YouTube are testimony. You get the picture. We may think we are always sceptical of testimony, but we could hardly get by without it.
So, we do rely on testimony. Just not all testimony. When it comes to believing testimony, what we’re really doing is judging the speaker’s credibility. The question is thus: should we trust what a specific person says about a specific matter in a specific context?
The problem is that we’re actually not very good at working out which speakers are credible and which aren’t. Often we get it wrong. And sometimes we get it wrong because of implicit biases—biases about types of people, biases about institutions, and the sway of authority.
As philosopher Miranda Fricker has pointed out, when people do not receive the credibility they are due—whether because they receive too much (a credibility excess) or too little (a credibility deficit)—and the reason they do not receive it is because of such biases, then a testimonial injustice occurs.
“Being judged credible to some degree is being regarded as more credible than others, less credible than others, and equally credible as others,” explains philosopher José Medina.
In a she said, he said case, if we judge one person as credible, we’re also discrediting the other.
Fricker explains that testimonial injustice produces harms. First, there is a harm caused to the listener: because they didn’t believe testimony they should have, they failed to acquire some new knowledge, which is a kind of harm.
However, testimonial injustices also harms the speaker. When someone’s testimony is doubted without good reason, we disrespect them by doubting their ability to convey truth – which is part of what defines us as humans. This means testimonial injustices symbolically degrade us qua [as] human. Basically, to commit a testimonial injustice means we fail to treat people in a fundamentally respectful way. Instead, we treat them as less than fully human.
Is there a Credibility Deficit or Excess in Porter’s case?
Relevant to the issue of credibility attribution in the wake of a sexual assault allegations is the perception (and fear) shared by many that women lie about sexual assault.
In fact, approximately 95% of sexual assault allegations are true. This means it is highly improbable (but not impossible) that the alleged victim made a false claim.
It is not just stereotyping about lying and vindictive women that can interfere with correct credibility attribution. As Treasurer Josh Frydenberg has reminded us, Porter “is entitled to the presumption of innocence, as any citizen in this country is entitled.”
This commitment we share to presume innocence unless or until guilt is proven is a significant bulwark of our ethico-legal value system.
However, in a case of “she said, he said”, his entitlement to the presumption of innocence automatically generates the assumption that the victim is lying. Given that false rape allegations are so infrequent, the presumption of innocence unfairly undermines the credibility of the complainant almost every time.
This type of testimonial injustice may seem unavoidable because we cannot give up the presumption of innocence; it is too important. However, the insistence that Porter receive the presumption of innocence rather than insisting we believe the statistically likely allegations against him may point to another problem with the way assign credibility.
As philosopher Kate Manne has observed, particularly when it comes to allegations made by women of sexual assault by men, the accused are often received with himpathy—that is, they receive a greater outpouring of sympathy and concern over the complainants. She explains, “if someone sympathizes with the [accused] initially…he will come to figure as the victim of the story. And a victim narrative needs a villain…”
So here’s the rub.
If a great many people in a society share the view that women lie, then they tacitly see complainants as uncredible.
And if a great many people in a society feel sorry for certain men who are accused of sexual assault, then they are likely to side with the accused. In turn, those who are accused of sexual assault (usually, men) will automatically receive a credibility excess.
Is this what has happened in Porter’s case? Note that an investigation could lend credibility to either party’s claims. This is where the police would normally step in.
Didn’t the Police Investigate and Exonerate Porter?
You would be forgiven for thinking that NSW Police had conducted a thorough investigation and had cleared Porter’s name judging by the way some powerful parliamentary figures have responded to Porter’s case.
For example, in his dismissal of calls for an independent investigation, Scott Morrison said that it “would say the rule of law and our police are not competent to deal with these issues.” Likewise, Treasurer Josh Frydenberg said: “The police are the only body that are authorised to deal with such serious criminal matters.” Nationals Senator Susan MacDonald also opposed the investigation, saying: “We have a system of justice in this country [and] a police service that is well resourced and the most capable of understanding whether or not evidence needs to go to trial — and they have closed the matter.”
Case closed. This must mean that there’s no evidence and that an independent inquiry would be pointless, right?
Not quite. NSW Police stated that there was “insufficient admissible evidence” to proceed with an investigation. They did not say that there was no evidence of misconduct. Moreover, the issue for criminal proceedings is that the alleged victim did not make a formal statement before she took her own life.
In other words, the complainant’s testimony does not get to count as evidence because, technically, there is no testimony on the record.
Preventing Testimonial Injustice
Since the alleged victim had not made a formal statement to Police at the time of her death, the call for an investigation into Porter’s conduct can be seen as a means of ensuring Porter does not receive a testimonial credibility excess and the complainant a testimonial credibility deficit.
To stand by Porter’s testimony in a context where it is widely – and falsely – believed that women make false rape allegations, and where the police are seen as the only body capable of exercising an investigation (when in fact they are not), would be to commit a testimonial injustice.
As former Liberal staffer and lawyer Dhanya Mani says, “The fact that the police are not pursuing the matter for practical reasons does not preclude or prevent the Prime Minister from undertaking an inquiry into a very serious allegation… And that inquiry will either exonerate Christian Porter and prove his innocence or it will prove otherwise.”
It is important to understand that an independent investigation is not bound by the exact same evidentiary rules as are the police and courts. It may be possible for others to testify on her behalf. Other evidence which is inadmissible in court may be admissible here. An independent investigation at least offers the possibility that the complainant’s testimony will get a fair hearing.
Also worth noting is where the presumption of innocence would end. For a crime, guilt should be proved beyond a reasonable doubt. For civil cases, that standard is “on the balance of probabilities”. What standard should an independent investigation use? I would suggest the latter, precisely because testimony is likely to be all the evidence there is.
To prevent a testimonial injustice—attributing too much credibility, or too little, to someone undeserving of it—these allegations must be investigated.
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BY Louise Richardson-Self
Louise Richardson-Self is a Lecturer in Philosophy and Gender Studies at the University of Tasmania and an Australian Research Council Discovery Early Career Researcher Awardee (2019). Her current research focuses are the problem online hate speech, and the tension between LGBT+ non-discrimination and religious freedom. She is the author of Justifying Same-Sex Marriage: A Philosophical Investigation (2015) and her second book, Hate Speech Against Women Online: Concepts and Countermeasures is due for publication in 2021.
21 Comments
It is not in my opinion, an issue of credibility. It is one of decency and integrity.
Any lawyer , such as Porter, should be aware that in the absence of a complainant , there can be no charge .
There was never a need to treat it as a criminal charge because a prosecution could never proceed.
The situation however required some sensitivity and some humanity.
A woman had deceased in apparent response to something she believed had occurred, accurate or not , was hardly the point.
A different way of dealing with the matter would be to make one short discrete comment and leave it alone.
Instead there was an indecent campaign , multiple denials and finally litigation supposed to vindicate the plaintiff.
So disrespectful, so self absorbed, so well, unethical. And the finale , secretly funded. Breathtaking in its arrogance.
An excellent article. Thank you for setting out the facts clearly. This has gone quiet in the media.
ReplyExcellent article. But when was it that women in Australia told lies ? I have wondered about this many times – when i have been telling the truth. Why’s it so hard to believe what any woman says? I find it difficult if not impossible to tell lies. My parents treated me better if i told the truth. If i lied, that was a bad offence. In most other countries i have visited, i have not met with the suspicion – and sneering – that seems to be normal here.
ReplyI really appreciate this article. Thanks for introducing me to some new concepts (e.g. excess credibility).
p.s. I think there’s a typo … see Juding Credibility par, second line … should read “we have learned” …
ReplyFalse Memory Syndrome is a very real thing, made more real by mental illness. It is one of the reasons why the woman and her family chose to withdraw the complaint. Whilst your overall article is sound, the bias is still obvious.
Replyjust wondering if generally, victims can take any sort of civil legal action in these situations?
ReplyHow long ago this happened surely must be taken into account. Stories get bigger as time goes by, even in other people’s minds. They were apparently in their mid teens at the time, maybe neither fully knowing or understanding what was allegedly unfolding – I don’t know as apparently no one else was there. Our ability to accept facts and the truth these days is surely waning, influenced by bias and the media / social media where more and more people are believing and acting on what they want to believe is the truth and the facts whether it is the factual truth or not – it doesn’t seem to matter to them.
ReplyThe presumption of innocence doesn’t necessarily entail the presumption that the potential victim’s testimony is untrue; the prior presumption is forensic in nature and designed to place the onus on the prosecution. in other words, the presumption of innocence is not analogous to stating that the alleged perp is innocent. if the prosecution fails to establish the validity of the alleged victim’s testimony, again, that doesn’t mean its untrue, it just means that the prosecution did not establish it beyond reasonable doubt. its a subtle distinction, but an important one
ReplyWhile it may be true that there are few cases of documented false rape accusations (though these do exist), in this case the complainant reports herself she had been treated and hospitalised (including involuntarily) for severe mental illness over a long time. She also wrote that her own recollections of the 30+ year old incident were “surreal” and that she was “dissociating” repeatedly at that time. Plus there are several documented incorrect facts in her accounts. Given the clearly disturbed nature of the writings that have been quoted verbatim in the press, her own accounts must be viewed as highly unreliable. Yet in the absence of forensic evidence, direct witnesses or video footage of the alleged rape itself, that is all there is. False rape accusations may be rare in the general community, but that is not necessarily so for those who suffer manic attacks (a feature of the bipolar disorder she reportedly suffered from) or dissociation. So yes, in the absence of reliable evidence, the AG is entitled to be considered innocent unless proved guilty by evidence other than hearsay.
ReplyHowever, this article doesn’t actually suggest that the AG isn’t entitled to be considered innocent unless proved guilty by evidence other than hearsay. What the article actually points out is the lack of investigation (see the final sentence).
The quote included in this article from former Liberal staffer and lawyer Dhanya Mani also demonstrates that: “The fact that the police are not pursuing the matter for practical reasons does not preclude or prevent the Prime Minister from undertaking an inquiry into a very serious allegation… And that inquiry will either exonerate Christian Porter and prove his innocence or it will prove otherwise.”
Replyi’m just astonished that the psychologist felt the need to speak ill of the dead
ReplyDr Rouse, given that this discussion is largely about credibility excesses etc., it would seem your field within Psychology doesn’t give you the standing to make these arguments while using that title.
ReplyDidn’t the accuser have mental health issues, specifically bi-polar disorder? My sister is bi-polar and you can’t believe a word she says. Why was this left out of this article isn’t this very relevant?
ReplyOn the contrary. Delusional thinking is very common with bipolar disorder.
ReplyAh, I wonder when somebody would say that. But at the same time just because the woman in the case had mental health issues does NOT mean that she can’t be believed. The trauma she may have gone through may have caused the mental health problems. The claim you make is an easy fallback position to those who automatically support Porter, who is going through his own self-declared mental health issues at the moment. But somehow that is not being used against him. Oddly he seems to have enough energy though to commence defamation proceedings.
ReplyHi David
I also have a sister and other family members that have mental health conditions; although, that has nothing to do with their recollection of what happens or did happen in a situation where they felt violated, forced, or disrespected. If you only knew that most women who end up with a mental health issue is because of their abuse. Do the research yourself via a good psychiatrist.
ReplyExcellent analysis, thank you. I have been worried by the legal and technical discussion, that really doesn’t go far enough. It is an issue that cannot be resolved by our legal system. However a well thought out investigation may discover more. It is interesting that our legal system (police and courts) has failed to adequately deal with corruption in Government and we have had to set up Corruption Commissions to deal with the problem.
ReplyInteresting article. Is the document that has been sent to Morrison, etc. actually a “testimony” though? I’d also argue that “Every news report is testimony” is a complete falsehood – especially these days as biases come into play and “facts” are often distorted.
ReplyGreat – and necessary – article – thank you. Everyone needs to read this. But will our so-called leaders?
Reply
Join the conversation
Is there a credibility deficit in Christian Porter’s case?