“Surely, the complainants and Alan Jones would be better served by the sort of outcome reached in the Dyson Heydon case – an outcome that recognises the present circumstances of the complainants and Jones,” writes legal columnist HUGH SELBY.

Two elderly men, now retired from positions of influence and public visibility (one as a senior judge, the other as a radio host), both well off, have been publicly attacked for allegedly being too handsy many years earlier.

What they have in common is, first, a love of rugby. Dyson Heydon played into his 40s, and Alan Jones was a successful national coach.

Second, each has been accused by six complainants.

Third, there is a big age difference between the young complainants and the much older men.

That’s where the commonality apparently ends. And that’s the pity of it. The point of this article is that there should be more in common when responding to their alleged wrongdoing.

The allegations against Heydon were that, while serving on the High Court of Australia, he behaved inappropriately with young female staff.

The allegations against Jones, now being contested in a criminal hearing in the NSW Local Court, are that years ago he behaved inappropriately with young men.

Please note that the points made below do not, and cannot, reflect the totality of evidence available to those involved in these two cases. The media reporting of the two cases only provides a basis for raising some general issues, not to suggest where the truth lies in the two matters.

Consent can be so elusive

It’s a given that many of us dislike to be touched by unfamiliar, unwonted hands or lips, and that anything of a sexual nature done without freely given consent is not okay. 

That’s easy to understand. What always has, and always will, create difficulty is whether the circumstances can be interpreted – at the time of the activity – as amounting to consent.

Let’s take a walk. Two teenagers, called Sam and River (to allow for various sexuality preferences) are on a date. River clasps Sam’s hand with their own. There is no resistance. The hands stay interwoven. Anyone want to claim lack of consent?

They’re walking in a public park. The sun sets. They stand on the edge of the lake looking at the scene. Sam, still holding River’s hand, turns and moves their head to kiss River on the lips.

River moves to engage. That’s consent.

But if River moves their head away, or moves their free hand to their face it’s not consent. Sam can’t continue without it becoming an assault.

That’s easy to understand. But does consent one time imply consent to repeat the hand holding, the mouth kiss, or both when they meet again?

I’ll leave it to you, the reader, to answer that by your own life experience and that of your friends – assuming such a conversation is possible in your social circle.

The reporting of the Jones’ hearing has been short on either of the two complainants (so far only two have given evidence) repeatedly making it clear – by words or actions – to Mr Jones that he was not to do what they allege he did.

Both complainants are alleging multiple “unwanted kisses and/or handsies” over an extended period and in changing locations.

One complainant did, he claims, make his non-consent quite clear on one occasion, but otherwise, so it seems, failed to make it clear. What does that mean for consent or non-consent?

Consent, or an expectation that there was consent, can be inferred by the complainant freely and repeatedly coming to meet the alleged wrongdoer – be it at work, their home, or elsewhere. 

There are people, including some prosecutors, who refuse to allow the inference that past events create reasonable expectation. For them, each interaction between two people takes place in a reset garden of Eden. History means nothing to them.

Whether one accepts or rejects past conduct as relevant to considering consent or non-consent on a later occasion, there is still the question:“Is that all that needs to be considered to decide whether there was consent or not?”

No, it’s not. 

One complainant has referred to the power imbalance between him and Jones. “Power imbalance” means the control that one participant has over the other by reason, for example, of work superior to work subordinate, teacher and pupil, coach and player.

Power imbalance is also the result of an age difference. That’s something we now understand as a result of the child sexual abuse inquiries: that adults sexually abuse young people because they can.

The age difference reflects not only actual years between them, but also life stage. Allowing that every case is different, if a 62-year-old wishes to co-habit with a 40-year-old then we can assume each knows what they are doing. But, if it’s an 18-year-old and a 40-year-old, then there may, or may not, be questions about infatuation, coercive control, undue influence, emotional maturity.

Extend the age gap to 30, even 40 years, what then do we think about consent?

From the young adult’s point of view it’s likely “gross” to be touched up or kissed by someone so old; that is, consent is out of the question.

From the old person’s point of view is there anything other than a delusion to explain the notion that they could be attractive to a young adult? Any such delusion means that non-consent is never considered.

The point is not to offer definitive answers. The point is that such definitiveness is often not possible.

Who benefits from titillating criminal cases?

Given the uncertainty around “consent” we should question the appropriateness of criminal proceedings when there are real questions about what the totality of circumstances tell us about consent, and to what degree anyone can be satisfied about a lack of consent. 

The two complainants who have given evidence in the Jones’ hearing have had to endure days of cross-examination. 

That’s after sharing for public attention all the details of the alleged groping and kisses.

Would you like to sit in a witness box and answer questions, both supportive and aggressive, about aspects of your “sex” history?

Would you claim to be able to provide complete and accurate details about a sexual incident in your life that took place years ago?

Whether or not they suffered lasting trauma from those events, they can’t be unaffected by having to sit for days being attacked by a cross-examiner who repeatedly seeks to paint them as calculating liars.

Are these complainants beneficiaries or victims of our criminal justice system?

No criminal proceedings took place against Heydon; however, civil settlements were reached with complainants. That is, money was paid to some of them. That can be done without the alleged wrongdoer admitting to any misconduct. 

In civil proceedings, if the matter goes to trial, then the standard of proof is “balance of probabilities”, that being much lower than the criminal standard. 

There are time limits on civil proceedings; however, those can be got around if the parties co-operate.

The complainants in the Heydon case had given their accounts to an investigator appointed by the High Court some years after his age required retirement.

None of the complainants, nor Heydon, had to go into a witness box, nor did any of them have to front the media. 

Assuming that the remaining complainants in the Jones case give evidence of conduct similar to that alleged so far, and assuming no change to the strategy of lengthy, repetitive cross-examination (as based on the reporting by the media) then what is the public interest being served by this prosecution?

Surely, the complainants and Jones would be better served by the sort of outcome reached in the Heydon case – an outcome that recognises the present circumstances of the complainants and Jones.

Those circumstances include that: compensation is a much more useful result than a conviction or an acquittal; that revenge (if justified) brings at best passing joy; and, that if Jones is convicted how would any punishment of such an old man act as a deterrent to others?

Australia is a multicultural society with a blinkered, monocultural criminal justice system that is blind to the experiences of the countries around us. There is much flexibility in other systems from which we could learn and benefit.

Because of our narrow, somewhat blinkered approach, we gamble – at significant monetary and human cost – on achieving a rather empty retribution when useful recompense is much easier, quicker and beneficial.

That’s not something to be proud of, especially when the Heydon precedent is there.

Former barrister Hugh Selby is the CityNews legal affairs columnist. 

His podcast series, “Advocacy in court – preparation and performance” has a new Episode 21 (published on August 11) that draws upon this article. The podcast is available free on the best known podcast sites.

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