Smith Is Right To Stand By Assault Victims

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Stephen Smith had a tough press conference yesterday.

The Defence Minister had the uncomfortable duty of releasing some of the findings of no less than seven inquiries ongoing in his department. None of it made for happy reading. One, the DLA Piper report, named after the law firm tasked with the investigation, found 775 credible reports of sexual assault and abuse in the defence forces, some stretching back decades.

It’s a sobering report, full of oblique references to pain and abuse. The sheer number of instances, and their diversity, points to the size of the problem. To quote the report:

"They are made by men and women in respect of conduct by men, women and groups. They involve minors and adults. They span 60 years. They come from diverse geographical locations. They come from different parts of the Defence organisation. They relate to the full range of possible involvement in the ADF-training, normal duties, deployment, hospitalisation and so on. The incidents range from extremely serious to (relatively) minor. The behaviour complained of ranges from that which has never been acceptable nor tolerated, to that which, whilst not acceptable, has in the past been tacitly tolerated."

It’s now clear that some kind of systematic response will be required of the government. The idea of a Royal Commission has already been broached. Significant compensation will probably be required too. Millions, perhaps tens of millions of dollars, could be required. And criminal prosecutions may eventually flow — as they should — if compelling evidence is uncovered.

One criminal case about sex abuse in the military is already going ahead. This is the case proceeding in the Australian Capital Territory that deals with the so-called "Skype scandal", in which a student of the Australian Defence Force Academy allegedly streamed footage to several other students of a sex act in which he was involved. The live video occurred without the consent of the other student involved, who later went public with her accusations under the pseudonym "Kate".

The Skype affair was a major scandal for the ADF when it erupted in April 2011. Defence Minister Stephen Smith was blindsided, apparently finding out about it at the same time everyone else did, when footage of the cadet was aired on prime-time news — Ten Network reporters Matt Moran and Hugh Riminton in fact won a Walkley for the scoop. When he investigated, Smith discovered that a minor disciplinary matter had proceeded against the cadet at the very time she was the key witness in an allegation of a serious sex crime. Smith was furious, deciding to stand down the Commandant of the Academy, Commodore Bruce Kafer, a popular and long-serving naval officer.

As Smith told the ABC’s Fran Kelly at the time, "what that did was essentially put the perception about that the young woman who is potentially the innocent victim of a serious sexual abuse, was herself being punished, and her own character and conduct in unrelated areas, being drawn into attention."

Now, according to Andrew Kirkham’s investigation — at least what we know of it, because it has not been released in full — it appears that Kafer was merely following regulations to the letter. The Kirkham investigation has, we are told, comprehensively cleared Kafer of any cover-up; indeed, it states explicitly that he was not in error in acting as he did.

And this is where matters get confusing, because the Kirkham Inquiry has also found that Commandant Kafer didn’t need to proceed with those minor disciplinary matters. It was a 50/50 call, line-ball, either way.

"The Inquiry also found that, overall, neither the Commandant nor the Deputy Commandant made an error of judgement in their decisions to commence and conclude the disciplinary proceedings against the female Officer Cadet," Smith’s media release stated yesterday.

"The Inquiry also found that it would as well have been a reasonable course of action to not commence and conclude the disciplinary proceedings."

For his part, Stephen Smith stands by the remarks he made. "At the time, I said that I considered the decision to proceed to be a serious error of judgment, because it put into play and called into question the character of a potential victim of an alleged sexual abuse," he said yesterday.

"I remain of the view that this was an error of judgement."

There has been strident and predictable criticism of the Defence Minister since the Kirkham report was announced yesterday, not least from Australian Defence Association spokesman Neil James. James argues that Kafer was denied natural justice, should never have been stood outside, and should now be immediately reinstated with a fulsome apology.

I think that’s rubbish. It may be that, as a matter of law, "the Kirkham Inquiry found no legal basis for action against Commodore Kafer" and that Kafer went by the book. I don’t think that’s good enough, personally.

The Skype scandal involved a serious allegation of non-consensual sexual activity against an 18-year-old woman. While it is now clear that her allegations were treated seriously and properly by the Academy, it is also clear that the Academy also saw fit, in the wake of her allegations, to proceed with disciplinary actions against her on minor matters that were completely unrelated to her allegation.

How supportive is this? How sensitive is this? How likely is this to encourage other cadets, similarly wronged, to come forward and report similar misconduct? The answer is self-evident. "Kate" may not have been victimised in the ways that were alleged in April last year, but Smith clearly still believes the decision of Commandant Kafer to proceed on these disciplinary matters was wrong.

"I make no apology for making in public the very strong point that I thought it was an error of judgment to allow the character of the potential innocent victim of an alleged serious sexual abuse to be brought into play," Smith said yesterday.

Smith is right. If, as the Kirkham report seems to be saying, it was a matter of no legal significance whether or not "Kate" was disciplined, then surely she didn’t need to be — at least not immediately. In which case: why not employ a bit of discretion? I think Kafer did make an error of judgment in an admittedly charged and difficult case. If Andrew Kirkham’s full report is ever finally released, we may be able to drill down into the particulars and form a more nuanced understanding.

In the meantime, Neil James and the defence lobby should back off on their criticisms of Stephen Smith. So should the shrill commentators in the media, such as Dennis Shanahan. As I argued when covering this issue last April, the real reason Smith is the target of so much criticism is that he has been willing to stand up the military establishment and demand some accountability for the multiple failures in the Defence Department and the ADF.

Stephen Smith has defended the rights of young women who he believed was the victim of a sex crime. As the DLA Piper report makes plain, there is a pressing need for others in the military display similar courage. That’s a point worth noting this International Women’s Day.

Ben Eltham

Ben Eltham is New Matilda's National Affairs Correspondent.

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