In the midst of an ongoing gendered violence crisis, Australian journalists have come under scrutiny for how they refer to people subject to legal processes or involved in the criminal justice system. Some of that scrutiny has focused on reporters using language like “alleged” to refer to crimes not yet borne out in the courts, or otherwise criticises media for being cautious in their language around court processes.
A prominent example involves the case of former Liberal Party staffer Bruce Lehrmann, found recently to a civil standard to have raped colleague Brittany Higgins in Parliament House in 2019. Some members of the public have incorrectly taken Justice Michael Lee’s findings in the case to be equivalent to a criminal conviction, while others (including newspaper headline writers) have delighted in being able to refer to Lehrmann as a rapist, understanding the relative lack of defamation risk following judgment in a marathon trial.
Crikey spoke to a crime reporter and one of Australia’s leading media lawyers to explain why journalists use the language that they do, and how that language interacts with modern ideals around gendered justice such as “believing women”.
Dean Levitan is a senior associate at law firm MinterEllison, specialising in media law. He was recently on the front line of the biggest defamation case in Australian history, leading the legal team defending the Nine newspapers’ reporting on disgraced former soldier Ben Roberts-Smith, who was eventually found to a civil standard to have committed war crimes and murders. MinterEllison and Levitan are also engaged by Private Media, publisher of Crikey.
“The obvious thing is that people are innocent until proven guilty. That’s the starting point,” Levitan told Crikey.
“Until they’re convicted, they’re not proven to be, for example, a murderer. The legally accurate thing to say is that they’re an alleged murderer. ‘A murderer’ suggests conviction.
“From a defamation standpoint, there are imputations — a person can sue you not just on the [basis of] the words that you wrote, but on the meanings that are conveyed by what you write. And that means that if you don’t say something was alleged, then you give rise to a meaning that [the act] in fact happened.
“Then what happens if somebody sues you, you have to prove not that they’ve been charged, which is an easier thing to prove, not that they’ve been investigated … but they have in fact done these things. In which case, in order for you to defend that claim, you would have to … prove the underlying factual scenario.”
Beyond the risk of defamation, there are also implications for members of the media or commentariat in terms of contempt of court.
Levitan said that individuals often confuse the use of the word “alleged” and what it might actually refer to.
“For example if a person has [just] been killed, that’s uncontroversial. You don’t need to say ‘allegedly killed’, you can say killed. ‘Alleged’ is the word you apply in describing the role of the potential perpetrator — because that is still in contest.”
“Punters need to understand that the word ‘alleged’ is there for legal protection.”
Asked about whether there are tensions between the social mantra of “believing women” and the principles of the rule of law, Levitan said it was “really difficult”.
“There are legal thresholds that must be met, and a prosecutor’s job is to convince a jury to believe a woman. But it’s not assumed … so there is a tension — and the law is catching up, we’ve seen it in Justice Lee’s judgment and we’ve seen it in the way that there are now directions given to juries about, for example, the way that a complainant might react to abuse, or in response to abuse and things like that.”
An Australian crime reporter, who asked not to be named, said that the mantra “believe women” didn’t necessarily have a tension with the rule of law or presumptions of innocence.
“My understanding of it is that ‘believe women’ is a cry to basically get [society] to take complaints seriously,” the reporter told Crikey.
“It’s not about overruling the courts or a presumption of innocence, it’s more about not turning people away at the first opportunity, it’s about taking [complaints] seriously and listening to people.
“But we have to abide by the legal parameters … you need to have the presumption of innocence, it’s absolutely imperative. I think we just need to explain to people that we’re not disbelieving women or complainants, we take their allegations seriously [as media].
“We’ll report on everything accurately and honestly, because it’s not about the media. It’s about the courts and it’s about justice. If we derail justice through our reporting, that would be terrible.”
