Website of the YearOPINION
Women have been taking to social media to expose alleged sexual misconduct by a group of Wellington musicians.
The phenomenon of airing experiences via social media has been dubbed "digital vigilantism" but the phrase is as loaded and ironic as using "witch-hunt" in the same sentence as the #Metoo movement.
Instead, let's ask, is trial by social media the new form of justice?
To recap: at least 60 people, both men and women, have taken to social media with claims involving sexual assault, sexual harassment, drugging, and rape.
Police have since opened an investigation - calling it "Operation Emerald". Detective Inspector John van den Heuvel spoke to the media urging complainants not to report their experiences online.
"While we understand the concerns of the community in regard to this matter we ask people to refrain from using social media to name individuals or post any details suspected to be involved because this could incorrectly target the wrong people and have a negative impact on this investigation," he said.
While he could not speculate as to why the allegations unfolded on social media as opposed to coming directly to police, he said "social media is the 'here and now' and I don't think it's uncommon these days for matters to be brought forward to the public's attention".
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Advertise with NZME."There has been a lot of commentary on social media, not necessarily individual complaints."
When should mud stick?
On the one hand, mud sticks. But on the other, there is often substance to said mud in the context of alleged sexual predators.
In the case of Harvey Weinstein, for example, it was not so much a question of whether he was a predator - it was what would it take for the information to be released or believed, and when.
Recalling a conversation with Marie Dyhrberg QC around the pitfalls of the new Sexual Violence Bill - which has been at a standstill since July - she thinks it is better for a guilty man to walk free than to put an innocent man in jail.
What's more, she is opposed to describing complainants as victims or survivors as the notion assumes the allegations to be true. One could argue that for complainants turning to social media and curtailing the formal processes, alleged abusers are denied the principle of innocent until proven guilty.
Assessing impact
On a cultural and social level, one has to assess the impact of this presumption.
Statistically it is often quoted that 6-11 per cent of offenders are convicted, and it is estimated that only 1 per cent of all potential sex crimes result in a conviction.
But 2019 Ministry of Justice figures revealed 31 per cent of reports resulted in a prosecution - of those 36 per cent resulted in a conviction.
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Advertise with NZME.While it is hard to ascertain the level of underreporting, there is no denying the justice system provides disincentives for people to come forward - whether that is due to social constraints, fears of re-victimisation, the likelihood of conviction, or the very nature of having to bear the brunt of a he said / she said situation.
If there is a culture of getting away with it, what does that say to the next person who thinks about offending? That if there is a possibility you might walk free, where is the deterrent in the first instance?
Nobody puts baby in a corner
On a millennial and Gen-Z level, social media seems to be a vehicle for survivors to recount their experiences, find solace, and a sense of solidarity within their community.
Social media is also about social mobility: it offers an avenue to avoid bureaucracy and hierarchical structures - whether that is human resources, the justice system, or power imbalances.
Like the media principle of 'court of last resort', social media enables complainants to have direct conversations with the public. In this case it has meant some Wellington venues have banned the musicians in question.
Using social media also has its risks: one's Google search results could negatively impact a person's career and personal life. This applies to the alleged perpetrator and the complainant.
Then there is online trolling, and social ostracisation that comes with speaking out against a system that allowed alleged offending to occur in the first place.
Legal ramifications
In a legal context, using social media might impact the investigation or gathering of evidence; you may be subject to contempt of court if you're found to create a real risk of prejudice to a fair trial - which carries a fine of up to $25,000 or six months in jail.
There is of course defamation, where naming an alleged abuser with big pockets could see you having to front up to court. The cost of defending your truth or honest opinion could render anyone bankrupt.
Failing defamation, you could be dealt to under the Harmful Digital Communications Act.
If Netsafe finds the content to be threatening, offensive or incites suicide, for example, you could find yourself in court and sentenced to a fine of up to $50,000 or two years' prison.
For these reasons, it is of little surprise no media outlet has named the Wellington-based alleged perpetrators or the social media platform where the claims were made for legal reasons.
Another blow for the fourth estate
On a relevant but unrelated note, last week the NZ Lawyers and Conveyancers Disciplinary Tribunal released its decision to censure Christchurch lawyer Richard Andrew Peters for talking to the media about terrorist Brenton Tarrant. Peters represented Tarrant as duty solicitor, appearing for him in his first court appearance.
Peters spoke to a reporter from the Otago Daily Times in the courtroom, before giving an interview to RNZ two days later. The Tribunal found Peters to have breached the client care rules, saying "members of the public must be able to speak with their lawyers with complete confidence and trust that their communications and presentation will remain private".
"Lawyers must be able to hold to their obligations of confidentiality even in stressful and difficult circumstances." Peters was censured, not suspended, and ordered to pay costs of $13,000.
