This article contains descriptions of sexual assault.
It’s been a long time coming, but it looks like Alan Jones will finally be getting his George Pell moment. Step cautiously, for — as it was with the cardinal — we are entering a minefield.
The facts are that Jones was arrested yesterday and charged with 24 offences: aggravated indecent assault, assault with an act of indecency, sexual touching without consent, and common assault. This morning police said they had laid two additional charges relating to a ninth alleged victim. The alleged crimes spread over two decades. Jones was released on bail and will face court for the first time on December 18.
We can deduce some specifics from the charges. The language indicates that some of the alleged offences took place before 2018 and some after. That year was when the old crime of indecent assault was replaced with that of sexual touching. In criminal law, the offence you get charged with is the one that existed when you allegedly committed it; the law doesn’t apply retrospectively.
There are no charges of sexual assault, meaning no allegations involving penetrative sexual acts. Sexual touching is defined by the NSW Crimes Act as touching with any part of the body or anything else, directly or through anything (such as clothing), “in circumstances where a reasonable person would consider the touching to be sexual”.
The common assault charges may relate to alleged acts that were physical in nature but not overtly sexual. It’s not unusual to see them combined with sexual offences in cases of alleged serial offending.
Sexual touching is treated by the law as being of lesser seriousness than sexual assault. It covers a wide range of acts, including the proverbial bottom grab and really gross violations of bodily autonomy. We should not speculate on what exactly Jones is alleged to have done.
Which brings me to how we got here and how the spectacle is likely to play out. It’s been nearly a year since The Sydney Morning Herald broke the story about Jones, splashing out detailed allegations from multiple men who said they had been violated by Jones over the decades of his very public life.
The Herald couldn’t resist, when breaking the news of Jones’ arrest, repeating the gory detail of what it had previously reported, in the same article. It did not state, as it should have as a minimum, that the charges laid against Jones are not necessarily on the allegations the paper ran. It only noted that, last December, Jones had threatened to sue over the story, but hasn’t done so.
The casual reader would justifiably take away the impression that the case against Jones is what the Herald reported a year ago. That’s problematic, since it pre-empts the entire criminal proceeding by populating the bare outline of the charges with a set of facts and assertions of guilt that may be irrelevant but are certainly prejudicial.
Inevitably, Jones’ case will raise the spectre of sub judice contempt, which dogged the Pell saga from start to finish. This class of contempt of court exists to preserve the integrity of the criminal justice system in particular, and jury trials most of all. The rule, in simple terms, is this: from the moment someone has been charged, until all appeals are exhausted, shut up.
The idea is to preserve the presumption of innocence for the accused, forbidding trial by media and the attendant risk of infecting potential jurors with predeterminations of guilt. In an extreme case, a trial may have to be postponed (as happened in Bruce Lehrmann’s rape trial after Lisa Wilkinson’s ill-advised Logies acceptance speech) or even aborted altogether.
The courts view this kind of thing with great disdain and not a little frustration. How hard, judges muse in their isolated chambers, is it for everyone to just wait for the system to do its work? They will, sometimes, impose harsh criminal penalties for this type of contempt (see Hinch, Derryn).
Over on social media (including our happy new home at Bluesky), the issue was being exemplified in real time. As soon as the news broke, it rained speculation, invective and schadenfreude, while a few wiser heads plaintively posted “please don’t, you’ll give him a mistrial” into the void.
The reality is that this will happen and nothing can stop it, because humans are human. When media wasn’t social, newspapers could be coerced into compliance, and not many people had pulpits large enough to make a difference (see Wran, Neville). Now, everyone holds the mic and sub judice as a concept has become as anachronistic as it is to use Latin terms as if they should mean something intelligible to everyone.
The courts don’t see it that way, and are fighting a fierce rearguard action for the standing of the system that still has them wear Santa Claus robes when presiding over criminal trials. This means that speculating about Jones’ innocence or guilt, or trawling over the evidence publicly ahead of the court process, is very unwise. I think the Herald itself has already overstepped the line.
The line, however, cannot hold. The courts must adjust their thinking to the realities of the digital age, with more transparency and less archaism. I’m not advocating a free-for-all by any means — contempt will continue to be an important bulwark for the rule of law — but wilful blindness to change makes for very poor outcomes.
Meanwhile, I’ll be shutting up about Jones’ prosecution because I’d like to see him — fairly — tried.
If you or someone you know is affected by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au. In an emergency, call 000.
For counselling, advice and support for men in NSW, Victoria and Tasmania who have anger, relationship or parenting issues, call the Men’s Referral Service on 1300 766 491. Men in WA can contact the Men’s Domestic Violence Helpline on 1800 000 599.
