There is a simple reason that we place the responsibility of conviction and punishment in the hands of the courts, to prevent the word 'justice' becoming synonymous with 'vengeance' or even worse, false prosecution. It is the responsibility of the court, professionals trained in the matter, to determine that an individual is guilty beyond a reasonable doubt, and to determine a just and proportional punishment.
If we lose that simple protection of procedural fairness we might as well start handing out nooses and gallows to any person or group who feels aggrieved. This is precisely what new laws drafted by Robert Clark, the Attorney General of the state of Victoria, will do. Buckling under pressure from vested interest groups, and in contravention of every principle of procedural justice that he (presumably) learnt in his passage through law school, Mr Clark has initiated laws that will allow those who have obtained a apprehended violence order against another person to 'name and shame' that person in the press. In his own words:
the reforms will allow adult victims to publish or authorise the media to publish the existence of a family violence safety notice or intervention order together with the identity of any offender who has been charged with (emphasis added) or convicted of contravening the notice or order and the identity of the adult victim.
Currently, such reports cannot be published without a court order, for a very good reason. The person being named and shamed has not been convicted of a crime. An apprehended violence order (AVO), and the accusation of breaching it, is in fact nothing more than the accusation of a criminal act. Their very existence is premised on the idea of 'guilty until proven innocent', and proving yourself innocent is almost impossible.
The reforms also give police the power to issue interim orders on the spot without having to go to court. Effectively, Mr Clark has just placed the power to accuse, prosecute and punish in the hands of any individual who wants it, and removed all accountability. No conviction is required, no evidence need be presented and no defence can be mounted. It's a simple three step process to ruin another person's life. Accuse them of being violent to you and obtain an AVO (no proof required), then accuse them of breaching it (no proof required), then go to the press.
Newspapers like the Herald Sun, who proudly claim responsibility for getting these laws created, will happily dish the dirt on your behalf. Indeed, these laws give the press the ability to publish malicious gossip about people, who have not been convicted of a crime, without the fear of the defamation laws they currently face. For trash journalism, this is the Goose that's about to lay the Golden Egg.
Once a person has been named in the press their reputation is effectively destroyed. Even if they were to somehow prove their innocence in the following proceedings, the damage to their reputation is already done.
So what's the rational for cutting the courts out of the system of prosecution and punishment? Apparently it is to protect the alleged victims of violence by 'empowering' them to publicly humiliate their alleged perpetrators.
Will it protect victims?
The simple answer is a categorical NO. Decades of research show us that punishments such as incarceration, public humiliation and even the death penalty will not deter a person from committing violence. This is because when people commit violence they are, generally speaking, not acting from a rational frame of mind. They are usually highly emotionally charged, the sufferers of a diagnosable mental health issue, and either drunk or high. In short, the part of their brain that has the ability to consider the consequences of their actions and inhibit their behaviours has taken a holiday.
Most people who commit violence also suffer from a profound sense of shame and worthlessness about who they are, and their violence is a defence against those self annihilating feelings. As you might imagine, publicly humiliating such an individual is more likely to increase their likelihood of becoming violent than it is to decrease it. The act of humiliating them will be seen as (and it is) an act of violence against them, and encourage retaliation. Any person foolish enough to do this is putting themselves at even greater risk. Being issued with an apprehended violence order (AVO) has been shown to increase the likelihood of a significant proportion of people reoffending, so imagine what being publicly humiliated will do.
Will it be abused?
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