The Australian: Operation Vest -Anonymity courts malicious intent, blights rule of law

COLUMNIST bHenry Ergas AO is an economist who spent many years at the OECD in Paris before returning to Australia. He has taught at a number of universities, including Harvard’s Kennedy School of Government

The rule of law suffered yet another blow late last month when the NSW police launched Operation Vest, encouraging the public to register anonymous complaints against alleged offenders on the Sexual Assault Reporting online platform.

The operation was apparently conceived in “a few weeks”, after Detective Superintendent Stacey Maloney, Commander of the Child Abuse and Sex Crimes Squad, had “kind of realised” that the platform provided a “way of empowering victims”.

The complaints the campaign elicits will not normally trigger an investigation, all the more so as they may involve conduct that does not amount to a crime. However, the alleged perpetrator is liable to be regarded as a “potential offender”, with the anonymously provided information being retained and used by the police “in future investigations”. That the police are entitled to seek anonymous reports goes without saying. But it should also go without saying that they are not entitled to capriciously class individuals as suspects, whose names figure in police files as possible risks to the community, without a shred of evidence above and beyond unsubstantiated claims made by individuals who have chosen to mask their identity.

On the contrary, the decision to treat a person as a potential suspect, and collect and store information grievously prejudicial to that person’s interests, is an administrative act of the utmost seriousness, which, as a matter of natural justice, can only be legitimate if it is based on credible grounds, including a careful investigation of each complaint’s plausibility.

The fact alleged perpetrators will receive no notification whatsoever, and will consequently not have an opportunity to clear their name — much less a chance to confront their accuser — compounds the gravity of those decisions and makes it imperative they be subject to rigorous, genuinely independent scrutiny, as occurs in cases involving national security.

None of that, it seems, was “kind of realised” by those designing this operation. Yet a moment’s consideration of the history of systems of anonymous mass denunciation would have highlighted the immense risks those systems pose.

No one summarised those risks better than Jeremy Bentham, the great British social and legal reformer. Whenever a “veil of secrecy” has been cast over allegations, he wrote in 1827, “the door has been left wide open to mendacity, falsehood and partiality”. And the greater the trust placed in anonymous denouncers, the more unfailingly disastrous the results have invariably been.

It was therefore no accident that the Roman emperor Trajan, knowing the damage secret denunciations had wreaked in the dying days of the Roman Republic, instructed Pliny the Younger that they were not to be relied upon in identifying suspected Christians or other offenders. Trajan’s prohibition, noted Ulpian, the pre-eminent jurist of late antiquity, “was devised so that no one would leap to an accusation knowing that he could do so without any risk to himself”.

And it was also no accident that the prohibition on secret denunciations — which was lauded in the Acts of the Apostles and regarded by the great canonists as an important element of natural law — became, in 1254, an early casualty of the Church’s decision to eradicate heretics.

The repeal of the prohibition, and the reliance subsequently placed on anonymous denunciations, was the Inquisition’s “crowning infamy”, Henry Charles Lea argued in his vastly influential history of that tragic episode; but as Patrick Bergemann’s Stanford PhD thesis on those denunciations confirmed, the impact of allowing anonymous accusations was greatly worsened by the fact “denouncers were assumed to be in good faith”.

In reality, Bergemann’s statistical analysis shows, “the system of secrecy was an invitation to perjury and malicious testimony”, with the unsurprising result that it was routinely “used as a cloak for political and private revenge”.

The Inquisition’s experience was hardly exceptional. Rather, from the Salem witch trials — which shielded denouncers both by allowing indirect forms of denunciation and by protecting complainants from defamation suits, which until then had deterred those who would launch accusations of witchcraft — through to the McCarthyite “Red Scares”, every system of mass denunciation has drowned in fabricated claims.

To take but one example, since Reinhard Mann’s pioneering book in 1987, there have been five detailed studies of denunciations made to the Gestapo in German towns. Averaging across those studies, for every denunciation that might even vaguely have been motivated by the Nazis’ objectives, there were nearly two driven by animus.

Robert Gellately, the leading authority on anonymous denunciations under the Nazi regime, goes even further, finding that “about 75 per cent of all denunciations” had “little or nothing to do” with the regime’s stated aims, instead reflecting jealousy, resentment or vendettas.

Indeed, as denunciations surged, the Gestapo itself took to publishing reminders in the press that it was not a “complaints bureau for personal spitefulness”. And, wrote Hermann Goring despairingly, “the denunciation of long past events” simply wasted the Gestapo’s time.

None of that implies the harm Operation Vest could inflict on those caught in its dragnet compares to the horrors routinely meted out by the Gestapo.

But that scarcely makes it acceptable, any more than the mere fact presumed perpetrators are not tortured to death could justify subjecting them to waterboarding.

Even less does it exempt that operation from the defects inherent in any system of mass anonymous denunciations — notably the incentive it creates for the bitter, the angry and the vengeful to lie, both individually and in collusion with others.

Sexual assault is, unquestionably, a heinous crime. But it is worth remembering that when Nicholas Eymerich, the distinguished 14th-century theologian who shaped the Inquisition’s rules, was asked how those rules could possibly be excused in the eyes of God, he famously replied that they were blessed, because “the crime of heresy is of such gravity.”

Ultimately, regardless of how dreadful the offence, or how hard it is to prove, justice has never been served by adding to the suffering caused by crime that of those wrongly labelled as offenders. And particularly in a climate verging on mass hysteria, justice can never be served by replacing dispassionate investigation, which treats complainants and alleged offenders strictly impartially, with a parody of policing that relies on denunciations cloaked in secrecy.

In earlier times, one might have expressed disappointment that it has come to this. But disappointment presupposes the hope for something better: that ship sailed, and sank, long ago. Instead, what we are left with is an operation that, we are told, is “centred on victims”. Of course it is — on creating them.

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