Reckless claims will not revive republicanism
Written by ACM   
Thursday, 08 January 2015

Responding to an invitation from the Herald Sun to comment on the claims against Prince Andrew, and the impact on support for constitutional change to a (politicians') republic, Professor David Flint also comments on how the American legal system can encourage the making of reckless claims. The Herald Sun had argued in an editorial that the claims would revive republicanism, and invited both ACM and the aRM to comment.

His comments about Alan Dershowitz were made just before it was announced that he was commencing a defamation action.


The text of the opinion piece follows:

A 30 year old woman is claiming that when she was 17 ( and thus below the age of consent in Florida) she had sexual relations with Prince Andrew.

What has this to do with the Australian constitution?

In brief, nothing at all.

This is not only because Prince Andrew is fifth and will soon be sixth in line to the throne. Nor that he is likely to be further removed when Prince Harry establishes a family.

We have to put the claims in context. They are made in a last ditch civil case brought against American authorities about the handling of a criminal case against financier Jeffrey Epstein.

These claims have not been made under oath, nor tested under cross examination. They are made under a legal system which allows a lawyer to take a significant slice, often 33/3% to 45% of the vast sums US courts seem inclined to award. Unlike Australia there's no rule requiring losers to pay the winners costs, so there is no disincentive from making the most frivolous and reckless claims in the hope they will at least be settled.

Prince Andrew is not the only well known person included. So are Bill Clinton, some ''former prime minister'' and crucially, the prominent American lawyer Alan Dershowitz.

'My only feeling is,' Professor Dershowitz declared, 'if she's lied about me, which I know to an absolute certainty she has, she should not be believed about anyone else.'

'...I think it must be presumed all her allegations against Prince Andrew were false as well.'

Outraged by the accusation, Dershowitz, whose clients have included Patty Hearst, Mike Tyson, Michael Milken, and O.J. Simpson, has thrown down the gauntlet.

'You cannot allow these allegations to hang above you' he insists,'... you have to fight back with every resource and ounce of energy available to you.'

Americans know that when Alan Dershowitz is unleashed, stand by for the onslaught.

Now unless this claim is summarily dismissed it is likely to be caught up in a quagmire of legal argument and appeals.

In this event the allegations of under-age sex could linger for years.

It will be difficult even for Professor Dershowitz to have them resolved except in one place. That is the very important court of public opinion − where Dershowitz is no stranger.

We may expect the release of information which will be very damaging to the credibility of the complainants. In fact it was this very issue which led the prosecutors not to send Epstein to trial but to refer all the evidence to a preliminary grand jury hearing.

This led to a single charge of soliciting an underage prostitute. Under a plea deal, Epstein served an eighteen months prison term.

In suing about this, the complainants' lawyer is drawing a very long bow. Had this been a federal rather than state crime, a grand jury hearing would have been required under the constitution.

Even if the court were to find the authorities erred, it may make no ruling on the facts.

In the meantime the complainants' lawyer is no doubt very pleased that the media have treated these claims as highly newsworthy.

This reflects the intense newsworthiness of the royal family where even the Duchess of Cambridge's dress or Prince George's toys is given greater prominence than, say, the brutal elimination of minorities in the Middle East.
So will these claims make Australians hanker after some politicians' republic?

It would be unwise, but it would be consistent with their past practice, for Australia's republicans to hope at least in private that this will be the silver bullet which will revive their cause.

The 1999 referendum could not have been held at a better time for them. Not only was it just before the centenary of federation, the dawn of a new century and a new millennium as well as the holding of the Olympic Games in Sydney, the Royal Family had passed through difficult years with three divorces and the death of Diana Princess of Wales. And most politicians and the media were onside.

Worried by the weakness of their case, which centred on the diplomatic term 'head of state' so unknown it was not even in the Macquarie Dictionary, the republicans also mounted a snide campaign based on what they thought was the monarchy's Achilles heel. They said a No vote was a vote for King Charles and Queen Camilla.

If that didn't work in 1999, relying on mere claims in a last ditch lawyer incentivized case about the fifth in line is hardly going to revive Australian republicanism.

Nor will the end of the present reign. That will produce a worldwide retrospective on this long Elizabethan era, dwarfing interest in both the royal marriage and the royal birth.

Then there will be growing fascination with the Coronation, with its roots back to the Kings of Israel, and about the new Prince of Wales and his family. The monarchy will go on doing what it has always done, successfully renewing itself.
in the meantime Australians will be increasingly interested in real constitutional issues − indigenous recognition, restoring the federation and in their growing exasperation with the politicians.

What will increasingly concern them will be how to make the politicians accountable not just every three, four or six years in often confected elections, but accountable on very day of every week and of every month.