The trial of Ghislaine Maxwell in New York has been one of the most watched in recent years. Maxwell, a former partner of the deceased child sex offender Jeffrey Epstein, is now facing “decades” in jail after being found guilty last week of five offences including recruiting and trafficking of young girls to Epstein who sexually abused them.

While the jury verdicts have been acclaimed by victims’ groups and commentators as a welcome development in the hunting down of sexual assault perpetrators, this case shows the deep flaws in the US justice system that fails to protect against adverse pre-trial publicity and which imposes sentences that are disproportionate to the point of cruelty.

To be clear, this is not an analysis of whether Maxwell has been wrongly or rightly convicted, but is about justice not only being done, but being seen to be done.

We can assess the integrity of the concept of justice in the Maxwell case by looking at how it might have been dealt with in Australia. While this country is a long way from perfect in how it ensures an accused person is treated in the criminal trial and sentencing process, it does seek to prevent potential juries being tainted by trial by media and sentencing is driven generally by the need for proportionality.

Maxwell’s case is a prize example of trial by media. In the past few years there has been an avalanche of media dealing in detail with Maxwell, Epstein and the allegations of sexual abuse. The alleged victims of Maxwell and Epstein have provided, in graphic detail, their version of what they say happened to them when, as teenage girls, Maxwell introduced them to Epstein’s sordid world. This pre-trial publicity was, without exception, hostile to Maxwell’s character and actions, and she has been portrayed as the enabler of Epstein’s depravity.

Given this unrelenting hostile publicity how could it be said the jurors selected for the trial would be able to put out of their mind any views they might have had about Maxwell and Epstein? While there was an arduous pre-trial jury selection process, including questionnaires and directions from the judge about ignoring media, the failure of the US justice system, generally and particularly in this case, to allow for widespread suppression orders of the type used in Australia to curtail prejudicial media means the reality of their being some prejudice on the part of some jurors about Maxwell was highly likely.

Loading

As a senior US judge, Alex Kozinski, observed with refreshing realism, in 2015, “we have no convincing reason to believe that jury instructions in fact constrain jury behaviour in all or even most cases”.

We know from the case of Cardinal George Pell, acquitted by the High Court in 2020 after being found guilty by a jury in Melbourne, that relentless publicity casting him in a poor light before his trial was problematic.