Jeremy Bentham on the seal of confession

Jeremy Bentham (1748-1832) was a philosopher, economist and writer on jurisprudence. He is most well-known for his development and expounding of utilitarianism. He considered that the object of legislation should be “the greatest happiness of the greatest number.” Bentham was an atheist, and a strong proponent of the separation of Church and State. In 1827, John Stuart Mill edited Bentham’s writings on jurisprudence into the five volume Rationale of Judicial Evidence.

His opinion concerning the seal of confession is of topical interest. In Rationale, Bentham considers the case where priests can be forced to testify concerning any felony, but the application to the case of child sexual abuse is obvious, though less widely applicable.

Bentham takes as context for his arguments a country in which Catholicism is “barely tolerated,” and its withering desired, though no coercion is applied to that end; for example, the United Kingdom of the early nineteenth century. Of countries where Catholicism is granted equal standing with other religions – contemporary Australia for instance – he writes that the necessity of protecting the seal of confession “will probably appear too imperious to admit of dispute.” Apparently not.

There are two strands to his argument. In the first, he argues that, if priests were obliged to reveal confessional conversations about criminal matters, criminal prosecutors would, as a matter of course, call a Catholic accused’s confessor to testify. In any case, the possibility would inhibit the penitent in confession. To quote Bentham:

A regulation to any such effect would therefore be a virtual proscription of the exercise of the Catholic religion.

The atheist Bentham understood, as today’s legislators and royal commissioners (and not a few priests) pretend not to, that the Sacrament of Penance is essential to the practice of Catholicism.

The other head of argument is that the regulation is “preponderantly vexatious”; that is, in the main it would be unreasonably burdensome to those affected, without any corresponding benefits. Penitents could only restore themselves to good grace with God at the risk of the exposure of their crime; while to remain without absolution is at the risk of their immortal soul (although Bentham does not use such an expression.) To priests, “it would be an order to violate what…is…amongst the most sacred of religious duties.”

The advantage gained by the coercion—gained in the shape of assistance to justice, would be casual, and even rare: the mischief produced by it, constant and all-extensive. …the alarm itself…would be a most extensive as well as afflictive grievance.

He then addresses the losses to the body politic incurred by this policy. The Sacrament of Penance exists to restore the sinner to a life of Grace. It is called Penance, because that is required, along with a firm intention of amendment. The words of Jesus were, “Go, and sin no more,” and that is the basis of the Sacrament. The fact that anti-Catholic and anti-Christian bigots, who refuse to comprehend this, infest the media and seemingly the Parliament and the courts, does not alter the reality.

Confession of crime, Bentham says, is of service to justice precisely because of the assurance that it will stay in the confessional. The service is in repentance, reformation, amendment and possible reparation: “such are the well known consequences of the institution.”

Further, even if the penitent shows no sign of permanent amendment, it may well remain to the priest, provided it can be done without risk of drawing attention to the penitent, to make arrangements that interfere with possible future crimes. This opportunity for the prevention of crime would not exist without the seal.

All of these arguments apply to the legislation in Queensland, but this legislation is a refinement of perniciousness in a number of ways. There were cases scattered through nineteenth century in which a priest was called to break the seal in testimony. When he refused, he was committed for contempt of court. All of the ill-effects sketched above were in play, but the priest was not required to initiate a prosecution by betraying the penitent to the police.

The Queensland legislation affects priests in two ways. A priest commits a crime if he “knows there is a significant risk” that an adult alleged offender will commit a child sexual offence, and the priest is associated with an institution. Maximum penalty:five years. One can be “associated” with an institution by “providing a service” to a child in the institution. For example, a priest visiting a school to provide religious instruction, and perhaps hearing some confessions. If a teacher at a school confesses to a visiting priest his sexual attraction to pubescent boys, also confessing that he has not acted on the attraction, does that constitute a “significant risk”? How does the priest determine that? If he does not know the penitent well, can he be sure he isn’t being set up? No actual child sexual offence needs to have been committed to make an offender of the priest. This is a nightmare, made exponentially worse by the memory of the pernicious prosecution of Cardinal Pell. What is being criminalised here is failure to report the possibility that a crime might be committed. Chew that over. This is the Department of PreCrime, Queensland style.

It is also now a crime if an adult, say a priest, “gains information that causes the adult to believe on reasonable grounds, or ought reasonably to cause the adult to believe, that a child sexual offence is being or has been committed…” (My emphasis.) Note that is not necessary to show that the priest actually believed such a thing. Still, this one is only worth three years.

There are “reasonable” excuses. One of these is that the alleged victim has since turned sixteen, and the priest “reasonably believes” that the victim does not want the information disclosed. This opens a window onto an important aspect of the Sacrament, and an absurdity in the legislation. Ephebophilia, the sexual attraction to adolescents – in these cases generally boys – is a major driver of child sexual abuse. If a sixteen year old tells a priest in confession about abuse, but does not want that revealed (he is, after all, in the confessional) then the priest has an “excuse” not to reveal it. If the same thing happens with a thirteen, fourteen or fifteen year old, it is a crime not to violate the seal of confession. Are the latter not able to assess whether they want the story told, while a sixteen year old can?

For some victims of abuse, the security and privacy of the confessional is their only refuge. They are unable or unwilling to reveal the abuse, but in the confessional they can safely seek the counselling they desperately need. The very fact that this “excuse” has been written into the legislation shows that this is understood, but as far as our legislators are concerned, teenaged victims have no choice in the matter until they have turned sixteen. Yet these same legislators wring their hands and broadcast how much they care about the children. They care not so much about the children, as about the politics.

Bentham wasn’t finished, in the Rationale, on the topic of the shielding of confidential discussions. Ought a lawyer, he asks, be compelled to give evidence concerning conversations with his client – party, plaintiff, or defendant? “Answer: Yes.

The considerations which forbid the compelling or admitting the Catholic confessor to disclose misdeeds revealed to him in confession … neither these nor any other considerations of a like tendency, will be found to have any application to the lawyer’s case.

None of the salutary effects of confession, says Bentham, – repentance, remorse, amendment, reparation, the prevention of further crime – apply in the case of the lawyer for a guilty criminal or dishonest plaintiff or respondent. The profession, in his observation, was mired in hypocrisy.

It is a maxim among the brotherhood—a maxim not only acted upon but avowed…—that right and wrong are creatures of their creation…

It is in virtue…of this same maxim, that, for the benefit of Self and Co. they have licensed Co. to render to malefactors that sort of support and encouragement for the rendering of which, those to whom they have not communicated the licence are, under the name of accessaries after the fact, dealt with by them as felons.

As in Bentham’s day, the “confessions” of clients to their lawyers are still, of course, protected by professional privilege. To the best of my knowledge, no-one has suggested that the seal of lawyer-client confession be attacked in the same way and for the same reasons. The same police force that persecuted Cardinal Pell is now the subject of another royal commission because of systematic violation of that privilege in cases which were not focussed on the protection of children.

How heart-warming it is to see the number of lawyers who draft our legislation and warm the leather in our Parliaments.

Who won?

On the morning of April 7, national television relayed the announcement of my verdict from the High Court. I watched in my cell on Channel 7 as a surprised young reporter informed Australia of my acquittal and became still more perplexed by the unanimity of the seven justices.

That is George Cardinal Pell writing on My Time In Prison for First Things magazine. The surprise and perplexity reflect the response of the majority of those hearing this news. Those of us who were delighted by the news had long experienced perplexity, though not surprise, at the years of relentless persecution of George Pell. We were in a tiny minority. We still are.

Was Cardinal Pell’s eventual acquittal, then, a victory for the Australian justice system? Was it a re-affirmation and consolidation of the principle of the rule of law? Has justice been served?

In one sense it was. An innocent man was, finally, released from his ordeal. He was, formally speaking, vindicated, and the innocence purportedly presumed at law before his trials was brought out of the woodshed and burnished by the unanimous High Court finding. Some overseas observers, sympathetic to the Cardinal, expressed the opinion that the High Court was the last chance of redeeming Australian jurisprudence in the eyes of the world. In such circles, the sigh of relief could almost be heard.

For Cardinal Pell, the personal victory is great. His unwavering trust in his Lord has been vindicated in this life, and his courage and faith will serve as an inspiration to his fellow believers. In this ultimate sense, the Cardinal’s is the victory. But the ultimate victory would have been his had he not taken his appeal to the High Court, or had the High Court refused him. In the City of Man, justice is elusive, and often violated, but in the City of God, Truth is on the throne. Was this a victory, though, for the body politic?

The prospect of punishment acts as both retribution for the offender and deterrent for observers. Crime and Punishment are connected as cause to consequence. What is deterred in others by the consequence is the behaviour which led to it. If the punishment is determined and meted out in secret, though the crime is known, it appears as though the behaviour is not regarded as a crime. What if the punishment is known, but the crime is a secret? Such a situation is literally Kafkaesque, with the onlookers to whom the punishment has been revealed sharing in the nightmarish disorientation of Josef K. in The Trial.

Cardinal Pell is our Josef K.; a demonstration to the citizens that the power of the State is arbitrary and virtually untrammelled. His punishment is manifest: 404 days in solitary confinement; his career in the Church abruptly terminated; his good name traduced; detested by many; derided by more; living in straitened financial circumstances; his acquittal made possible only by the generosity of admirers; and under threat of new trials. All of this manufactured by the State and by unaccountable propagandists, all of whom escape indictment. There was no crime, but there is comprehensive punishment. Since the man to whom this was done is our most senior Australian Catholic, what message is being sent to the rest of us?

After I lost my appeal to the Victorian Supreme Court, I considered not appealing to the Australian High Court, reasoning that if the judges were simply going to close ranks, I need not cooperate in an expensive charade. The boss of the prison in Melbourne, a bigger man than I and a straight shooter, urged me to persevere.

Cardinal Pell’s vindication hinged on the encouragement of his prison warden. His legal expenses began to accumulate from the time he was first interviewed in Rome by the man who is now the Chief Commissioner of Victoria Police, through committal hearings on dozens of charges, two trials, the appeal to the Victorian Supreme Court of Appeal (VCSA), and the final appeal to the High Court. He remains in debt.

Let us suppose that a different man had been the chief of the Assessment Prison, and that the Cardinal had not appealed to the High Court. George Pell would still be in prison, and would not be eligible for parole for about two years. On his release, he would be a pariah to most of his fellow Australians.  Like that perplexed Channel 7 reporter, the bleating herd who front news cameras and who write newspaper reports would continue in invincible ignorance to feed boiler-plate lies to the public, who in turn would rest comfortably knowing that the monster Pell was paying for one of his many crimes.

Ex-Cardinal Pell would probably have been laicised by the Vatican, and would never again be able to celebrate Mass. Those who contemned him would also likely contemn the Catholic Church, and everyone involved in the conspiracy to bring him low would be glorying in their iniquity, and planning mopping up operations on any remaining pockets of resistance.

Since the man to whom this was done is our most senior Australian Catholic, what does that say to the rest of us?

With all of these evil outcomes averted, there is much to be thankful for.  However, in a State approximating to being just, every attempt would be made to rehabilitate Cardinal Pell’s good name. Those who engineered this vile persecution would themselves suffer the negative consequences of having their conspiracies unmasked. Crime and Punishment. Likewise the propagandists would themselves experience the public opprobrium they whipped up against Pell. But so far from being just is the Victorian regime that, emboldened by a series of increasingly brazen affronts to justice, it has now suspended virtually every tradition of Westminster government, and in this it is merely the bell-wether for the other States, and for the Federation itself. All of this is not only made possible, but is applauded, by a servile people – us.

Those who are unshakeably convinced that Cardinal Pell is a serial offender and protector of other offenders will find plenty of high-profile support, starting with the Premier of Victoria, and continuing down through the shameless VicPol hierarchy, who immediately after his acquittal suggested that Cardinal Pell was being investigated over “new” allegations, and including the egregious gang of Pell-haters at the ABC, who tried to set up the basis for new charges without pausing for a moment to consider the shellacking the organisation’s reputation had taken, indirectly, from the High Court.

For those at the top of this sorry pile, George Pell’s innocence is, and was, irrelevant. For those further down the food chain, his guilt is a sine qua non, like the peril of climate change or the curse of white privilege. It’s common knowledge, and his acquittal demonstrates to them that the High Court is a stumbling block to justice. For this crowd of Pell-haters the Cardinal “got off on a technicality.”

This distrust of, or outright contempt for, the High Court has its obverse in the perception of the VSCA amongst those who, anticipating the High Court, were dismayed by the lower Court’s finding. What respect for the Victorian courts and police can survive in the Pell supporters, whose every criticism of the persecution and prosecution was vindicated by the High Court?

Between the two is a large group who have made the terrible mistake of trusting the news media to inform them honestly. Because of the widespread reliance on TV for news and discussion, even those who, through of some personal knowledge of a current controversy, realise that the media are peddling agenda-driven lies in that particular area, tend still to accept the story told in a range of other areas of which they are personally ignorant. They probably take most news stories with a grain of salt, but are sceptical that the Australian news and opinion media as a whole could, Pravda-like, embrace an agenda not grounded in truth or reality, but which effectively builds a Potemkin facade over an irrational and dystopian new reality. “It can’t be that bad,” “The truth must be in there somewhere,” “I don’t subscribe to conspiracy theories,” and so forth. Who can blame them?

It is this group – call them the bemused – who are destabilised in their assumptions about who can be trusted for information. Either the High Court or the whole apparatus of prosecution – involving two chief commissioners, the committal process, the County Court, and the VCSA – is seriously broken. And if it is the latter, then every ill report of Pell over the years that it took to build up animosity against him was inaccurate or deliberately false. Most of the media were so committed to the destruction of Pell, and so oblivious to the flaws in their own stories, that errors in good faith can be ruled out. The conclusions from this moral and professional collapse do not bear thinking on by the bemused; not, at least, without shaking their worldview.

For most of those who never accepted the demonisation of Cardinal Pell, disillusionment with the myth-making of secular society set in long ago. Many rarely pick up a newspaper or turn on television news. Once these sources are perceived as propagandists and ideologues, only some overriding duty or an addiction to impotent anger can encourage their consumption. When this gestalt switch has occurred, the nagging question arises as to whether this has always been the case. Can we pinpoint a time when the situation changed for the worse? Reporting seems to have been a more honourable profession at times within living memory, but the suspicion lingers.

The newly disillusioned, trying to make sense of Pell’s disquieting acquittal, may dismiss that event as an aberration, and so shore up their ongoing acceptance of the daily drama of “the news.” They may, however, be unable to recover their previous confidence in what they are being told, and start down a path of the more comprehensive alienation that Cardinal Pell’s supporters have experienced for some time.

Is is better from the viewpoint of social re-engineers that all of these people rest easy in believing they have been told the truth, and that George Pell is guilty, and guilty of more and worse crimes that couldn’t be pinned on him?

There was certainly an effort in some legal academic circles to encourage the High Court to discreetly look the other way when Pell’s case came before them. Andrew Dyer, Colin Phegan Senior Lecturer at the Sydney Law School and Deputy Director of the Sydney Institute of Criminology, and David Hamer, Professor of Evidence Law at the Sydney Law School, published a paper in the Sydney Law Review early in 2020, in which they argued that “if the HCA grants Pell special leave to appeal, it should reject his argument that the VSCA majority reversed the onus of proof…” The finding delivered, two academics from the Queensland University of Technology Law School, Professor Ben Matthews and Senior Lecturer Mark Nicholas Bernard Thomas published in The Conversation (Academic rigour, journalistic flair) the article How George Pell won in the High Court on a legal technicality. To state the obvious, these men train lawyers.

Is it, on the other hand, preferable that the bemused lose confidence in the executive and judicial structures of society, and find themselves adrift, plagued by doubts which, in our conditions of wide-spread myth-making, are likely to broaden and become more corrosive? For those with revolutionary aspirations, this outcome is preferable, and such people are obliged to the independence of the High Court for putting the cherry of disillusionment on top of the work of VicPol and the VCSA.

Disillusionment, real or manufactured, is the traditional weapon of Marxist agitation. In return for the “illusions” it exposed, Marxism promised knowledge of the true engine of history: the struggle between classes which would wind its inevitable way through capital-H History until the victory of the proletariat and the unleashing of vast productive forces that had been hobbled by capitalism. This analysis proved illusory, and, stripped of the last illusion, Marxists In Name Only focussed on one reality of Marxist experience – undermining the State and the culture through manipulating the illusions of others.

George Pell’s was a voice of both faith and reason on a range of the most contentious social and politico-economic issues of the times. Often he stood against the prevailing view, but concerning the sexual abuse of children by clergy, he was a new broom, cleaning the clerical stable, and being the world leader in easing the path for victims to recognition and compensation. Paradoxically, it was along this most highly emotive vector that the main attack was directed. Every tout to whose favourite scheme, scam or socially destructive proposal Pell had been a stumbling block, then piled on, amplifying the volume to the detriment of such comity and reason as still existed in the public square.

Now he is free, and he is still a Cardinal and Bishop; but the lessons his expected destruction was designed to teach have been well-learned anyway. The Australian Bishops, and not only the Catholics, now cower in resignation before the power of media and State or play the fool to curry favour, as has been most recently seen in their enthusiastic support for the State’s trampling of religious liberty on the excuse of the Covid-19 pandemic. Once an important voice for those liberties, they now collaborate in their destruction, if only by their silence.

 There’s a bonus for radicals. Whilst a sizeable number of Pell-hating fanatics hold unshaken their faith in the forces that brought the Cardinal low, a much greater number have had their confidence in the integrity of news reporting, police forces, parliamentary executives and state judiciaries shaken or shattered, without any counter-balancing increase in confidence in Cardinal Pell or the Church he so courageously serves.

The Cardinal’s persecution had global significance. It was of a piece with the accelerating series of attacks on Christianity and on Western culture as a whole. To attack the former is to attack the latter, although it is hardly the only vector. Cultural violence so widespread inevitably morphs into the physical violence that we are now seeing. There are no doubt many who perceive their advantage in the current disruption, and seek to maximise it. But Western societies are inherently chaotic (in the mathematical sense) and the reins of control that do exist have all been loosened, in spite of the best efforts of social and legacy media to re-tighten them. The outcomes of our chaos (in the social sense) are beyond human intelligence to predict. Everyone is a reactionary now.

Two millennia ago St Paul wrote to a world in transition, identifying the nature of the conflict.

For we do not wrestle against flesh and blood, but against the rulers, against the authorities, against the cosmic powers over this present darkness, against the spiritual forces of evil in the heavenly places.

The City of Man, the work of human hands, is crashing down around us. To what city shall we look now?

Endemic Pandemic Panic

[A version with slight differences was published 27th April, 2020 on Quadrant Online QED.]

The previous “pandemic”, commonly know as Swine Flu, was caused by a type of Influenza virus known as H1N1. Spanish Flu was also caused by an H1N1 variant. The disease was first detected in Mexico in 2009, and initial reports gave what was eventually seen to be an exaggerated view of the morbidity and mortality of the disease, but, as a paper on the response of Australian emergency departments put it, [a]lthough the severity was subsequently shown to be of less concern, the initial response was, and necessarily had to be, based on the information available at the time. That assumption is invalid, for reasons to be outlined. Nonetheless, the response to that pandemic was somnolent compared to our betters’ instituting a totalitarian state (with a sunset clause) just 10 years later.

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Black Lies Matter

First written 11th June 2020. Submitted unsuccessfully to Quadrant and Catallaxy Files.

Black Lives Matter has its own website. That’s no surprise. The About page summarises BLM (Emphasis mine.)

#BlackLivesMatter was founded in 2013 in response to the acquittal of Trayvon Martin’s murderer. Black Lives Matter Foundation, Inc is a global organization in the US, UK, and Canada, whose mission is to eradicate white supremacy and build local power to intervene in violence inflicted on Black communities by the state and vigilantes. By combating and countering acts of violence, creating space for Black imagination and innovation, and centering Black joy, we are winning immediate improvements in our lives.

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The Burden of Proof and the Pell Case

[Originally published by Quadrant Online on 30th December 2019. Published in Quadrant Magazine March 2020.]

The conviction of the guilty is just; it is the unremarkable business of a just criminal jurisprudence; but the conviction of the innocent strikes at the heart of Justice. If it happens through error or negligence, it is bad enough; when it happens by design, it is an abomination that corrodes trust in the law itself. 

Maimonides in the 12th century, in this commentary on Exodus 23:7 (Keep far from a false charge, and do not kill the innocent and righteous, for I will not acquit the wicked) concluded, “it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death once in a way.”

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The Samizdat University

The April 2015 edition of First Things included an article by Sir Roger Scruton, titled The End of the University. As Scruton points out, the university as an industrial-scale certification factory is in ruddy good health, enrolling an increasing proportion of the population. Nonetheless, his article is not about some distopian future in which these enterprises collapse, but about the distopian present, in which some essential capacity of the university has been vitiated.

It addresses also the other meaning of the phrase, “the end of the university”; exploring the process by which Scruton himself began to question his purposes in teaching: to what end?

…I asked myself what exactly I was trying to teach, and why.

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Israel Folau and the Rainbow Dhimmis

[A version with slight differences was published 28th April, 2019 on Quadrant Online QED.]

Notre Dame de Paris, on the Île de Cité, is a centrepiece of Europe’s Christian cultural heritage; which is to say, a centrepiece of our heritage. The shocked and sombre reaction of most Parisians to the burning Cathedral was shared by anyone with some sense of the debt we owe to the builders, not only those who laboured over centuries on the cathedral itself, but the millennial builders of our patrimony.

The Sorbonne Quarter lies over the river from the Cathedral, and the first universities emerged from the Church schools as expressions of Christianity’s commitment to learning.  The Sorbonne was the second of the great universities to be founded, around 1150, after Bologna. St Thomas Aquinas studied there under St Albertus Magus as the Cathedral was being constructed.

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The Willing Suspension of Disbelief

[Published in Quadrant April 2019, and on Quadrant Online as Memoirs of an Abused Altar Boy, which included links to various documents.]

…so as to transfer from our inward nature a human interest and a semblance of truth sufficient to procure for these shadows of imagination that willing suspension of disbelief for the moment, which constitutes poetic faith.                                                 Samuel Taylor Coleridge

In May of 2015, the royal commission came to town, and opened public hearings in the Ballarat Magistrates’ Court on Tuesday the 19th, with Justice McClennan presiding. Counsel Assisting, Gail Furness SC, outlined the evidence that was expected to be given, and a number of victims gave evidence about the abuse they suffered. The next day’s proceedings opened with the evidence of Gordon Hill about his abuse at the hands of priests and nuns while he lived at St Joseph’s Home in Sebastopol near Ballarat. He was followed by number of other witnesses, some of whom alleged that they had informed the then Father George Pell about abuse centred on the Ballarat East parish, where Pell was, for some time, an assistant priest. David Ridsdale also repeated his allegation that Pell attempted to bribe him to keep quiet about his abuse at the hands of his uncle, the then Fr Gerald Ridsdale.

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Video Secrets

[An edited version of this article was published in Quadrant Online as Bile! You’re on Qatar’s Candid Camera.]

Two weeks ago, Comedy Central’s Jim Jefferies responded to the Christchurch massacre with a hit piece on Avi Yemini, who is one of the emerging breed of conservative citizen reporters producing videos on social media. Jefferies had interviewed Yemini a few months prior to the massacre, but rushed his heavily edited footage to air as an exposé of Australian white supremacism. It was built around a portrayal of Yemini as an anti-Muslim activist and an anti-black racist.

Unfortunately for Jefferies, Yemini had secretly recorded their conversation. When Jefferies had aired his ambush, Yemini followed suit with a short series combining segments from Jefferies’ piece with unedited sequences from his own. The results are devastating for Jim Jefferies and Comedy Central, as you can see here.

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Men, Improved

[First published in Quadrant Online as Gender Quotas, Merit and Faux Equality.]

Since the outbreak of #metoo hashtagging in the Federal parliamentary Liberal Party, Peta Credlin (among others) has been promoting targets for Liberal women in Parliament.  Simultaneously, she decries quotas as promoted by, for example, the Labor Party.  Women, she says, don’t want a handicapping system for men; women want to win entirely on their own merits; women don’t want to walk into the party room aware that there were better candidates whose shoes they are not quite filling; etc, etc, etc.  Women who are like Peta only want to get into Parliament by their own honest and honourable efforts.

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