The culture of silence surrounding sexual harassment in the workplace must be broken with a collective push. What will it involve?
Rachel Doyle says we need a safe and fair means for victims of the same harasser to identify each other, and we need a way for them to complain together which is more sophisticated and nuanced than the blunt tool of social media campaigns.
On the morning of June 22, 2020, a friend texted me two words: pretty explosive. Below his message was a link to an online newspaper article.
The Chief Justice of the High Court of Australia, Susan Kiefel, had just issued a statement. In a few terse paragraphs, an unprecedented era of soul-searching by the legal profession was ushered in, beginning with: “The High Court was advised last year of allegations of sexual harassment against a former Justice and we immediately acted to commission an independent investigation.”
The investigation had taken some months to complete, and the statement went on to confirm that its subject was the Honourable Dyson Heydon AC QC. The inquiry had found that “six former Court staff members who were Judges’ Associates were harassed by the former Justice”.
The Chief Justice’s statement continued:
The findings are of extreme concern to me, my fellow Justices, our Chief Executive and the staff of the Court. We’re ashamed that this could have happened at the High Court of Australia.
We have made a sincere apology to the six women whose complaints were borne out. We know it would have been difficult to come forward. Their accounts of their experiences at the time have been believed. I have appreciated the opportunity to talk with a number of the women about their experiences and to apologise to them in person.
I am familiar with this economical judicial style of writing. I’ve been a barrister for 25 years. I was an associate to a High Court judge from 1994 to 1995. Not one word is wasted; every phrase is infused with meaning.
I was rocked by the Chief Justice’s use of the phrase “We’re ashamed”. The pronoun ‘we’, and the ownership that conveys. Then there was the reference to shame, a feeling often provoked in victims of sexual harassment. Yet here was the nation’s most senior law officer saying that she felt shame because of what had happened at her court.
Then there was this: “We have made a sincere apology” – which, it is revealed later in the same passage, was (at least with respect to some of the women) an apology delivered to the complainants by the Chief Justice in person.
And then the sleeper at the end of that sentence, which described the former associates as the six women “whose complaints were borne out”. Two sentences later, the statement says: “Their accounts of their experiences at the time have been believed.”
There were no guarded references to ‘allegations’ or to ‘versions of events’ reported to management. No incantation of the refrain that it is not appropriate or possible to offer any commentary on ‘the ongoing situation’, because the matter is or might be before the courts.
Both in substance and in form, the Chief Justice’s statement was an example of how to respond with candour and how to be accountable.
At first, it seemed shocking that the investigation and its findings concerned six women. But again on reflection, perhaps this was perfectly explicable. No woman had felt able to come forward on her own, as a lone voice. But the six of them had found the courage to act as a group. This prompted many to describe the Heydon case as the law’s #MeToo moment.
Yet there is a crucial difference. The six associates did not go public with their allegations (which Dyson Heydon immediately denied, and continues to deny). They did not use social media to drop the story. Rather, they made their complaints to the High Court through a lawyer. They then maintained a careful silence throughout the course of the investigation. Following the investigation, it was the Chief Justice who broke the story.
By June 24, I had had an opinion piece published in the Herald and The Age. At the end of the article, I directly addressed the perpetrators: “To the members of the legal profession who persist in perpetrating sexual harassment. Stop it. You ought to be ashamed.”
Almost immediately, my inbox began to fill with messages from barristers, solicitors, judges and legal academics. The emails came from men and women of all ages and levels of seniority within the profession. The prevailing theme was that the focus needs to be on the perpetrators. Many women wrote that they feel burdened and exhausted by the obligation to monitor and report sexual harassment. They feel crushed by the culture of silence. They just want it to stop.
Now, let’s get this bit out of the way. I know you want to know whether it has ever happened to me. I was an associate to a High Court judge in the 1990s. I have been in the law for over 25 years.
It has happened to me. A couple of times. I did not make a formal complaint either time. Let me tell you why.
The first time, I was in my early 20s. The incident occurred after the work Christmas party. It involved a request to sit on the lap of a male lawyer very senior to me. It was followed by an embarrassing declaration of a desire to kiss me, which I repelled.
An apology was delivered in person, the morning after the event. He came to the door of my office and said he had thought about his behaviour the previous night, realised he had done the wrong thing, and wanted to say he was embarrassed and sorry.
On the second occasion, I was about 30, and a junior barrister. The incident occurred early one evening, in a lift in the barristers’ chambers. I was leaving a function. He stood very close to me, backing me against the wall, and got so near that I could smell the booze. He said: “Look at you! I like your skin, I’d love to touch it, so soft.”
The lift doors opened.I stayed in the lift and yelled at his back: “I will call the Women Barristers’ Association about this tomorrow. You are a dead man!” He picked up his pace slightly and ambled out of my sight.
The next day I was contacted by a colleague, also a very senior male barrister. He said the man from the lift the previous evening had rung him. The intermediary had been asked to call me to see if I would be willing to meet so that the man could apologise to me personally, and failing that, he wanted to offer his apology through the intermediary.
What is striking about my experience is that on both occasions the perpetrator sought me out and within 36 hours had offered an apology which did not attempt to diminish the conduct, nor question my role in the events or seek to attribute blame elsewhere. Crucially, I experienced no ramifications in relation to my work or professional life.
I am lucky. I am also no fool. I know why both these events ended so well for me. I am confident, with an emphatic way of expressing myself. I also come from a legal family, and both men knew that.
Each of the events I have just described could have gone another way. When faced with a formal process and public opprobrium, the men might have denied it. I might have been asked what was I doing at the party, how much had I drunk, where had I been, why did I step into the lift when a man was already inside it.Such an experience may have caused me to doubt myself, to lose faith in the process, to lose patience, to lose time, to lose my mental health.