Women must expose sexual harassers boldly, but also wisely

Skye Saunders

But as women set about upholding a new standard of normal in their working lives by no longer accepting sexual harassment as a part of their daily roster, their harassers are hissing: "Shut up about it, or I'll sue you for defamation!"

It's January 2018, and sexual-harassment commentary drips down the pages of our newspapers like brandy custard on the stale plum pudding in the back of the fridge. There is a shared intake of breath each time we learn of the un-sexy details of conduct allegedly enacted by some national icons.

The sound of a collective gasp is not the sort of climax that any harasser is generally accustomed to. In fact, this type of exposure is the harasser's greatest fear, because sexual harassment is about power. It's about rendering another person "less able" by dispensing humiliating treatment such that the perpetrator feels as though they are the most powerful version of themself. Suddenly, though, the soundtrack to summer 2018 features a chorus of strong Australian women declaring that the "new normal" in exposure will be tipping this power-grab back on its head.

Until now, Australians, for generations, brushed sexual harassment off like a fly on the sunscreen. It's officially been illegal, on a national level, since the introduction of the Sex Discrimination Act in 1984, but to the strains of the "she'll be right" anthem, women were taught to grin and bear it, because silence was their best bet. No one likes a dobber, and we don't want things to get nasty, do we? There's a good girl. (Pat, pat on the bottom. "Now, off ya go, darlin'.").

Now, more than ever, thanks to the bravery of advocates such as Tracey Spicer, misogynous mould is being scraped from the cultural container of Australian workplaces with unprecedented elbow grease. Putrid practices risk getting the Sunlight soap treatment as women feel the strength of their collective capacity bolstering the strength of their individual voice.

What this means is that the larrikin who traditionally enjoys a festive frolic now risks being labelled a sexual predator. Why? Because taking part in a forbidden feast of sexual banter, stroking and kissing another person's body without their consent is against the law. And to do so is predatory – even if you're a larrikin, or you're "otherwise a good bloke"; even if you're wearing a bucket hat at the cricket or a flashing Santa hat.

But as women set about upholding a new standard of normal in their working lives by no longer accepting sexual harassment as a part of their daily roster, their harassers are hissing: "Shut up about it, or I'll sue you for defamation!"

It's true that the law recognises that reputation warrants protection. In today's climate, women must be as wise as they are fearless in pursuing redress for sex discrimination. There is a line to be navigated between boldly speaking truth to the horror of sexual misconduct for the benefit of everyone, and operating within prescribed legal procedures that are designed to protect both parties at each stage.

Once, the legal avenues were pursued in quiet and private solemnity. Now, against the backdrop of unprecedented summer heatwaves, Australian women are reaching record-level anger at the way their experiences of "sexual harassment" have long been synonymous with "poppycock". The studies throw up revolting evidence to disprove this chronic implication. The Australian Bureau of Statistics' Personal Safety Survey showed one in two women have experienced sexual harassment. A different study found 93 per cent of Australian women in agriculture reported having experienced sexual harassment in the workplace.

After exhausting internal-complaint mechanisms, women's natural first legal option is to complain to the Human Rights Commission. The commission will receive the complaint and there will almost inevitably be a conciliation conference between the parties. The conciliated outcome will often culminate in a settlement, which may involve dollars, apologies and undertakings. The details of that outcome will generally remain confidential and private, though. This means that, after it's over, life will quietly move on without further fanfare. It also means a complainant will have navigated the whole experience behind the commission's closed doors, and without the details of the perpetrator and his behaviour being publicly and explicitly revealed.

At worst, if a conciliation can't be reached, a harasser (and potentially his employer, too) may be frog-marched by the complainant to the Federal Court. This phase can be exhausting – financially, professionally and personally – but equally, the prospect of justice can be sufficient fuel to sustain weary victims through the ordeal of cross-examination, scrutiny and the ultimate judgment. Until now, it was generally only at this point that the media became privy to a sexual-harassment complaint, given the public nature of court proceedings.

But because women's anger is smashing the temperature gauge, it's becoming more common to speak publicly to the alleged detail of internal investigations as a separate, parallel process to the formal legal process. Choosing to speak to experience in this way can become an outlet for reclaiming strength that was previously lost. In Female Rage, Mary Valentis and Anne Devane explained this could "become a woman's way to reassert herself and reclaim her waning powers in the world".

The truth is that if a complaint progresses to court, there is a standard of proof that must be satisfied. In a discriminatory matter, the complainant must show that "on the balance of probabilities" the law was breached. The strength of a complainant's evidence must be solid to meet that standard; this is where file notes, personal diary entries, conversations with other people, time stamps, photos and so on become important.

We must, therefore, be wise as we use our anger to speak truth with unflinching boldness. We must, as Audre Lorde said in Sister Outsider, "rain that anger with accuracy rather than deny it".

This article was first published in The Canberra Times on 17 January, 2018.

Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team