It is no new thing that men with power very readily assume that the ordinary rules of conduct do not apply to them. Such seems to have been the belief of the recently departed CEO of David Jones, whose career has been devoted, he said in a recent Age interview, to knowing what women want.

Sometimes the power is self-perceived and slight – like Troy Buswell’s, the hapless clown who led the Liberal Party in WA but had to stand down in tears after sniffing a staffer’s chair in his Parliament office – and the lessons not learnt. Buswell had to give up his political power after his grubby little affair with a Green became public, a couple of years later. But the one was s-xualized bullying, and the other was a consensual dalliance.

One was a gross misuse of power over his employees, and the other a breach of his wife’s trust and his political leader’s sense of what the public will no longer wear.

There are, however, similarities too – in both instances, the women involved copped one hell of a belting from the media.

Let us, then, feel for the young woman who blew the whistle on Mark McInnes to the DJ Board.

S-xual harassment has always been hard to talk about. The very first reported decision on harassment was on a young woman’s complaint that the head of her Department had made constant sexual advances of a gross kind. He denied it, she ended up fighting a court case over it, and in the end it was decided on a technicality, which brought her no joy even if it did lead to a change in the law to distinguish between sex discrimination (which required proof of detrimental treatment based on sex) and harassment by sexual conduct, (which should be accepted as detrimental per se.)

About ten years ago I lost my firm a very big client, which isn’t something you do lightly. The CEO of a very, very well-known business asked me for advice on how to respond to a complaint against him by one of his staff. She complained that he had fondled and kissed her in a hotel lift on the way to a meeting, he told me, showing every sign of outrage about it. She was mad, how could anyone believe such a thing?

She had made an immediate complaint to a third party, a female friend, and had taken sick leave. I told him the facts could be easily disproved: we could call for the security camera film. I made the call: the security cameras did not operate, were just for show and there was no film. I told my client and his face lit up.

Well actually, he said, he had done it, but it was just a moment of madness, and would I please draft a response denying such an incident had ever occurred, because he could not possibly admit such behaviour to his Board.

I said that I could not possibly draft a statement for him that directly contradicted his explicit admission to me, especially since her complaint had been made to the Equal Opportunity Commission. His face darkened. What would I recommend, he asked? Consult another solicitor, I told him. He stormed out in fury. We lost all of the company’s business.

The law has a long history of disbelieving women who make claims of sexual behaviour against men. Over the years it has changed, so that a woman who seeks maintenance for an ex nuptial child no longer has to provide corroboration of her evidence in a material particular, or satisfy the so-called ‘Briginshaw’ test – a heavier evidential burden than mere vague and ambivalent facts to tip the ‘balance of probabilities’.

In recent years tribunals hearing sexual harassment claims have adopted the Briginshaw test, which requires more exact proof because of the seriousness of the nature of the allegations for those they are made against. Anti discrimination tribunals have come to accept, however, perhaps because so many more women are now members of such panels, that sexual bullying at work is almost invariably conducted in private and ‘corroboration’ is not easy to find.

The woman who made the complaint against McInnes and David Jones has been named by the weekend papers, and is in full retreat from the media. She is said to be most distressed. Of course. What it must have already cost her to raise the matter at all. No wonder she went to lawyers.

The most common outcome of a s-xual harassment complaint is, these days, that the harasser leaves (often by consent, and with payment out of their contractual entitlements) and the woman is resented as a gold-digger. Most complainants leave their jobs, and most complainants need what they almost always never get – support, involvement in any action taken against the harasser, some say in the outcome, and the dignity of acknowledgement.

Read the rest at Eureka Street.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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