
The global gold standard for bringing down a sexual predator is Ronan Farrow’s relentless pursuit of Harvey Weinstein, exhaustively chronicled in his book Catch and Kill.
But here in Australia, because of the differences between US and Australian defamation law, the big catches have not been reeled in by the media but by the (so far) rare instances of institutional leaders being prepared to call powerful perpetrators to account.
Our incoming defamation law reforms, which will create a public interest defence for investigative reporting, are the first of three major legal developments that I believe are prerequisites to a genuine change of culture around sexual harassment in the workplace. The other two are starkly illustrated in Farrow’s book.
First is the question of how harassment is legally framed within the continuum of sexual violence. Under our law at present, sexual harassment is not a crime; it is a legal wrong that gives its victims an entitlement to sue for damages.
It sits alongside other bad things that can happen to an employee in their workplace, like unfair dismissal, discrimination and bullying, with the same degree of moral culpability and societal disapprobation attached.
The Weinstein case underlines the problem with the supposedly neat division between harassment and conduct recognised as a criminal offence: essentially, indecent assault and sexual assault.
Weinstein did everything imaginable: lecherous looks, creepy comments and harassing calls/texts, constant propositioning, turning up unannounced, forcing his way into rooms and homes, dropping his pants, demanding a massage or a shower, chasing women around the room, coerced “consensual” sex, violent rape. His victims probably count in the thousands, and his patterns of behaviour are unmistakeable. The differences in outcome were solely a product of how each victim reacted (to be clear: that is not their fault).
When considering a predator’s conduct, much of the discussion about what can be done centres on which parts equalled a sexual assault, indecent assault or “just” harassment. The Dyson Heydon allegations illustrate this as well; a couple of the alleged incidents may have amounted to indecent assaults but most were “mere” workplace harassment with no criminal consequences.
The reality is the continuum: as with the different forms of abuse that define domestic violence, the legal distinctions are arbitrary and misleading. A predator is a predator is a predator. Everything Weinstein did had the same degree of moral culpability, and he should be criminally liable for all of it. His intentions never wavered and his victims always suffered.
Sexual harassment in the workplace — because of its context of necessary power imbalance — should be a criminal offence. The responsibility for identifying, prosecuting and punishing it should not just rest with its victims, as it does now. Nor should employers be expected to carry the burden of stamping it out, simply because most of them can’t and won’t. (Weinstein’s employer was The Weinstein Company — how do you reckon that played out?)
The final piece is going to get howls of objection from lawyers, but it’s right nonetheless: non-disclosure agreements (NDAs) need to be outlawed.
The most critical weapon in Weinstein’s armoury was his ability to buy silence. For decades, his entire organisation and its lawyers followed along behind his sexual predation, cleaning up by intimidating the victims and, when necessary, paying them off. They, along with every employee, were signed up to NDAs that obliged them to take their knowledge of his crimes to the grave.
This practice is ubiquitous in corporate cultures; it is routine and unquestioned practice that, when a victim calls out harassment or assault, the settlement includes an NDA that gags them forever. Unless silence is agreed, the money doesn’t flow.
I raised this point at a round table of lawyers early in the Me Too movement’s days here. I argued that it should be illegal to enter into an NDA with a victim of alleged sexual violence of any kind and that, until it is, we won’t get very far in changing the corporate culture which enables and covers up that violence. I was shouted down.
Actually, an NDA that seeks to silence the victim of a crime is, as a matter of public policy, quite possibly void and unenforceable. There is a longstanding principle that the courts will not enforce contracts that enable or protect criminal conspiracies. It’s hard to see the Weinstein NDAs, for example, in any other light. Likewise those bought for pennies by the Catholic Church from the victims of its paedophile priests.
If harassment became a crime then that policy argument would take on even more strength. Why should the law allow itself to be co-opted by perpetrators of the scourge of sexual violence that permeates every layer of our society?
Law aside, there’s the simple pragmatic issue: sexual violence is a scourge. It hasn’t diminished, in volume or harm. It’s great that it’s being more frequently called out and that its victims are increasingly seen as not shamed by their disclosure. But that is not enough, and it still places all the burden unfairly on the victims.
It’s time for our state and territory parliaments to step up and make the reforms that will really change the game. We can do this.
Correction: an earlier version of this article incorrectly identified the author of Catch and Kill. It was written by Ronan Farrow, not Dylan Farrow.
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Could not agree more about non-disclosure agreements. They are terrible, enabling all sorts of abuses and crimes to be hidden and the perpetrator to continue to the general detriment of society and the particular detriment of victims.
Does Bradley mean that the proposed crime of sexual harassment would be limited to a harasser in a position of authority over the harassed? And it would otherwise remain not a crime, the same as now?
It wasn’t Dylan Farrow who wrote the book. It was Ronan Farrow, her brother. Dylan Farrow accused her father Woody Allen of molesting her, which Allen denies and Ronan believes
A glaring oversight
“… an NDA that seeks to silence the victim of a crime is, as a matter of public policy, quite possibly void and unenforceable. There is a longstanding principle that the courts will not enforce contracts that enable or protect criminal conspiracies”
not a law-talking guy, but isn’t it simpler than this – aren’t legal documents signed under duress, null and void?
Rather like “demanding money with menaces” aka robodebt.
Amber Harrison.
What a crappy essay – a lawyer merely asking for more laws to regulate human behaviour – gets nowhere, only enriches our remarkably poor history of simple human relationships legal failures – Look at the family law system debacle – derided by real lawyers and hated by the community.- it is the real sociological cause of murders of families killing spouses and children that make headlines for newspapers and the evening news.
Using Weinstein as an example shows the laws he was breaking – break & enter, criminal assault, etc all already exist on statute books but not used.
Forced NDA can be overturned in Australia – if you look at recent High Court judgements.
The only way to change culture is glaring publicity- not court room pirouettes.
You really think a society without any laws would be an improvement? (Obviously, if you get rid of the laws you ndespise so much which are intended to regulate human behaviour there’s not much left.) That’s quite… um, radical.
The failures of the family law system are just that – failures of the system, not of family law. Most sane folk think a better system is the answer, not getting rid of law. If you were any near right about the family law system being the cause of family violence there would be no history of such violence before the family law courts existed. However…
Where is the statement society should not have any laws?? Failure of family law is not failure of the system – it is the failure of the law itself – most sane folk don’t want a better system they want a better relationship law. Even the name family law is a misnomer – same as ‘social distancing’ – it should be called ‘infective distancing’ – people would understand and take it more seriously rather than coming up with a weasel word phrase.
You were jumping up and down bleeting about what you saw as a proposal for laws. It’s obvious you object to laws. Or you have great difficulty expressing yourself.
Dear rodent -There is a big jump from commenting on objections to specific laws and then imputing that to objection to all laws . Great example of the modern trend of inability to discuss ideas and merely attack the person. By the way there is no difficulty in the expression the difficulty is in the impression.
You specifically object to laws “to regulate human behaviour”. You reinforce this with further remarks disparaging courts and lawyers, and you propose that there should be no laws, just “glaring publicity.” So it could perhaps be you accept those laws that do not regulate human behaviour, even if that is a null set, and your point is made even though in reality it amounts to nothing.
Take a look at my embargoed post tomorrow (with any luck). I think that you will find, paradoxically, that history is not on your side here.
Still not posted – you must have been really naughty and used words & concepts unacceptable to the House Rools.
Thank you Bettina/Pauline – now let Dez out of the broom cupboard.
We need a chuckling emoji.
Except glaring publicity hasn’t made the slightest dent in the number of men abusing women and then forcing them to shut up about it.As I write, it is now late 2021 and the stories keep rolling in. As you say, we have so many laws already ( like don’t steal or murder or rape), and it all continues as it has for centuries, so it appears to me we need to be looking at a much bigger picture. e.g Men. So far, all those ‘men of merit’ Scotty implies are more worthy, have failed to address any of these crimes against females and children. Throwing them a few laws has changed nothing.so the problems are obviously more than a new law can fix ( 38 year old anti sexual harassment laws spring to mind). The fundamental problem is that we live in a patriarchal system, so why any female expects anything from it, is beyond me. It hasn’t happened to date, despite even feminists declaring ‘ things are changing’. My eyes are tired from rolling around in my head.
Isn’t it Ronan Farrow who wrote Catch and Kill. And yes, make sexual harrassment a criminal offence.