Tales of sexual harassment or assault in the workplace are not new. However, during 2017 allegations about inappropriate and harmful sexual behaviours in the entertainment industry became increasingly visible through both social media and mainstream outlets.
In the US, the #metoo movement gained momentum, and the previously secret 'shitty men in media' list was released into the wild. This culminated in Oprah Winfrey's powerful speech at the Golden Globes, declaring that a 'new day is on the horizon' for women.
The Australian media and entertainment industry has not been immune. Tracey Spicer has led investigation into allegations of media workplace harassment, and collaborations between ABC and Fairfax Media have revealed multiple allegations against two leading entertainers, Don Burke and Craig McLachlan, both of whom have strenuously defended themselves in the media.
The question of power in sexual harassment, intimidation, and assault, is not limited to the entertainment industry but exists in every sphere of society — media and entertainment is simply the case study du jour.
Response to the allegations has been mixed, if not predictable. Many (both women and men) have been emboldened by the publicity to come forward and to tell their own stories. Women in particular have expressed relief at the disclosure of behaviours so many women suffer routinely in almost any context — an experience of the entitlement of those in powerful positions to demand sexual attention for their own gratification, and without consent.
By contrast, many claim that it is inappropriate for media to report these stories when they should properly be brought to the police to be dealt with by the law. The tenor of this argument is that these stories overturn the presumption of innocence as the central principle of justice.
Such 'justice arguments' suggest that without due process, false claims might be made. They claim that the men charged with the allegations stand to lose everything, without even the chance of defending themselves. Indeed, McLachlan has already stood down from Adelaide performances of the Rocky Horror Show.
"The pervasiveness of the problem shifts the issue from one affecting the individual, to something in the public interest."
As a lawyer, I understand such arguments. The concept of justice at law depends upon systems that are designed to weigh evidence, affording the parties the opportunity to tell their stories according to well-established rules. But what if these systems are inadequate to expose the abuses of power evident in the recent disclosures?
Many of the women making the allegations have indeed reported the offending behaviour to the police, if a criminal matter, or to those in positions of authority in their workplace. Frequently however, women have been disbelieved, ignored, or discouraged from taking further action. In some cases, they have been sacked. This indicates that we cannot assume a system of justice applies in relation to complaints about sexual intimidation, harassment, or assault in the workplace.
Further, while the alleged offenders suffer various consequences from the allegations aired, those making these allegations likewise have a lot at stake, including their personal safety. Many have been exposed to violent threats and intimidation since coming forward. These high stakes are part of the structures that enforce silence about sexual harassment.
On a more technical level, the presumption of innocence is a concept of criminal law, supported by the standard of proof beyond reasonable doubt. Not all the allegations aired will involve criminal offences. Most involve inappropriate workplace behaviour resulting in discomfort, distress, and fear, in some cases with long-term mental health consequences. These arguably arise from a toxic workplace, to which the offending behaviour contributes, and which is not reined in by management.
In the context of the current crop of allegations, rather than attempting to replace a criminal trial, we are seeing the results of careful investigative journalism to reveal the extent of sexual harassment in Australian workplaces. Notably, it is through multiple accounts of similar behaviour that the story carries weight. Journalism is serving the public — applying professional standards of weighing claims, to reveal matters of public interest that would otherwise remain hidden.
The nature of the complaints coming to light highlights that the entertainment industry privileges the star-power of top performers, and that this power is deployed by the stars both through their initial behaviour, and subsequently to silence nameless co-workers. Disturbingly, it is the pervasiveness of the problem that shifts the issue from one affecting the individual, to something in the public interest. The increasing momentum of disclosures represents a backlash by those who suffer sexual harassment in the entertainment industry, against a self-reinforcing system.
Ideally, systems would change to afford a more dignified and systematic approach to resolving abuses of power and resulting sexual harassment. In the meantime, it is important to understand that the stories of harassment and intimidation belong to those who have experienced the harassment. Citing the 'justice argument', particularly when there is no real alternative for these stories to be heard, is an attempt to deny the story-teller the chance to express what is theirs in an attempt to change the system. Denying this simply reinforces the structures of power at the heart of the problem.
Kate Galloway is a legal academic with an interest in social justice.