Harassment in the legal profession doesn’t exclusively affect women, writes Auckland lawyer Jason Cooper. It affects us all – and all of us have a responsibility to speak up.

It’s been a few months since the allegations of sexual misconduct in the legal profession were reported. Since then, many victims of sexual harassment in the profession have spoken out. The Law Society has responded by introducing a phone line for victims, conducting a survey of the profession and tasking Dame Silvia Cartwright with a review of the settings in our regulatory framework to ensure they are robust to deal with harassment in the profession.

But is this really the transformational conversation that many of us in the legal profession have been hoping for? The fact that Dame Silvia Cartwright can say she is not aware of many women who have not been harassed or bullied in the profession and yet Russell McVeagh is the only major firm that has been outed for a culture of harassment suggests there is still a lot that is not being said.

I attended the ILANZ conference for in-house lawyers a few weeks ago and was glad to learn that there would be a panel discussing this topic. But I was challenged afterwards by practitioners who described the discussion as putting too much emphasis on victims needing to “speak up” and not enough emphasis on perpetrators being told not to sexually harass their staff.

As a profession we have naturally fallen to focusing on the rules, appropriate policies, processes and support but, just as Harvey Weinstein is facing criminal charges of rape, we seem to be forgetting that strong sanctions and calling out the worst offenders are some of the best antidotes to the powerful, egotistical people that abuse others.

I think we are also going wrong in discussing this issue as one that exclusively affects women – it affects all of us. A couple of years ago I learned that a senior female practitioner was rightly dismissed from her role in the public service for allegedly grabbing the crotch of a younger male lawyer she worked with at a work Christmas party. I understand that it was a bystander rather than the victim of the assault that ultimately complained to the employer. In the circumstances, I hope this has been a good outcome for the victim and the profession. However, it raises an important point: that female practitioners can be perpetrators of sexual harassment and men can be victims.

I once had a senior female practitioner who would regularly rub my chest. At the time I was not too concerned about it but I have often looked back and thought: a) that was a bit gross, and b) what about the young male lawyer who really doesn’t want his chest rubbed? Chest rubbing is quite an intimate act, after all. On another occasion I received a text message from a senior male practitioner I worked with that included a text depiction of a penis – the message was that I was a dick. The sort of thing that you might say in a Spinoff article about a politician, but not something that you as a junior lawyer expect to be directed at you by one of your bosses.

The key issue is that sexual harassment and bullying is about power. And the impact it has on its victims is that they typically feel shame; so for some victims, expecting them to speak up is actually too much (Madeleine Holden describes well other reasons it is difficult to speak up in the legal profession in her recent Spinoff column). That is why my colleagues are right to point out that we need get better at messaging that abusive behavior is wrong and will not be tolerated.

It might be time for the legal profession to have a Golden Globe style dinner, where those of us who wish to wear black dresses turn up and proclaim that “time is up”. Or perhaps we need Julia Gillard, famous for her misogyny speech and a former employment lawyer, to do a speaking tour on the topic of harassment. I believe that symbolic acts do actually force the reflection and cultural change we need to see.

The conservative nature of the legal profession has seen us ignore some heinous behavior. I hope Dame Silvia emphasises the importance of strong sanctions in her review of our regulatory framework. I also hope that senior practitioners and large law firms begin to take full ownership of the pressing need to root out the bad behavior they have historically tolerated or overlooked. Time is up, and we need to keep this conversation going.

Jason Cooper is an Auckland based in-house lawyer working in commercial law.

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