Silenced by defamation and disbelief
The #MeToo movement has blazed a trail for victims of sexual harassment and sexual assault.
It began in the United States where several high-profile court cases have followed.
In Australia, it’s been a very different story – the main legal action has come through defamation action by the alleged perpetrators against media organisations who aired the harassment claims or against the women who spoke out.
UTS Law’s Associate Professor Karen O’Connell has been part of the academic involvement in #MeToo since the beginning and took part in the inaugural Berkeley conference, 'The Globalization of the #MeToo Movement' in May 2018.
She says despite both Federal and State legislation prohibiting it, sexual harassment remains a pervasive and largely hidden problem in Australia.
Women are scared to speak up for fear of losing their jobs or reputations; and when they try to maintain privacy – or even cover up the harassment to protect themselves from the fall out - their wishes may be overridden.
Dr O’Connell points out that this is partly because of the strict defamation laws which have skewed the way the movement has played out both legally and politically.
It is clear these laws have had a chilling effect on public discussions of specific allegations of sexual harassment or assault, and have arguably acted as a further deterrent to individuals reporting harassment.
There’s a clear need for both legal and political reform. Dr O’Connell cites, as one example, the need to improve the laws of ‘vicarious liability’ where employers could be held more accountable if they cannot demonstrate they have taken all ‘reasonable steps’ to prevent harassment occurring in the workplace.
The existence of defamation laws that tip the balance of power towards public-figure harassers, legal structures that provide disincentives to bring complaints and cases, low damages pay-outs, the risks attached to speaking up, and punitive attitudes to those who do, all stop current sexual harassment laws and policies from being effective.
Dr O’Connell says Australia should no longer tolerate a system where victims are effectively ‘silenced by defamation and disbelief’.
Further reading: ‘Silenced by Defamation and Disbelief’ will be published in the forthcoming book The Global #Metoo Movement (Full Court Press, Washington, 2020).
Karen O'Connell, "Can Law Address Intersectional Sexual Harassment? The Case of Claimants with Personality Disorders."
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