LEGAL PROFESSION ‘IS NOT IMMUNE TO SEXUAL MISCONDUCT CHARGES’
WHEN exposing details of the Hollywood producer, Harvey Weinstein’s sexual harassment of women in the film industry, the actress Alyssa Milano wrote: “If all the women who have been sexually harassed or assaulted wrote ‘Me too’ as a status, we might give people a sense of the magnitude of the problem.”
Within hours, there were 12 million reactions to the message and an international social movement was founded. The personal stories of victims (ranging from criminal acts of sexual assaults to lascivious pestering) span professions, ages and countries, and continue to be posted.
The movement has sprouted a number of initiatives, including “Time’s Up” which aims to help fight sexual violence and harassment in the workplace through lobbying and providing legal advice funding for victims.
The movement has gained international momentum and continues to grow. It has named and shamed major players in professions that would previously have thought themselves untouchable. Beyond Hollywood and Bollywood, sports coaches, politicians, the music industry, the military and the medical profession have all been affected.
The use of the #MeToo hashtag on social media spread quickly in India, where sexual harassment is commonly (and misleadingly) referred to as “eve-teasing”. In Pakistan, there was a wave of postings on social media in the #MeToo style after the death of seven-year-old Zainab Ansari in January 2018, who was raped and killed in Kasur, Punjab. Activists in Pakistan have highlighted the fact that victims of assault are commonly charged with adultery and are sometimes imprisoned.
The World Health Organization states sexual violence affects one-third of all women worldwide. A 2017 poll by ABC News and The Washington Post also found that 54 per cent of American women report receiving “unwanted and inappropriate” sexual advances, with 95 per cent saying that such behaviour usually goes unpunished.
In the UK, the TUC and the Everyday Sexism Project found that 52 per cent of women had experienced unwanted behaviour at work including groping, sexual advances and inappropriate jokes. Among women and girls aged 16-24, the proportion reporting sexual harassment rose to 63 per cent.
The legal profession is not immune to such misconduct and is likely to be the next in line for attention from the MeToo Movement. According to a recent survey conducted by Legal Week, two-thirds of women lawyers have experienced sexual harassment at work. This has not come as a surprise to those within the profession.
The key factors in any industry which allow sexual misconduct to thrive are a concentration of power in a very small number of men; a lack of power or voice to individuals in the industry, particularly new entrants; an institutionally negative attitude towards equality and complaints of sexual misconduct; and a disciplinary structure that supports the perpetrator at the expense of the complainant. In the recent past, both sides of the legal profession, solicitors and barristers, ticked each of these boxes.
The profession used to be rife with incidents of senior partners in large firms pestering trainee lawyers; of Queen’s Counsels using their status to sexually pester pupil barristers; of barristers’ clerks using their power to distribute work as a means of putting pressure on young barristers to drop sexual misconduct allegations; of drunk judges feeling they are beyond reproach when challenged about their misconduct. Such misbehaviour rarely saw the light of publicity – the victims would not make a formal complaint, and even if they did, it would be hushed up quickly or the profession attacked the victim, ruining her reputation.
The legal profession has recently recognised that the writing is on the wall for such behaviour. The Law Society and the Bar Council have taken the lead on a number of initiatives to ensure that every law firm and every barrister’s chambers now has a more robust system to provide protection for vulnerable complainants, to ensure a rigorous investigation and that the perpetrators are dealt with appropriately. There is now a positive duty on barristers who witness sexual misconduct to report it, at the risk of committing a disciplinary offence themselves if they turn a blind eye to it.
The after-work drinking culture which was the source of a majority of the complaints, has been curbed compared to a generation ago. The large City firms and top barristers chambers know that any adverse publicity about sexual misconduct by a partner or senior barrister will result in the loss of revenue, and have consequently tightened their systems. Those governing the legal profession were well aware that the dam would burst any moment unless action was taken some years ago.
This is not to say that the profession will withstand the spotlight of the MeToo Movement. There are bound to be some “scalps” in the near future – I predict it will be a middle-aged male in a Magic Circle firm, or a QC specialising in commercial law, or a judge about to retire. And unlike the old days, his profession will rightly hang him out to dry.
n Sailesh Mehta is a barrister who specialises in human rights law. He is a former chair of the Society of Asian Lawyers and currently chairs his chambers’ equality and diversity committee .