Is Dyson Heydon, a former justice on the High Court, a serial sexual harasser? Maybe so, but there is more to consider: abuse of trust, outrage management techniques and official channels.
Abuse of trust
In 1986, I joined the newly formed Sexual Harassment sub-committee at the University of Wollongong. Its aim was to oppose sexual harassment on campus. It was a sub-committee of the committee overseeing the Equal Employment Opportunity (EEO) unit. We were a small group, with members from the EEO unit, academics, research students and undergraduate students. We developed policy proposals, produced leaflets and held stalls at Orientation Week.
Some members of the committee, through their contacts, knew about harassment on campus. Hardly any students were willing to make formal complaints, which didn’t come to our group anyway. But EEO staff knew about patterns, and some other committee members did too.
For example, we heard that a particular lecturer was making unwelcome advances to undergraduate students, none of whom wanted to make a formal complaint. On the committee, we discussed options. We couldn’t approach, much less accuse, the lecturer, as that would violate the students’ confidentiality. We talked about putting graffiti in the women’s toilets. In the end, the EEO Officer decided to offer a workshop on sexual harassment to the entire faculty. In this way, we hoped, the message would get to the lecherous lecturer and his colleagues.
In 1990, something happened that broadened our concerns. Two undergraduate students accused a man of rape. It turned out that the man, a PhD student, was their tutor in one of their classes. He later went to prison for rape. The Vice-Chancellor put out a statement raising concern about individuals who abuse their “positions of privilege” in relation to students who “may feel their academic progress depends upon compliance with the wishes of a staff member or members.”
On our committee, we took this on board and started investigating the issue of consensual sexual relationships between teachers and students. There were two main problems. One was conflict of interest. If a teacher had a close personal relationship with a student, then the teacher would likely be biased when marking the student’s work. Even if not, there might be a perception of bias.
The solution for conflict of interest is often straightforward. One of my colleagues was married to a student in her class. The relationship was known, and arrangements were made so that he was not in her tutorial group and she had nothing to do with any of his assignments.
However, we learned of cases in which such conflicts of interest were not addressed. In one instance, which I learned about years later, a senior academic was a supervisor for his wife, who was doing a PhD.
The second main problem with close relationships between staff and students was abuse of trust. One of the members of our committee knew of a male colleague who started a relationship with an undergraduate student in his class every year or two. The students who were dumped along the way were often distressed. Some dropped out of university.
Teachers are in a position of trust with students, trust that they will support and nurture their students’ knowledge, understanding and skills. Students often look up to their teachers as experienced and knowledgeable, sometimes even in awe. When a teacher uses this position of authority and status to cultivate a sexual relationship, it undermines the expected professional relationship: it abuses the trust implicit in the teacher-student relationship.
Unlike sexual harassment, abuse of trust isn’t illegal. However, it can be just as damaging.
In learning about this sort of abuse of trust in university settings, one of our committee members came across a book by Peter Rutter titled Sex in the forbidden zone. The book’s subtitle listed several of the possibilities for abuse: When men in power — therapists, doctors, clergy, teachers and others — betray women’s trust. There is an implicit trust that a doctor, lawyer, teacher or boss will look after the interests of their patient, client, student or subordinate. In each case, there is a possibility of abuse of trust when the person with greater authority uses their position to promote a sexual or romantic relationship.
Heydon, as a judge, obviously was in a position of much greater authority than his associates. For him, or any other judge, to use their position to seek a sexual or romantic relationship is an abuse of trust.
In some cases, such relationships are consensual. A student might welcome, desire or even seek a sexual relationship with their teacher. Sometimes this works out well, leading to long-lasting relationships. However, there is still a serious risk of abuse of trust, as we learned from stories we heard on our committee. The solution for teachers is straightforward: if you want a close personal relationship with a student, wait until they’re no longer in your class or in any way subject to your authority or influence.
Imagine, for the sake of argument, that one of Heydon’s associates welcomed his advances and began a relationship with him. That would be a legal, consensual relationship, not harassment — and it would still be wrong. It would probably involve a conflict of interest and most likely an abuse of trust. In such cases, the onus is on the judge not to initiate such a relationship. Indeed, if an associate took the initiative, the judge should refuse.
Sexual harassment: outrage management
Years after being on the sexual harassment sub-committee, I started studying what happens when a powerful individual or group does something that others think is wrong. An example is the 1991 Dili massacre, when Indonesian troops shot and killed hundreds of peaceful protesters in East Timor’s capital city. Another example is the beating of Rodney King by Los Angeles police, also in 1991.
In these and many other instances, the perpetrator and allies use a variety of methods to reduce public outrage. They cover up the action, devalue the target, reinterpret the events by lying, blaming and reframing, use official channels to give an appearance of justice, and intimidate or reward people involved.
This dynamic applies to sexual harassment. Greg Scott and I examined the techniques used when Anita Hill alleged that Clarence Thomas, a nominee for the US Supreme Court, had harassed her years before.
Greg and I found evidence of all of the usual techniques to reduce public outrage. For example, after Hill went public, she was the subject of a massive campaign of denigration, including publication of a book, The Real Anita Hill, filled with lies and derogatory material. (The author later recanted.) Thomas reframed Hill’s allegations as part of hearings that were a racial assault on him.
Paula McDonald at the Queensland University of Technology led a study of sexual harassment using this framework, examining testimony in court cases about sexual harassment. Court transcripts revealed that the same techniques were used in case after case.
For years, Heydon paid no penalty for his actions. The primary technique to reduce public outrage was cover-up. Heydon of course didn’t publicise his actions, but neither did others who knew about them. Many of them were afraid to say anything because they were worried about repercussions, for themselves rather than Heydon: their careers might be damaged. This is the technique of unspoken threats, a type of intimidation.
It is possible to counter the techniques that reduce outrage from injustice. The counter-methods are exposing the action, validating the target, interpreting events as unfair, mobilising support and resisting intimidation and rewards. These are the methods that made the Dili massacre, the beating of Rodney King and the sexual predation of Harvey Weinstein counterproductive for the attackers.
In Heydon’s case, outrage was stoked most of all by the breakthrough stories by journalists Kate McClymont and Jacqueline Maley. The stories were enabled by women willing to tell their stories. This was the counter-method of exposing the action.
In the exposure, the women harassed by Heydon were given respect. In the coverage, they were presented as credible and as talented, conscientious individuals. This was the counter-method of validating the targets.
In the exposure, the events were portrayed as harassment and as wrong. This had particular resonance in the Heydon case because of his symbolic status as a high-level representative of justice and as a self-styled pillar of moral rectitude. This was the counter-method of interpreting events as unjust.
The coverage was enabled by women willing to come forward and tell their stories. The #MeToo movement was instrumental. It triggered a mobilisation of support for targets of harassment and assault.
Finally, several courageous women were willing to go public with their stories, despite the possible damage to their careers and reputations. This was the counter-method of resisting intimidation.
The exposure of Heydon’s harassment thus shows the relevance of all the counter-methods commonly involved in challenging a powerful perpetrator of something deemed wrong.
In my just-published book titled Official Channels, I describe my experiences learning about the shortcomings of processes and agencies such as grievance procedures, regulatory bodies, ombudsmen, anti-corruption bodies and courts. Most of the workers in watchdog bodies are doing their best, but the system has inherent shortcomings.
One of the chapters in Official Channels is about sexual harassment. In Australia, like other countries, sexual harassment was a long-standing problem that came on the public agenda due to efforts of feminists. The main response has been setting up of laws and procedures to deal with the problem, but often these only give an illusion of protection. Decades later, sexual harassment and sexual assault remain serious problems.
After Heydon’s harassment was revealed to the public, the first response in many cases was to say that better processes are needed to deal with it. This is nearly always the number-one response. But why would better processes work now when they haven’t before? Furthermore, many of Heydon’s actions involved an abuse of trust, and there is no rule against abuse of trust.
I’m all in favour of more effective regulations, laws and watchdog bodies, but there’s a danger in thinking that this is enough. Several other options are neglected by comparison.
One important option is improved skills. Imagine that those around Heydon had been better prepared to expose and counter his behaviour. This doesn’t just mean the women he targeted, but others too, so-called bystanders, especially those who heard about his actions. Skills against sexual harassment include putting graffiti in women’s toilets — and in men’s toilets. They include being able to use anonymous remailers and set up secure websites. They include being able to make covert recordings, and being able to document events and convey them powerfully to others.
This might sound like putting the onus for action on the target, in effect blaming the victim, but just as much onus needs to be put on others to provide support and take action. Bystander training is valuable in skill development.
Another important option is changing the culture. The legal profession is highly hierarchical, with judges at the apex. A more egalitarian system would reduce the power of elites, empower those lower down and enable stronger challenges to abusers.
Changing the culture might also mean changing expectations so that associates are treated as professionals rather than as personal assistants. It might even mean getting rid of the role of associates altogether, providing support for judges in other ways.
The point here is not to provide a blueprint but to note that there are options besides official channels. Improving skills and changing the culture might not be easy but they show quite a bit of promise, especially considering the failure of decades of official concern about sexual harassment. It is revealing that if official channels were effective, there would have been no need for the #MeToo movement — or for investigative journalists to expose people like Dyson Heydon.
Thanks to Sharon Callaghan and Qinqing Xu for valuable comments on a draft and to the many individuals over the years who have helped me learn about the issue of sexual harassment and what can be done about it.