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Foley’s defamation threat has implications for workplace victims of sexual harassment
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Foley’s defamation threat has implications for workplace victims of sexual harassment

Last Thursday’s proclamation by now-former NSW Opposition Leader Luke Foley that he would commence defamation proceedings in response to allegations of sexual harassment by an ABC reporter has “major consequences” for victims of sexual harassment and other forms of misconduct, including in the workplace, argues a Sydney-based managing partner.

Speaking to Lawyers Weekly, Marque Lawyers managing partner Michael Bradley said that victims already face structural obstacles, given the risk to their careers, which is one of the things ABC reporter Ashleigh Raper specifically referred to in explaining why she chose not to come forward at the time of the alleged incident.

“She was worried about it affecting her position as state political reporter. Victims in a workplace context have to make a complex calculation about how their complaint will be handled by management, which is an unknown regardless of what policies are in place,” Mr Bradley explained.

“They also have to consider how their peers and superiors will react generally. A complaint of sexual harassment is an attack on the institutional power structure, so its response tends to be defensive if not outright aggressive.”

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“Individual members of that structure may instinctively move to protect it, whether or not they are personally inclined to believe the complainant. It’s one of the features we’ve seen in the Geoffrey Rush case, for example.”

If your workplace is a law firm, the risks are compounded, Mr Bradley said, because the “law can be easily used as a weapon” against the victim.

“The threat of defamation proceedings is a powerful weapon in Australia, because our defamation law is so plaintiff-friendly,” he said.

“The increasing use of defamation suits by alleged perpetrators of sexual misconduct is having a strong deterrent effect on victims and the media from exposing stories. The legal risk is very high.”

When asked what lawyers can do in the context of this conversation, he said they have a “social responsibility”, as in any other scenario.

“There is a defamation industry, which operates amorally and regardless of the human and social cost of defamation cases. The law is supposed to serve social purposes, not just provide a mechanism for pursuing personal rights and grievances.”

“There is a social reality that sexual harassment and worse behaviour, mostly perpetrated by men on women in a position of vulnerability, remains endemic and is not getting better,” he mused.

Lawyers should also be playing a constructive role in helping to refashion the law to help rather than retard the #MeToo movement.

“We should be vocally advocating law reform on a range of fronts, including urgent defamation law reform. It is critical that defamation is not allowed to be used as a weapon to prevent the powerful from being held to account for their behaviour. Otherwise nothing will really change,” he posited.

An example of practical measures that lawyers can get involved with is the #LetHerSpeak cause, which launched last week and which Marque Lawyers is supporting.

“We’re working with ‘End Rape On Campus’ and other advocates to push for reform of a weird law in Tasmania and NT which prevents victims of sexual assaults from publicly revealing their own identity. That stops them from telling their stories, which only serves to benefit their perpetrators,” he noted.

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