Sexual Harassment Rife Within the Legal Profession

It’s a well-publicised fact that sexual harassment is prevalent in the legal profession, and now a new survey suggests that Australia has one of the highest rates of bullying and harassment amongst law professionals in the world.

Australia provided the highest number of respondents, accounting for about 13 percent of responses to the survey of 7,000 lawyers from more than 100 countries conducted by the International Bar Association (IBA).

The International Bar Association (IBA) is the global voice of the legal profession. It has a membership base of more than 80,000 legal practitioners, bar associations and law societies spanning more than 170 countries. It supports the global legal community, as well as influences the development of international law reform and the legal profession throughout the world.

Highest prevalence of bullying and harassment.

Thirty percent of Australian respondents reported that they had been sexually harassed in the workplace, compared with 21.8 per cent in the United Kingdom and 32.6 per cent in the United States. Women lawyers in Australia reported higher rates of harassment and bullying than their male peers, at 47 per cent compared with 13 per cent of men. The global average was 22 per cent.

In the survey, more than 60 per cent of Australian respondents also reported that they had been bullied at work, compared with 51 per cent in the UK, 50.3 per cent in the US and 43 per cent globally.

Australian Inquiry

The statistics come at an interesting time for Australia, as Sex Discrimination Commissioner Kate Jenkins conducts a world-first inquiry into sexual harassment in the workplace. The inquiry report is due later this year.

Despite the global publicity surrounding the #metoo movement, the fact is that many victims of bullying and harassment rarely report the misconduct of their workmates, preferring instead to leave their jobs or ‘put up with the status quo’ for feat of repercussions, damage to reputation or damage to their ability to progress their careers.

IBA statistics support this, showing that more than half, (57 per cent) of bullying cases and about two-thirds of (75 per cent) of sexual harassment cases worldwide are not reported.

Is bullying a crime?

Tasmania and Victoria have made moves to criminalise the act of bullying.

While bullying is not a crime in itself in New South Wales, section 13 of the Crimes (Domestic and Personal Violence) Act 2007 prescribes a maximum penalty of 5 years in prison for any person who intimidates or stalks another with intent to cause them to fear physical or mental harm.

‘Intimidation’ is defined by the Act:

1. Conduct amounting to harassment or molestation,
2. Approaching the other person by any means including phone, SMS and email in order to make them fear for their safety,
3. Conduct causing the other person to apprehend violence or damage to

Themselves or their property, or

4. Conduct causing a person with whom you have a domestic relationship to apprehend being injured.

‘Stalking’ includes:

1. Following the other person about,
2. Watching or frequenting the person’s residence, work, business, or any place the other person frequents for social or leisure activities, and
3. Contacting the other person through the internet or other technological means.

The Act makes clear that:

• The prosecution does not need to prove the complainant actually fear being harmed
• An intention to cause fear of harm means the defendant knew his or her conduct was likely to cause harm, and
• An attempt to engage in the conduct is sufficient to establish the offence

Is sexual harassment a crime?

Sexual harassment is dealt with under the Anti-discrimination law, which defines sexual harassment as:

• ​unwanted sexual advances, or unwelcome requests for sexual favours; or other unwelcome conduct of a sexual nature; and
• in the circumstances, a reasonable person would have expected you to be offended, humiliated or intimidated by this behaviour.​​

The legal profession in Australia conducted its own National Attrition and Re-Engagement Survey (NARS) in 2013 which highlighted the fact that one in four women have experienced sexual harassment in their legal workplace, and it is a key reason why women leave the law.

So it would seem, that despite some effort towards raising public awareness of the issue and putting appropriate workplace policies in place in an effort to stem the tide of sexual harassment in the workplace, there is still a lot of room for improvement in the legal profession here in Australia.

IBA’s recommendations for change

Following the survey results, the IBA has made 10 recommendations for change, including improving avenues for reporting bullying and harassment, engaging with younger members of the profession, gathering data and improving transparency, and maintaining the momentum for change.

In New South Wales

In response to the results, the Law Society of NSW chief executive Michael Tidball said the IBA data “underscores the need for the Law Society of NSW to continue to provide leadership in confronting systemic inequity between men and women and, at an individual level, deal with the distress that arises from harassment, bullying and inappropriate behaviour”.

Victims of bullying, sexual harassment and other professional misconduct can report offenders to the Law Society’s professional standards department.

Under the rules governing solicitors’ conduct, any of these unacceptable behaviours could lead to an offender being barred from practicing.