#MeToo, page 23
Taking all these dry facts and drilling back down into an industry I work in, the legal industry (which, if there was a Richter scale of privilege, would be considered right up there), the statistics for female legal practitioners are sobering. This is, after all, an industry which should know better than just about most, and is all about teaching its practitioners to know how to protect themselves, and their clients.
The Law Council of Australia’s National Attrition and Re-Engagement Study Report (2014) found that half of all female lawyers reported experiencing discrimination due to gender, that one in four women respondents reported experiencing sexual harassment in their workplace, and that the situation was even worse for women at the bar.42 A friend recently recounted the time she’d been a very junior litigation lawyer in a top-tier firm and was given a significant case to run alone. The case consumed a good six months of her life, but she made it to her first day of trial with the two male barristers she’d appointed (a silk and junior counsel), both briefed and ready to go. The other party’s all-male team of instructing solicitors and barristers walked into court prior to commencement of the hearing and the QC appointed by my friend turned to them and said loudly, ‘You don’t have a chance. You don’t know about my strategy. I’ve slipped [my friend, the instructing solicitor] twenty dollars and she’s going to jump on your lap right now and throw you off your game. I’ll even throw in a conference room if it means you’ll be late before the judge.’
All eight or so of the men at the bar table burst into laughter and not one of them pulled the QC up on his comment about my friend – the only woman at the bar table. Despite being one of the brightest and hardest-working lawyers in her firm, whose gender had never appeared to be a barrier before, my friend felt, in that moment, that she was worth nothing professionally, and would never be taken seriously again. In her words, ‘It was like this tide of inequality just hit me in the face and it was, honestly, crushing.’ She didn’t tell her responsible partner about it, or anyone else at her firm; although she acknowledges that, in retrospect, she should have. The QC might at least have been removed from the firm’s list of preferred senior counsel.
Another female lawyer friend, who has worked across the industries of construction, publishing and law, recalls, from her construction days, having to actively ‘strategise about moving through the building’ or risk being groped in lifts or corridors. She had to walk down hallways with her back to the wall and was blamed (being only one of three women on the premises) for the men having to remove their pornographic ‘wallpaper’ (although none of them bothered to remove their pornographic screen savers). While working in publishing, she recalls that 90 per cent of the staff at her publishing house were women, yet 90 per cent of the senior roles were filled by men who engaged in overtly discriminatory behaviour in favour of their male colleagues. When she started working as a lawyer, her traineeship year was marked by a more senior male colleague openly commenting on her breasts and other body parts, and telling her that her problem was that someone needed to have sex with her. At her next law firm, she was advised that she wouldn’t be considered for advancement because women between thirty and forty ‘are a ticking time bomb’. When she went in-house as a lawyer, all women in the organisation were openly given a ‘do-ability’ rating by their male co-workers. And she never once reported all the cascading instances of sexual harassment or discrimination she received for fear that she would be treated as a problem, rather than be protected.
Another friend who once worked at the then top Australian national law firm – a woman who is incredibly tough, pragmatic and bright, and always has been – recounts how she once clerked at a rival top-tier firm one winter while she was still at law school, and was ‘taken under the wing’ of a blond, male senior associate who acted as her sounding board and mentor during her clerkship and was never inappropriate or remotely flirtatious. After the formal clerkship was over, he asked her out, which she was thrilled about. On the night of their first date he came to her home, ostensibly to take her to dinner, but instead held her down in her bedroom and raped her. Her parents were away. Her clerkship was over. She was a young university student whose first response, after he let himself out of her family home, was to get in the shower and wash herself like she’d never washed herself before. And she remembers thinking, as it was happening, that she had to give in because she didn’t want to get beaten up and she remembers bargaining with herself, so that she would come out of the experience without getting too hurt.
The legacy of that ‘date’ is complex and multifaceted and includes her eventually leaving the law altogether – which she was extraordinarily good at – and Australia, to be a teacher across Asia, eventually moving into teaching in the United States. The rape, which she never reported, changed the shape of her life, the shape of her relationships (her partners have been almost the physical opposite of her attacker, and she has only ever partnered with men who don’t threaten her sense of self). It took her years to move back into a patent-attorney, then legal-strategy role, where, ironically, large law firms like the one she turned her back on years before (in light of her formative ‘experience’ with a more senior male lawyer, in disgust at the male drinking culture, at male partners sleeping with junior female staff, at the absolute lack of female role models) are now her clients. She is in her late forties now, and she has still never told her parents what happened. But she tells me that it has weighed on her for years that that man might have done what he did to her to others. And she has heard herself telling her clients many times that nobody wins if you go through the court system and she has asked them to think about what it would cost you to be right – you need to make a conscious decision about what it will cost you to fight, and what it could cost you to lose. And maybe there’s an echo there, of the small, desperately bargaining voice inside her head, the night she was being raped.
Depressingly, women being discriminated against, sexually denigrated, harassed or assaulted in the law isn’t a new story. It’s just a hidden story. From female ex–High Court judges and governors-general43 through to female practitioners in private practice and in the court system44, the prevailing view is that ‘the whole #MeToo movement is yet to hit the legal profession’.45 The great irony is that while, on paper, female lawyers look to be in one of the best positions to protect themselves and their colleagues from discrimination and sexual harassment, the profession is still highly conservative and male-dominated (at senior ranks). As Brett Kavanaugh’s fresh confirmation to the US Supreme Court testifies in the North American context, the consequences of making sexual assault allegations against a powerful male in the legal sphere are devastating – and likely to be ultimately fruitless.
As recently as 26 September 2018, one female legal commentator wrote, in an open letter to her former law student self and to the readers of Lawyers Weekly:
I know what I am saying is controversial, but when it is you versus someone much more powerful and that person has been bullying for the last decade and is still there, you are not going to come out on top if you take this further. Unfortunately, sometimes the only real choice you have is the choice to stay or the choice to go . . .
You cannot always rely upon supervisors, or other people to save you. Sometimes you need to helicopter yourself out and end a toxic situation (in work and life).46
Put another way, as a female lawyer (with all the ostensible privileges) you can either stay and put up with the groping, bullying, denigration, harassment and/or violence, or leave and become, possibly, an exile from the centre. An outworker, if you like. And, in case it escaped you, the choice to ‘helicopter yourself out and end a toxic situation (in work and life)’ is not a choice open to a lot of marginalised women, who cannot leave for a variety of reasons centred around lack of power: economic, social, physical, legal and/or otherwise.
A friend of mine who identifies as queer and lives with a disability was sexually assaulted when she was a teen, while she was sleeping, by a male teenage friend of her brother’s. She woke as it was occurring, but kept silent and pretended to be asleep, for complex reasons to do with low self-esteem, for being (in her words):
a fat, disabled teen [who] thought no one would ever want me, so when this guy who wanted to touch me while I slept [but] never showed an interest in me romantically or sexually while I was awake, it confirmed in my mind that I was undesirable, unwanted. All I was good for was an assault in my sleep.
She never reported the assault because he is still a ‘family friend’ who is part of her social circle. But whenever she sees the man in a social context, she is reminded of what happened, what she didn’t do (report him) and, because it ‘felt like too much to go through all these years later’, that it will never be resolved.
Another friend who exists in the intersection of multiple identities – female, African, queer, Muslim, refugee – tells me fiercely that there is no space in the current #MeToo movement for intersectional women like her, that ‘it is not a movement for us’, because black girls are persistently seen as objects – hypersexualised, infinitely accessible, disposable – before they are even seen as children, or indeed as human.47 She recounts with eerie calm how she was first sexually assaulted as a five- or six-year-old by an adult male stranger (without the ability to fully comprehend what was happening and why it was happening) and how these manifold sexual assaults and harassments – groping, touching, over-familiarity, leering, comments – have continued since then largely from white men in this country, including primary-school teachers. In her words, ‘hypervisibility means hypervulnerability’ in this country and there is ‘no privilege [for women of colour] to be upset or sad’. There is, simply, no privilege to be left alone. While she was a teen in a school uniform on public transport, she could never be sure that she would make it home without some sexualised incident occurring. Even two years ago, in her late teens, as a university student active in the student union, she felt unable to escalate a sexual harassment report she’d filed against an older male student because she knew, from experience, that student administration did not act on claims from people of colour. She’s been told that she was ‘lucky’ to have instances of sexual harassment happen to her based on the default assumption that to be African and/or refugee and/or Muslim and/or female meant that she was in some way inherently unattractive. And she internalised all of this growing up as ‘I have done something’ (Why did I leave home that day? Why did I wear that?) and has repeatedly punished her body for it – by not eating, by changing the way she dresses, by changing the way she speaks – although the real cause is the actions of others. The way you are can’t ever be helicoptered out of. This is something that #MeToo, in its current incarnation, fails to address. For some of us, there are no escape routes.
The reasons female lawyers don’t come forward to report sexual harassment are complex and include the fear of committing ‘career suicide’48 (loss of immediate employment, loss of future employment opportunities) in an industry which is small and relatively connected; a wish to not be perceived as ‘weak’ in a traditionally male-dominated industry49; fear of retribution or further harassment; victim blaming; and advice that it is better not to complain.50 So if the promise of #MeToo hasn’t yet arrived for female lawyers in this country, what then for black and brown girls and women, or for those who are disabled, LGBTIQ+ or who may be more than one of these things, who face a whole different set of problems and challenges which may be intrinsically tied in with their physical safety or daily wellbeing?
The origin story of the #MeToo movement is illustrative.
One thing that often gets lost in the mainstream narrative of #MeToo is that it was actually the brainchild of a woman of colour, Tarana Burke, who, in 1997, heard the story of a sexually abused thirteen-year-old African-American girl called Heaven and was determined to one day do something to help – because she couldn’t find the courage, or the means, to help her in that moment.51 Her grassroots movement, Me Too – devised to assist young minority victims of sexual harassment and assault – formally began in 2006–2007. In October 2017, actress Alyssa Milano used those words to urge women who had been sexually abused or assaulted to stand up and be counted; and the rest is history. When in 2017, Time magazine recognised the #MeToo movement as its ‘Person of the Year’, Tarana Burke was left off the front cover.
I’ve only just scratched the surface of the Australian context, but as Onwuachi-Willig has noted in the US, antidiscrimination law ignores the:
complexities of how gender and racial subordination, stereotype, and bias can shape a victim’s vulnerability to harassment, her credibility in the eyes of factfinders, and others’ perceptions about whether she is harmed by the undesired conduct. It also disregards how a complainant’s own understanding of others’ perceptions about her group or groups, whether based on race, sex, or other identity factors like religion and age, can shape her own response to the harassment she is enduring.52
While sexual discrimination and harassment impacts all women, the relative difficulty (and in some cases, inability) of the marginalised woman to access the law, and for her particular vulnerabilities (class, racial identity or otherwise) to be adequately recognised by the law, compounds the damage to her, and her invisibility. If the law, let alone the #MeToo movement, is not yet able to help all segments of the relatively privileged female population to stamp out gender violence and discrimination, how then can it help intersectional women labouring, for example, in agriculture, in hospitality, in factories, in sex work, in outworking, in cleaning services, in the domestic sphere?
As Tarana Burke herself has observed:
I often wonder if that sister in the diner has even heard of #MeToo, and if she has, does she know it’s for #UsToo? . . .
What history has shown us . . . is that if marginalized voices – those of people of color, queer people, disabled people, poor people – aren’t centered in our movements then they tend to become no more than a footnote . . . ‘Me too.’ is a response to the spectrum of gender-based sexual violence that comes directly from survivors – all survivors. We can’t afford a racialized, gendered or classist response. Ending sexual violence will require every voice from every corner of the world and it will require those whose voices are most often heard to find ways to amplify those voices that often go unheard.
The waitress in the diner may never stand up and say #MeToo . . . and that’s fine. But I want her to know that the global ‘me too’ community . . . has space for her too.53
For the current #MeToo movement to have real and lasting impact, it – together with mainstream feminists, feminist theory and antidiscrimination law – must adapt to finally recognise the marginalised, and allow them the room to speak in their own voices, and be believed.
A term first coined by author and disability advocate Corinne Duyvis in 2015 as a way of referring to stories about diverse characters written by authors from that same diverse group. See: www.corinneduyvis.net/ownvoices.
C. Collins, ‘What Is White Privilege, Really?’, Teaching Tolerance, Issue 60, Fall 2018 at https://www.tolerance.org/magazine/fall-2018/what-is-white-privilege-really.
K. Crenshaw, ‘Demarginalizing the intersection of race and sex: a black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics’, University of Chicago Legal Forum, vol. 1989, no. 1, 1989, Article 8.
The Combahee River Collective, ‘The Combahee River Collective Statement’ (1977) available at https://americanstudies.yale.edu/sites/default/files/files/Keyword%20Coalition_Readings.pdf at pp. 1–12.
E. Oxnevad, ‘Intersectional feminism, not “white feminism,” will strengthen the Women’s Movement’, Chicago Tribune, 1 May 2018 at http://www.chicagotribune.com/voiceit/yourvoice/ct-hoy-intersectional-feminism-not-white-feminism-will-strengthen-the-women-s-movement-20180501-story.html.
To give you some idea of what this term means see: S. A. Crockett Jr., ‘In a Display of “Peak Caucasity,” a White Man Claims He’s the Reason Another White Man Can Live in Brooklyn, NY’, The Root, 23 September 2015 at https://www.theroot.com/in-a-display-of-peak-caucasity-a-white-man-claims-he-1790861209 and J. Parham, ‘NYT Summer Reading List Finally Achieves 100 Percent Whiteness’, Gawker Review of Books, 24 May 2015 at http://review.gawker.com/nyt-summer-reading-list-finally-achieves-100-percent-wh-1706658703.
A. Onwuachi-Willig, ‘What about #UsToo?: the invisibility of race in the #MeToo movement’, The Yale Law Journal, vol. 128, 2018–2019.
S. Woodward, ‘Sexual Harassment on the Up – Australian Human Rights Commission announces the results of its national survey’, Norton Rose Fulbright, September 2018 at http://www.nortonrosefulbright.com/knowledge/publications/170333/sexual-harassment-on-the-up-australian-human-rights-commission-announces-the-results-of-its-national-survey?utm_source=Mondaq&utm_medium=syndication&utm_campaign=View-Original.
Ibid.
Australian Human Rights Commission, ‘Fact sheet: Changes made to the Australian Human Rights Commission Act 1986 (April 2017)’ at https://www.humanrights.gov.au/sites/default/files/Fact%20sheet%20-%20Changes%20to%20the%20AHRCA%20%28April%202017%29.pdf.
