Why do so few workplace sexual harassment cases end in criminal prosecution?

I recall a story (not apocryphal) about a female partner of a law firm who turned her settlement cheque into a set of place mats, which she brought out with a flourish at dinner parties for years afterwards. So ends many a story of sexual harassment.

When Kristy Fraser-Kirk lodged a $37 million damages claim against David Jones Ltd in 2010 for alleged sexual harassment by then-CEO Mark McInnes, the business world drew in a deep breath, which it exhaled with relief when the case settled — after a few months of trial by PR companies — for a reputed $850,000. Fraser-Kirk got her compensation, McInnes got the boot, and justice was, well, we’ll never know.

The story was trawled over by the media from every conceivable angle. Except one: the fact that, if Fraser-Kirk’s allegations were true, then McInnes might have committed a series of crimes. She alleged, among other things, that he twice tried to kiss her on the mouth before placing his hand on her stomach and the bottom of her bra. That conduct, if proved, would comfortably have met the definition of indecent assault, which in NSW carries a maximum sentence of five years. It’s a serious crime. Noting, so this is entirely clear, that the allegations were never more than that, and McInnes remains entitled to the presumption of innocence.

But why did any potential criminal law consequences die with the commercial settlement?

Sexual harassment in the workplace is an ancient tradition. Still, if you can imagine that women are as entitled as men are to make all their own body-related choices, then it isn’t too difficult to recognise behaviour that is over the line. It coincides with what the law says: unwelcome conduct of a sexual nature in circumstances where a reasonable person would have anticipated the possibility that the harassed person would be offended, humiliated or intimidated.

[Age editor-in-chief Mark Forbes resigns after second sexual harassment complaint]

Thanks, in part, to the publicity surrounding cases like Fraser-Kirk’s, overtly public harassment isn’t so common these days, but sexualised behaviour of the more surreptitious kind remains prevalent in workplaces everywhere. Women in all professions and trades continue to report that they’ve been subjected to sexual harassment in ridiculous proportions.

Not all sexual behaviour is sexual harassment; people have the right to say “yes” as well as “no”. And not all sexual harassment is criminal. Persistently asking a work colleague for a date when they’ve made it clear they aren’t interested is likely to ground a sexual harassment claim, but it won’t amount to an assault (although at some point it will qualify as criminal stalking).

However, once physicality becomes part of the picture, then an act that constitutes sexual harassment can easily also become an indecent assault or even a sexual assault. Rule of thumb: if it would be wrong to do it to a complete stranger on the streets, then doing it to a colleague at work is no different. I’m not sure why some people seem to think it is. (Oh yeah, I remember: from next January, you can grab’em by the pussy …)

The practical reality is that most sexual harassment allegations are resolved by confidential commercial settlement. Money is paid to the claimant, they sign a deed undertaking never to speak of the matter to anybody ever again, and that’s the end of it. In fairness, from the corporate perspective, this type of claim is no different from any other. It almost always makes more sense to settle rather than fight. The allegations remain forever untested.

However, this type of claim is actually quite different. It’s a far cry from the recall of a dodgy product or compensating people for poisoning their groundwater. Crimes against the person are treated by criminal law as the worst of all, so there is an odd sort of blindness operating here.

In Saudi Arabia, the sharia law of diya still operates, which prescribes that the family of a person wrongfully killed can elect to receive compensation specified by the courts in lieu of criminal punishment for the killer. That’s pretty offensive to our Western sensibilities, since the rule of law ingrained in us says that criminal prosecution and punishment are exclusively matters for the secular authorities, not a question of bargaining for compensation. Many of us would describe it as barbaric.

That’s a little bit ironic, because our same rule of law dictates that assaults against the person are only different from unlawful killing in degree. The culpability is the same. Outsourcing the management of consequences for sexual assaults to negotiators on commercial terms would, if it were described in that way, be laughed out of the courts of both  justice and public opinion. But that’s really what, in most cases of workplace sexual or indecent assault, happens.

[Herald Sun’s 2IC left in February after sexual harassment complaints]

The law isn’t the problem here. It doesn’t matter what a settlement deed says about confidentiality, it cannot operate to prevent a criminal prosecution. Crime is a matter for the police and prosecutors to investigate and lay charges, and to argue in court. A victim can be compelled to give evidence whether or not they want the prosecution to proceed and regardless of what personal rights they’ve signed away.

Practically, though, in the absence of a complaint there is rarely an investigation, and without a willing complainant the case is very unlikely to proceed. So the probability of a workplace sexual or indecent assault resulting in a criminal prosecution is much lower than if the same conduct had occurred in any other context (except the home. But that’s another story.)

The problem is that the workplace needs quite some evolution yet. We’ve been slowly learning that women are people too, not soft toys. Tick.

We’re also starting to appreciate that failing to keep hands where they should be can have very expensive consequences, in money and careers. Double tick.

But we haven’t quite made the leap of understanding that, when we describe work as a safe place, that’s meant to refer to our safety from the unwelcome advances of workmates, not that the workplace is a safe haven from the ordinary operation of the criminal law.

Understandable that people choose to go for the money, but the threat of a perp walk would be the more powerful deterrent.