Judging the Judges: The legal system’s reckoning with its own violence against women

CW: domestic abuse, coercive control, workplace sexual harassment

In recent weeks, an internal investigation commissioned by the High Court found that former justice Dyson Heydon had sexually assaulted 6 associates while on the bench of the High Court, between 2003 and 2013. The finding was a stark reminder that even the highest court in the land, which embodies honour and justice, is a place where a toxic culture of misogyny thrives.

This recent finding is far from an isolated incident of misogyny manifesting within our court system. Following a referral made by the Attorney General in 2018, an investigation into Magistrate Richard Pithouse by the Judicial Commission of Victoria exposed events where these misogynistic attitudes negatively influenced judicial outcomes. Seeping into the adjudication of cases, the effects of this toxic culture are felt by those who come before the law seeking justice.

Part of this investigation concerned insensitive comments Pithouse had allegedly made to female victims of sexual assault and family violence while determining their proceedings. Two particular instances were reviewed by the Commission. When referring to a victim of family violence, Pithouse stated “well, it’s her right to get beaten up if she wants to, I suppose, but, yes, go on”. Later, while hearing a claim in the Victims of Crime Assistance Tribunal, Pithouse said the victim of a rape had “put herself in that position”, and he characterised the victim’s attempt to seek out the support of a sexual assault crisis line the following day as “buyer’s remorse”.

These comments perpetuate pervasive and harmful misconceptions around sexual assault and family violence that a victim ‘asks for it’ or ‘brings it on themselves’. This was acknowledged by the Judicial Commission, which found that his comments “could reasonably be construed as victim-blaming” or “appear to blame the victim for the accused’s behaviour.”

While the behaviours of these two members of the judiciary, and their powerful position within the rigid legal hierarchy, are unique, both instances are an alarming confirmation of an underlying malignancy, which former judges associate and advocate Bri Lee describes as “a smell” detectable while working in the legal profession. The effect of this culture throughout the lower rungs of the legal hierarchy should not be underestimated. Magistrate courts deal with over 90% of the cases that reach a court, and often the parties in these cases are not as well represented or resourced, making them more vulnerable. Until we address the internal issues of the legal profession on all levels, we will not be able to ensure just outcomes for victims coming before the courts.

In response to its findings, the Commission recommended that Pithouse undergo internal mentoring and engage in judicial education programs on victims’ experiences. However, this outcome exposes the flaws of self-accountability when there are systems of impunity towards women, and complicity, within the ranks.

The Judicial Commission may hand down disciplinary recommendations, but these are not binding or coercive, and can only be enforced by the Chief Magistrate. Moreover, as judicial accountability operates in what is often seen as a fragile tension with judicial independence, a high threshold applies to the parliament’s ‘ultimate’ power of holding judges to account by removing them from the bench. With little means of enforcing accountability through external bodies, a fundamental cultural change must come from within.

As predicted, the inclusion of women at higher levels of the law has been key to shifting the status quo. Kate Jenkins, the Sex Discrimination Commissioner, stated on ABC Radio National that having a female Chief Justice “probably makes the most difference” and that it “is absolutely no coincidence” that the investigation into Heydon’s alleged sexual misconduct arose from a female led, gender-balanced court. In solidarity with the associates who made allegations against Heydon, fourteen female Senior Councils have since lodged complaints to the Office of the Legal Services Commissioner, denouncing this behaviour.

However, it is still a point of frustration that the burden of driving a cultural shift is being carried by women, who according to a report by the International Bar Association, are almost four times more likely to be the victims of sexual harassment in the workplace than their male peers. Chief Justice Susan Kiefel initiated the investigation after receiving the complaints regarding behaviour that occurred before she was appointed Chief Justice – a time when she was not responsible for the overall administration of the High Court. Moreover, it was reported by the Sydney Morning Herald, that the then Chief Justice Murray Gleeson had been informed of Dyson Heydon’s behaviour by another justice, Michael McHugh. It has not been reported what steps, if any, were taken following this incident but the lack of transparency and public accountability is a concerning revelation of the secretive and complicit approach taken to instances of harassment and misogyny in the legal profession.

In the last year, several profession-based surveys have identified the degree and prevalence of harassment in the legal sector, including the ‘Us Too? Bullying and Sexual Harassment in the Legal Profession’ report by the International Bar Association, and the ‘Sexual harassment in the Victorian Legal Sector’ survey conducted by the Victorian Legal Services Board Commissioner. These reports are important preliminary steps in addressing misogyny in the sector by exposing the nature of sexual harassment in the legal field.

Victim centring practices have also been at the forefront of judicial reform, as a useful way of minimising the effect of the legal structure on those who are coming before the law. For many victims, reliving their past experiences during a trial can be a source of retraumatisation. However, victims are more likely to be satisfied with an outcome if they are treated with respect and dignity within the process.

This is especially true for victims of sexual assault who see empathy within the system as counteracting broader stigmatisation. Centring victims, through the inclusion of victim impact statements, and respectful acknowledgement of their experience, is not only important in preventing retraumatisation, but in ensuring victims attain a sense of justice which is fundamental to the validity and legitimacy of our legal system.

Reforming the legal profession and how it is regulated is a necessary step in addressing the structures of misogyny and violence faced by women both as practitioners and as parties to a case. The best way forward is not clear, however what is clear is that real and effective change to the status quo cannot occur if perpetrators are to be untouchable while they continue to fill positions of social power as moral and social arbiters. As Bri Lee stated in The Saturday Paper, 27 June 2020, “I will be sceptical of any “real change” having occurred until we see a practising lawyer, or a currently sitting judge, held to account for sexual harassment.”

Megan Rosato has been a volunteer with the Victorian Women’s Trust since 2018, working on women’s representation through the Women in the Life of the City project with the City of Melbourne. When she isn’t grabbing a coffee, Megan is studying postgraduate law at the University of Melbourne Law School and aspires to be Melbourne’s fiercest lawyer.

Judging the Judges: The legal system’s reckoning with its own violence against women

Feminist Fridays live with Marlee Silva + Shelley Ware

Anti-Racism Resources from Australia and Beyond

Spare time? Here's some feminist things to do