A man would never get away with it: to state the dilemma of 1990s feminism so eloquently. A woman _ a self-described feminist _ has had a difficult time doing it. This month sees the publication of The First Stone in which Helen Garner tells the true story of the case of the Master of Ormond College in the University of Melbourne. In the book the Master is given the name of Dr Colin Shepherd. Dr Shepherd was accused of sexual harassment by two students at a college end-of-year bash in 1991. He was charged with two charges of indecent assault. One was dismissed at first instance; the other on appeal.
Dr Shepherd lost his job and the academic community closed ranks with the women and he has not been able to get a job in academia since. When the court case came up, Garner read about it in the Age and wondered: Has the world come to this? She rang women friends of her age, feminists pushing 50. They had all noticed the item. One said, “”He touched her breast and she went to the cops? My God _ why didn’t she get her mother or her friends to help her sort him out later, if she couldn’t deal with it herself at the time.” Another said, “”Look, if every bastard who’s ever laid a hand on us were dragged into court, the judicial system of the state would be clogged for years.” Garner points out that the punishment given to Shepherd (even if he did it) was grossly out of proportion to the offences _ touching a breast while on a dance floor and saying to another student that she was beautiful and that he had often had indecent thoughts about her and asking to kiss her. Sure, sleazy conduct. Garner argues in her book that it did not warrant loss of career. For writing this she has been ostracised by many of her feminist friends.
The dilemma she poses is this. Women in the feminist movement want empowerment and argue that women can be strong individuals. But “”puritan feminists . . . are offended by the suggestion that a woman might learn to handle a trivial sexual approach by herself, without the need to run to Big Daddy and even wreck a man’s life, because it unsettles their unstated but crucial belief: that men’s sexuality is a monstrous, uncontrollable force, while women are trembling creatures innocent of desire, under siege even in a room full of companions”. Garner has got herself off-side with the newer breed of feminist by turning their argument about power on its head. The women who complained about Shepherd _ Elizabeth and Nicky _ asserted that Shepherd was abusing a position of power because he was the Master of the college in which they were students. Garner pointed out that their evidence was that Shepherd was on his knees to Elizabeth looking up to her and saying how attractive she was. “”Who is in power here?” Garner asks. And more pertinently she questions the motives of the younger, puritan feminists.
She says that she fought for justice and equality of opportunity in the second wave of feminism of the 1970s (the first wave been the suffragists at the turn of the century). The puritan feminists are different. They saw Shepherd as a symbol; a man in power. When asked about the proportionality of his punishment while others got away with it, they argued that he should take the punishment for them and that his treatment should be an example. On reading about the case, Garner wrote to Shepherd as follows: “”I read in today’s paper about your troubles and I’m writing to say how upset I am and how terribly sorry about what has happened to you. . . . It’s heartbreaking for a feminist of nearly 50 like me, to see our ideals of so many years distorted into this ghastly punitiveness.
“”I expect I will never know what really happened, but I certainly know that if there was an incident, as alleged, this has been the most appallingly destructive, priggish and pitiless way of dealing with it. “”I want you to know that there are plenty of women out here who step back in dismay from the kind of treatment you have received, and who still hope that men and women, for all out foolishness and mistakes, can behave towards each other with kindness rather than being engaged in this kind of warfare.” It was a courageous letter. Of course, during the court processes it got out and Garner was immediately stereotyped. In her book Garner wrote of many attempts to get the other point of view, but neither Elizabeth nor Nicky would be interviewed and nor would any of their supporters.
The book successfully takes this small incident to deal with the greater subjects of female-male relationships; power and sexuality. After the court dismissals, the women took a complaint to the state Equal Opportunity Commission. The commission’s aims are to conciliate in an environment of confidentiality. The college board passed a motion of lack of confidence in Shepherd, effectively making his position untenable. Eventually, the college had to pay both the women and Shepherd. Garner quotes an older-generation feminist describing the women in their early 30s teaching in the universities now: “”To them the whole thing is located in the discourse of power and the abuse of power. And the new ideology is that sexual harassment is a crime. If you get the opportunity to punish someone, you really ought to.”
I find worrying the fuzzy boundary between sexual harassment as a crime and sexual harassment as ugly conduct which has to be dealt with in its setting so it is not repeated. There are a couple of concerns. First, conduct which is sexual harassment in one instance might not be in another, depending on the state of mind of the recipient or victim. Second, under present arrangements the recipient or victim makes the allegation which then has to be dealt with by a commission or quasi-judicial authority without the intervention of some independent prosecuting authority to look at the evidence.
The Federal Sex Discrimination Act, for example, defines “”sexual harassment” as follows: “”For the purposes of this Division, a person sexually harasses another person (the “person harassed’) if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated. That may well be a good definition of undesirable conduct in a workplace which should be prevented, but it is not a good basis for defining a crime. This is because of the phrase “”unwelcome” _ it is all dependent upon whether the person harassed feels something. The state of mind or feeling of the victim is not a good basis for convicting someone of a crime. Sure, the definition does attempt to put up an objective test of unwelcome as what a reasonable person would think of as unwelcome. None the less, “”unwelcomeness” is a key element to sexual harassment. And if exactly the same conduct is not unwelcome then it is not harassment. The essence of a crime is that the criminal knows he is doing wrong. Under the usual definitions of sexual harassment, however, the wrongness arises out of the recipient’s state of mind. This is not to condone sexual harassment, but to put it into proportion. It sits more easily with civil law. How often do we hear that men do not know how awful they are; how unwelcome they are? Garner’s plea to put things in proposition is a valuable one. There are two paths here. On one hand there are: education, conciliation, changing future conduct, compensation. On the other hand there are: exposure, conviction, retribution and punishment.
Garner quotes a (old guard) feminist friend: “”To me, sexual communication is so complex and difficult _ harassment is always going to happen without people intending it to. But for the radical feminists, even for me to hold that view is counter-productive to the advancement of women.” That mature view tells us that dealing with sexual harassment (as distinct from assault) as a crime is a dangerous path. It will result in people being convicted without intending to commit a crime _ the very antithesis of criminal law. Garner points out that some women might not understand this. They would say: “”Surely he can tell I’m only being polite, that I’m not liking it. How can he be so completely unaware that I’m actually hating it? Why isn’t he reading my mind?” This is a reasonable plea to be understood, for empathy. Getting that understanding will not be achieved by threats of criminal sanctions. There remains a danger that even if sexual harassment is treated formally as a matter for education, conciliation, prevention and compensation, accusers will do their damnedest to get a result of punishment (rather than compensation) _ even if it is not formally a crime. In the Shepherd case, they went for the jugular.
The punishment was to be to wreck Shepherd’s career _ for him to lose his job and never get another one. That retributive approach puts the treatment of sexual harassment firmly in the “”discourse of power”, rather than where it should be: making women’s lives better. The retributive approach is to go for the jugular _ for the head of power. On the building site or metal-work shop the victims do not want the brickie sacked for wolf-whistling or the welder sacked for having lewd posters displayed on his locker. There is no power there. No; it is straight to the boss (usually male) to force him to pay compensation, to attack his power. However, if the alleged perpetrator is himself in a position of power, then he is to be brought to book personally. The disadvantage of making sexual harassment a case of crime and punishment is that it is self-defeating. Courts of their nature are adversary and open.
The response of the accused is bound to be denial, open defiance and attempted justification. In short all the aggressive, unpleasant, male responses that presumably victims of sexual harassment want to change. Courts also work on the rules of evidence. Generally, only what witnesses actually see with their own eyes can be admitted. The rules of evidence exclude the very things that underlie sexual harassment: feelings, perceptions, conclusions and speculations. (Of course, you could change the rules of evidence _ but it would be easier to change human nature.) That said, I would like to think Garner is wrong and that the world has not “”come to this”; that rather the Shepherd case is a one-off extreme example; that there are enough people of good will to deal with sexual harassment more sensibly than the Shepherd case.
A sad element of the case is the failure of the accusers or their supporters to give their version. The failure to defend their position is very telling. Why did they go to the police? Why did they pursue the equal-opportunity case after the acquittals? Of course, early on in the saga they dismissed Garner as being on Shepherd’s side, a sell-out to the feminist cause and presumably thought it better that she be left to run a one-sided version that could be easily dismissed as biased. They were mistaken.
The result has been a very perceptive canvassing of the issues. But only a woman with solid feminist credentials could have done it so credibly. The First Stone. Helen Garner. Picador. 222pp. $14.95. BREAKOUT The publishing director of Pan Macmillan, James Fraser, said he was glad legal attempts to prevent publication of the book were unsuccessful. The two women who brought the sexual-harassment claims discussed in the book attempted to get a court injunction preventing publication until they had had a chance to see the manuscript and check it for libel. Mr Fraser said there had been substantial legal difficulties, “”but the quality of the book was so good that it had to be published”.