How should #MeToo reports be handled?
As the first sexual misconduct prosecutions against lawyers are starting, Susanna Heley wonders whether the current regulatory framework provides a suitable response
The ripples of #MeToo continue to be increasingly noticeable in the law.
The Solicitors Regulation Authority has confirmed the prosecution of a number of individuals in connection with alleged sexual misconduct and has indicated that further prosecutions are in prospect.
Concerns about the use of non-disclosure agreements (NDAs) remain on the political agenda following a BEIS consultation on the issue and extensive commentary surrounding the work of the Women and Equalities Select Committee.
The very fact that the BEIS consultation launched on 4 March ran for only eight weeks rather than the standard 12-week period may be an indication that legislation on the use of NDAs will be enacted swiftly.
The social and political interest in this particular issue – and indeed the issues of sexual misconduct, bullying and harassment in the workplace indicates that the current prosecutions are just the beginning.
Allegations against at least two named solicitors were published by the SRA in May 2019, indicating that the Solicitors Disciplinary Tribunal has certified that there is a prima facie case to answer in each of those cases.
Both cases involve alleged unwanted touching of ‘person A’, however, only one of the publications on the SRA website draws attention to s1(1) of the Sexual Offences (Amendment) Act 1992 which aims to protect the victim of a sexual offence from being identified.
It is not clear at this stage whether the difference in publications indicates anything more than that the publications were drafted by different people at the SRA.
There are many questions which will arise in the course of the SRA’s investigations – and any subsequent prosecutions – where allegations are sexual misconduct. In many cases, there will be few, if any, witnesses other than those directly involved.
Civil proceedings and employment claims may well have been settled on the basis of an NDA with no admissions on either side.
Importantly, complaints to the SRA may not have been made by the victim but rather by firms or whistleblowers or indirectly via press reports.
The position of the SRA, in pursuing reports of sexual misconduct even where the victim has no desire to see a prosecution occur is wholly understandable from a public policy perspective.
Given the general perception that sexual harassment and bullying is widespread within the profession, taking action may well be necessary and desirable to force change even against the wishes of individual victims.
I am interested to see how this dynamic will play out. While every case will turn on its own facts and it may be that victims are willing to testify, there must be a concern that bringing regulatory prosecutions may be contrary to the wishes of victims.
Almost certainly, some victims will have moved on and just want to put an incident behind them. Will they find themselves obliged to relive traumatic events at the behest of the regulator? What will happen if a victim expressly does not wish the regulator to take action and refuses to give evidence? Might the SRA go so far as to compel co-operation if the public interest was perceived to be sufficiently engaged?
I have always taken the view that #Metoo is not about sex but about the misuse of power; the infringement of arguably the most fundamental freedom of choice – what you can do with your own body.
Seen in this light, prosecutions brought against victims’ expressed wishes seems to be a further infringement of their right to choose how to answer the wrong that has been done to them.
Not only that but, if the prosecution fails because the victim’s evidence is not believed – or the victim refuses to give evidence at all – will there be professional consequences for the victim? Will any attempts they have made to recover from an incident be set back by a failed prosecution? Will help be made available?
None of these are easy questions and they assume that there has been a genuine incident. What of incidents which are based on false or overzealous reporting?
Current indications are that those wrongly accused of sexual misconduct are likely to be irrevocably damaged by the accusation.
Firms appear to be taking a cautious line in the current political climate and taking immediate action to suspend or dismiss those accused of crossing the line.
Publications naming individual solicitors have been made by the SRA. While from a technical legal standpoint it may be sufficient to highlight that those allegations are not proven, the damage done to the accused – and their families – must be considered significant.
That damage cannot be undone if the allegations turn out to be unsustainable. Should alleged perpetrators be afforded anonymity unless and until allegations are proven?
When the SRA’s new provisions on reporting suspected misconduct – just approved by the Legal Services Board in May 2019 – come into force on 25 November 2019, firms and individuals will be obliged to report suspected serious misconduct to the SRA even before their internal investigations are complete.
This may mean that COLPs will simply report all allegations when made – assuming that they would amount to serious misconduct if proven.
Not only will there be no obligation on a COLP – or indeed any solicitor – to investigate and form a concluded view before reporting, the reporting requirements will extend to any regulated person who is the accused, the victim or a witness and will arguably kick in – certainly for anyone who believes themselves to be a victim of unwanted sexual contact – immediately.
At present, there are lots of questions and no easy answers. It is not realistic to suggest that people working closely on a day-to-day basis will not develop personal – including sexual – relationships with colleagues on occasion.
There is nothing inherently wrong in that provided that all parties are exercising their free will. Coercion should not be tolerated.
Harassment and any suggestion that a career will suffer because of a refusal to enter into a sexual relationship is abhorrent and should be dealt with severely.
The prosecutions currently being brought by the SRA may well provide some answers and guidance as to how these issues will play out long term.
The earliest we can probably expect to see any lessons emerging from these cases will be the end of this year. In the interim, and particularly in light of the recent findings published by the International Bar Association, firms need to reinforce the message that bullying and harassment is not to be tolerated in any form.
Consider training on how to recognise and respect personal boundaries. Not everyone has the same tolerance for risquÃ© comments and jokes and it may not be easy for people to say when an off-hand comment makes them feel uncomfortable.
One other recurring theme emerging from the various investigations into these issues is the prevalence of the drunken error of judgement. Firms may be well advised to encourage staff to know their professional limits where alcohol is concerned!
Susanna Heley is a partner at RadcliffesLeBrasseur rlb-law.com