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Further implications
The #MeToo movement has highlighted the shortcomings of the law and of workplace complaint procedures with regard to sexual assault and harassment. It has also demonstrated the narrow application of the presumption of innocence. It is probable that it is about to test the efficacy of defamation law.
Numerous analysts and commentators have stressed the need for changes in the law governing sexual offences and how those laws are implemented. The law as it currently stands does not appear to offer the victims of sexual assault or harassment a genuine opportunity for redress or remedy. Too few of those accused are prosecuted and too few prosecutions result in conviction. Further, punitive societal attitudes and lack of faith in the outcome of investigations and trials means that a majority of victims of sexual assault do not even seek to have charges brought against their attackers.
Though critical of aspects of the #MeToo movement, Canadian novelist, Margaret Attwood, among many others, has pointed to the failure of current legal systems to deal adequately with sexual harassment and assault. Attwood has written, 'The #MeToo moment is a symptom of a broken legal system. All too frequently, women and other sexual-abuse complainants couldn't get a fair hearing through institutions - including corporate structures - so they used a new tool: the internet...This has been very effective, and has been seen as a massive wake-up call. But what next? The legal system can be fixed, or our society could dispose of it.'
As Attwood notes, it is not only the legal system that has been found wanting. Those in authority in workplaces - overseers, managers, human resources officers, producers, directors, those on the floor, in middle management and upper management have either not listened, not believed or had a greater loyalty to the business or the company than to individuals working within it. When actor Ashley Judd spoke of the sexual harassment she endured from producer Harvey Weinstein she explained the powerlessness she felt because she believed there was nowhere she could go to get redress. 'Were we supposed to call some fantasy attorney general of moviedom?...There wasn't a place for us to report these experiences.'
It would appear that there is a need around the world to change the way workplaces respond to sexual harassment and assault. Numerous commentators have noted that it is not just policies that are needed. The manner in which they are acted upon is equally important. One of the actions that has been proposed is banning confidentiality clauses in sexual harassment settlements. Though important, this is only part of the solution, as those receiving confidentiality are among a fortunate minority who have at least had their grievance addressed, however inadequately.The flip side of this issue is the widespread concern that has been expressed for those accused of sexual harassment or assault who have lost their jobs and their reputations on the basis of an allegation. There is frequent reference made to a 'presumption of innocence'. This is a protection that exists only when an accused is being tried. It exists within the legal system, but nowhere else. None of those who have heard accusations made, for example within Australia, against Geoffrey Rush or Don Burke or Craig McLachlan or Robert Doyle is required to give any of these men the benefit of the doubt. However, the issue has exposed the readiness of the public to rush to judgement and condemn on the basis of an allegation. It suggests that there is need for widespread public discussion on what reactions are appropriate when someone is accused of an offence.
Media outlets and private citizens can be sued for defamation; however, depending on the jurisdiction, defamation has been claimed to be too easy or too difficult to establish at law. Defamation in Australia occurs when a person intentionally spreads false information about another person, group of people, or company that damages their reputation, or can make others think less of them. Being able to establish that the information that has been disseminated is true is a defence against defamation. A similar law operates in many other jurisdictions, including within the United States. Defamation is actionable regardless of the medium. A person can be defamed, for example, in print, through photos and on the internet.
For example, Australian actor Geoffrey Rush is suing The Daily Telegraph for the manner in which it reported as yet undefined and unsubstantiated accusations of sexually improper conduct made about him. Many commentators have anticipated large numbers of defamation cases as a result of current accusations of sexual harassment or assault. Some individuals and media outlets have already been sued for defamation and it seems likely that more will be. In the United States, proving defamation in these cases is difficult, particularly because the plaintiff must prove the statement is false, in these instances that would mean that the sexual assault did not happen. The burden of proof is therefore shifted in defamation shifts to the person accused of sexual assault, which means alleged victims will have an easier time than they would in a criminal case where the state would have to prove that an assault did happen.
This is not the case in Australia where a claimant needs to prove beyond reasonable doubt that an allegation is true. Thus the burden of proof remains with the person who has claimed to be assaulted. It will be interesting to see how many of the men accused online of sexual harassment or assault will actually be charged with an offence and tried. Should this begin to happen, the legal system all around the world will have a harsh light shone upon it.