A sense of entitlement

Kelly Thomas, Senior Legal Officer

Earlier in 2020, we heard of the shock departure of the University of Adelaide’s Chancellor, Kevin Scarce, as well as the absence of its Vice-Chancellor, Peter Rathjen, due to illness. With the release of The Hon. Bruce Lander’s Statement about an Investigation, the actual events have now been unveiled.

Rathjen’s actions reek of an entitled man. He engaged in sexual harassment against two women at the same work function – a University function – which had lasting consequences for those two women. The Independent Commission Against Corruption (ICAC) found that he deliberately engaged in this conduct, which was of a sexual nature and to which the women did not consent. Imagining his behaviour is sickening: because so many women have experienced that entitled, privileged and uninhibited behaviour by men. The kind where they act with disregard for anyone else’s feelings because they can. Because the power imbalance that so often appears in workplaces, in work relationships, undercuts the notion of consent.

As we found out through the ICAC’s Statement, Rathjen apparently has form in this area. While the University of Adelaide was undertaking its investigations, Rathjen received allegations of sexual harassment or abuse that allegedly occurred while he was employed at the University of Melbourne. The University of Melbourne has now passed the report into those allegations to the ICAC, and Vice-Chancellor Duncan Maskell announced to staff that he remained ‘determined to stamp out sexual assault and harassment’, all but confirming that Rathjen’s latest complainant was right in coming forward.

The University of Tasmania, another of Rathjen’s former employers, has reached out as well – advising that any complaint would be investigated.

At this point, all of Rathjen’s victims have wanted to remain anonymous. And that is entirely understandable. No doubt the women are keen to ensure that they have ongoing careers in their chosen fields and don’t want to be associated with such events. They no doubt wished it never happened to them. I have a message for you, if you’re reading this: good on you. Good on you for stepping forward, at great personal risk and at great personal expense. Thank you for reporting this so that no one else will experience his behaviour. Thank you for once again shining a light on sexual harassment which is, unfortunately prevalent in every industry, but shouldn’t exist in the higher education sector.

And it isn’t just higher education: it is everywhere. Former High Court judge Dyson Heydon has fallen from grace following an investigation into his conduct which spanned many years during which he traded on his powerful role. His actions cost the futures of young women who entrusted him with guiding them into the legal profession. The Federal Court also recently threw out an appeal by a lawyer who sexually harassed his paralegal – a woman in her 50s – showing that sexual harassment can happen to anyone. The Court, horrified, stated:

‘He now appeals to this Court. His points are three. First, the evidence did not support the conclusion that he had sexually harassed the Respondent because he was to be seen as being – and this was the actual submission – like Mr Darcy in Pride and Prejudice.’

My skin is crawling again with the idea that men – and it is mainly men – have this sense of entitlement not only over women, but also when dealing with allegations like these. Rathjen felt like, and did, lie to the Chancellor and to the ICAC. He did that because he thought he would get away with it.

“I have found the Vice-Chancellor lied to the Chancellor on three occasions. He lied in his evidence to me. I have found that he has lied when it suited him to do so.’

Which is why the other element of the ICAC’s report is most troubling. As was reported in relation to Heydon, there seems to be a protection racket going on around this behaviour. In Rathjen’s case, one of the victims made a complaint and the University sought external legal advice. That legal advice was in effect driven at protecting Rathjen’s reputation. The advice was for the

Chancellor to have a chat with Rathjen. That occurred, and Rathjen admitted his behaviour. But it was never reported to the University Council – Rathjen’s employer – giving rise to circumstances where victimisation could flourish. The ICAC’s report is not critical of the Chancellor – he was following legal advice – but it is critical of the legal advice given.

Because that is so often how a culture of sexual harassment continues. When a brave woman stands up, she is embroiled in a secretive investigation where she must suffer humiliating questioning and attacks on her character while the perpetrator continues at large. All the while employers hire top gun lawyers so they can rely on legal professional privilege and non-disclosure agreements to never let this culture and conduct see the light of day. I’m not suggesting we disregard procedural fairness, but the structures undoubtedly support perpetrators.

Fortunately, there is good work happening. Kate Jenkins, the Sex Discrimination Commissioner released her Respect@Work: Sexual Harassment National Inquiry Report earlier this year – unfortunately losing airtime to the global pandemic, but which requires closer attention. The ACTU has also joined up with the AHRC and ACCI to release the Know the Line campaign. Because it is too important for all women to have the greatest chance at success at work and for men to stop thinking it is okay to harass women.