#TimesUp: calling it out at the Bar

Selena Plowden and Kate Brunner QC explain how all barristers, male and female, can harness the energy stemming from #MeToo, #TimesUp and #Callitout to speak out together against sexual harassment at the Bar and Bench

Madeline Albright’s admonishment that ‘there is a special place in hell for women who do not help other women’ has little relevance at the modern Bar.

This is a profession where women support each other with vigour. One of the effects of the #MeToo campaign has been a louder conversation than ever before between women barristers about issues relating to harassment and inequality. It does not take long in that conversation for troubling examples of sexism to be shared, and it has come as an unpleasant shock to many of us to realise that sexual harassment remains a widespread problem at the Bar.

The question we want to address here is: how can the Bar harness this new awareness for the good, to enable us to tackle issues which go to the heart of equality at the Bar and in our judiciary?

Acknowledging the scale of the problem

Before we talk about how to stop sexual harassment at the Bar, let’s acknowledge the magnitude of the problem. 2017 may be remembered as the year when the scales fell from the public’s eyes and the extent of hidden sexual harassment in the outward-facing, public-speaking industries of film and politics was revealed. It should be no surprise that sexual harassment affects lawyers too. In the 2016 Bar Standards Board’s survey Women at the Bar, 40% of respondents said they had been victims of sexual harassment at work. There were no significant differences in proportions across employed and self-employed respondents. A similar problem exists in law firms: a recent survey by Legal Week indicated that 64% of women in law firms had experienced sexual harassment at work. This is not a new problem, as demonstrated by the examples of historic and ongoing harassment reported by women in the 2015 Bar Council report Snapshot: The experience of Self Employed Women at the Bar.

For the majority of us, who do not experience or perpetrate sexual harassment at work, it is easy to believe that it is a hangover from the past, in its last throes. Many of us have progressed through our careers experiencing little or no overt discrimination and being championed by more senior men and women. But the sad truth is that sexual harassment remains all too prevalent. It is perpetrated in the overwhelming majority of cases by men, and it is particularly directed at the younger members of our profession, who need the most help to speak out. Here are some sorry examples, brought to the attention of the Western Circuit Women’s Forum (WCWF) as we were writing this article. We are aware of more serious allegations which are not repeated here. The context has been slightly changed in some examples to ensure anonymity:

  • A Circuit judge propositioned me outside a bar. He asked me if I was too old for him and then asked me what my favourite sex position was. I was also asked if I’d join him for a ‘night cap’. I was in the middle of mini-pupillage at that time and had not even embarked on my career. It was horrible. 
  • A male barrister in court recently said to me just before a case was called on, ‘Don’t worry your pretty head over it, you won’t have to say a word, my dear.’
  • A judge who had previously complimented my appearance asked a male barrister whether he was ‘enjoying the view’, gesturing towards me.
  • A security guard at court told me I was ‘looking very hot’ with a leer. I had no support from other security guards or court staff at reception when I told him that was unwelcome.
  • I walked into the robing room to talk to the two defence counsel in a trial I was prosecuting. A senior male barrister was talking to them already, and said ‘what a privilege to have such a shapely prosecutor’. It made me feel so humiliated that it was hard to concentrate on the negotiations that followed.
  • Several women described being ‘barracked for being over sensitive’ when they had objected to the use of sexual and misogynistic comments in robing room discussions.

We want to talk about it all

Evidently, some of these examples are at the lower end of the spectrum of unwanted behaviour. Female colleagues regularly exchange examples of unwelcome comments about appearance in the same conversation as examples of egregious abuses of power. It doesn’t mean we don’t know the difference: it just means we want to talk about it all. We are talking about it all because comments which sexualise women in the workplace make many women feel belittled, infuriated and at times humiliated. Even non-sexual comments intended as compliments rather than put-downs are often unwelcome at work. Academics have coined the phrase ‘benevolent sexism’ for all of those comments and stereotypes that can seem positive but set women apart, like the notion that women have the special gift of being more caring than men, or that women’s appearance is always a relevant topic of conversation. A young woman barrister tells us the effect of a compliment on her appearance in the courtroom in front of others: ‘It was undermining, distracting, and quite disheartening. It made me wonder whether I was ever going to be taken seriously – in a job that requires me to be confident in my ability.’ Although it may be tempting to brush this off as an overreaction, benevolent sexism has a measurable negative effect on women’s performance and credibility. In a study of political candidates, any comment made about a woman’s appearance, whether a compliment or insult, negatively influenced public opinion – the same was not true for men (see Name it. Change it: An Examination of the Impact of Media Coverage of Women Candidates’ Appearance, Women’s Media Center, 2013). When facing an employer’s benevolent sexist attitudes, women doubt their cognitive capabilities and perform significantly worse on various tasks (Insidious dangers of benevolent sexism: consequences for women’s performance, Dardenne, Dumont, & Bollier, 2007). Context, of course, is key: a compliment which is welcome in social situations may be really undermining in the robing room or at court.

We are talking about it all, from unwanted comments on appearance to assault, because sexism is one of the myriad factors responsible for the attrition of women from the Bar and thus the low representation of women on the Bench. In the BSB Women at the Bar survey, those who had experienced harassment or discrimination were more likely to have considered leaving the Bar. Although we have equal numbers of men and women joining our profession, there is an exodus of women meaning that only 25% of the senior Bar is female. If harassment plays any part in that imbalance, all the more reason to redouble our efforts to put an end to it.

Speaking out

The only way to stop harassment is to speak out. This is happening anonymously online, it is happening face-to-face when women talk, and now it needs to happen formally so that complaints can be investigated, and misconduct dealt with by sanction. WCWF has encouraged all women who we have heard from to report their experiences to the Bar Standards Board or the Judicial Conduct Investigations Office, or to raise a complaint, as appropriate. It is all very well telling young women to come forward but it is they who will have to grapple with the fall-out, and the courage required is not underestimated. Although some women have commendably spoken out, the BSB study tells us that most do not: over 80% of barristers who had been harassed did not make any complaint, most citing concerns about the impact on their career and attitudes at the Bar towards harassment and the reporting of harassment.

Barriers to reporting

The reticence to report must in part be due to the context in which harassment occurs. The close-knit and collegiate character of our profession, which is enhanced on Circuit where the local judges often come from the local chambers, provides great support to junior barristers. It may also be a barrier to reporting: how much harder it must be for a junior to report the behaviour of a judge who came from her own chambers, who she is in front of on a weekly basis, who is good friends with her senior colleagues. This is not fanciful: in the BSB study half of the culprits were in the respondent’s own chambers or organisation. The context of harassment at the Bar remains one where there is a power imbalance between the genders. The senior Bar and Bench is overwhelmingly male: 85% of heads of chambers are men; 85% of Silks and 72% of the courts judiciary.

"We don’t need to be any less collegiate, we just need to ensure that ours is a pack which actively condemns harassment"

The BSB has imposed a regulatory duty on barristers to report if they have reasonable grounds to believe that another barrister has committed serious misconduct, which includes sexual harassment. The compulsory reporting duty seeks to prevent any head of chambers debating ‘should I take this further, shouldn’t I’ when a junior member makes a credible report of sexual harassment by another member of chambers. The head of chambers is under his or her own regulatory duty to report, and will be committing misconduct themselves if they do not. This may be one way to ensure that there is no risk of reports of harassment being hidden by senior figures because of conflicting loyalties. The potential downside of the compulsory reporting regulation is that victims of harassment may feel that they will have no control over what happens as soon as they discuss their predicament with another barrister, as they would arguably transmit the reporting requirement along with the story. The Western Circuit is liaising with the BSB as to how a victim can informally discuss matters with a barrister colleague without losing control of the decision to report and we understand the BSB is to consult on whether current rules deter people from reporting cases of possible harassment within chambers. The Bar Council is shortly to publish a new model harassment policy to help chambers navigate these regulatory duties, and deal with complaints and internal investigations where appropriate.

What of the less serious comments which do not trigger any reporting duty? We hear that women often don’t complain because they fear being seen as humourless or sensitive: being told ‘it’s just a joke’ by a group of men doesn’t do much for a sense of marginalisation. ‘Call it out’ is a message for bystanders as much as for victims: we can all identify inappropriate comments in the robing room or in court. We can all regulate ourselves. In two of the examples above other people who had heard the comments made their disapproval plain, and in another example the man who had made the inappropriate comment apologised himself. If that is a sign of a change in culture then it is hugely welcome.

A long wait?

It is for us to change our culture. If we rely on our regulator to change us, we may be in for a long wait: despite the mandatory reporting requirement only two complaints of sexual harassment or inappropriate behaviour towards female barristers by male barristers have been made to BSB over the past five years. Chambers, Circuits and the judiciary can play a significant role in helping victims and witnesses to call out harassment. We can surely work out how to give real protection and meaningful support to those others who are considering speaking out so that we can say in good faith that their careers will not be harmed if they do. On the Western Circuit we are doing this through the Education Committee which has brought harassment awareness into training at all levels. We are doing this through creating networking events via the WCWF. We are asking chambers to check their sexual harassment policies. Senior women, who are more immune to abuses of power, are mentoring junior women. Our presiding judges, Mr Justice Dingemans and Mrs Justice May, are vocal supporters of Circuit initiatives and host events to foster a sense of community between junior and senior women at Bar and Bench and to highlight these issues. We are actively working to keep more women at the Bar. We have male and female Western Circuiteers involved in these initiatives. We don’t need to be any less collegiate, we just need to ensure that ours is a pack which actively condemns harassment.

Changing culture: an invitation to the Bar

Let us hope the tide is turning. It is fair to assume that what goes on in the Western Circuit goes on across the Bar, just as it goes on in many other industries. In the finest traditions of the Bar and Bench we should be standing up for those who are belittled or mistreated. Let’s not draw the battle lines between men and women: we do not seek to demonise the many honourable men at the Bar and Bench who are our colleagues, our mentors and our friends. None of us wants a culture of hypersensitivity, none of us wants men to speak differently when women come into the room, none of us wants to bypass due process. We all want to be able to tell young women barristers that the Bar is a profession which we can recommend without hesitation, and that if anything inappropriate happens to them the Bar will be on their side. We invite all barristers, male and female, to take the discussion seriously; to call out harassment and sexism and to actively consider what else they can do: we have made some suggestions above. It should be to our credit and not to our shame as a profession that we talk about this.

Contributors Selena Plowden and Kate Brunner QC, Western Circuit Women’s Forum

Call it out: what the Bar and Bench can do:

  • Check that your chambers’ harassment policy is in line with the Bar Council’s (soon to be updated) guidance. The Bar Council has new training available: email smercer@barcouncil.org.uk.
  • If you are a victim of harassment by another barrister or a witness to it, tell somebody. Call the confidential Bar Council helpline on 020 7611 1320 or email: equality@barcouncil.org.uk. You will be put through to Sam Mercer, Head of Policy, Equality & Diversity and CSR, or a member of the Bar Council’s Equality and Diversity team, who are responsible for issues including sexual harassment at the Bar. At no point will you be required to give your name or the name of your chambers.
  • Report the incident to the BSB (www.barstandardsboard.org.uk): see here for the obligation to report duty, and here for what will happen after a complaint is made.
  • If you are a victim of harassment by a judge or a witness to it report it to the Judicial Conduct Investigations Office.
  • If you are a victim to sexism falling short of harassment, call it out. If you are a witness, call it out.
  • Foster professional relationships amongst women at all levels of Bar and Bench. Support an existing group like the Western Circuit Women’s Forum, Temple Women’s Forum, Temple North Women’s Forum, Women in the Law UK, Association of Women Barristers, Behind the Gown, Association of Women Judges, or set up a group. We won’t need these groups when we achieve equality but in the meantime they ensure that younger women have confidantes and more senior women role models.
  • Vocally support the junior Bar. If you are a senior man or woman at the Bar or judiciary, let it be known you are alive to these issues.
  • Tell young barristers that we know what harassment looks like and will do our utmost to protect and support them. Build components on harassment into training wherever possible.
Category: 
Issue: 
Author details: 
Kate Brunner QC

Kate set up the Western Circuit Women’s Forum with other Circuiteers in 2015, to improve the retention and advancement of women on Circuit. She is a barrister at Albion Chambers in Bristol, practising in crime, fraud and regulatory law.

Selena Plowden

Selena Plowden is at Guildhall Chambers, Bristol. She specialises in catastrophic Clinical Negligence and Personal Injury claims and sits part time as a Mental Health Judge. Selena is on the steering committee for the Western Circuit Women’s Forum.