Craig ruling is win for women
A month ago Rachel MacGregor stood in the High Court witness box and turned her back to the man who was cross-examining her – the same man who sexually harassed her – and answered former Conservative Party leader Colin Craig’s questions as best she could.
Her composure did not crack until right at the end of what was a gruelling couple of weeks in court, and the public supported her with their words and their wallets, raising more than $50,000 towards the legal fees she couldn’t possibly afford.
I have to make it clear right here that I am on a trust set up to help Rachel raise that money.
I can also with confidence say ‘‘the man who sexually harassed her’’, thanks to the decision released yesterday in an entirely different case.
In his ruling as to whether blogger Cameron Slater defamed Craig, Justice Toogood found that Craig certainly did sexually harass MacGregor – but his decision could have far greater impact for many more people.
Justice Toogood is saying that if, as an employer, you think you can go around doing the kind of stuff Craig did to MacGregor, the court will assume it’s unwelcome. That will be the baseline assumption.
Instead of the victim having to prove your attention was unwelcome, you will have to prove that it was not.
That is, of course, simplifying things – Justice Toogood’s decision is hundreds of pages long and makes for difficult reading at times, particularly if you’re squeamish or easily embarrassed.
It describes a murky situation where lines were crossed by both players, and where Craig’s attention was welcomed before election day 2011 – but not afterwards.
It acknowledges the complexity of the situation, yet finds MacGregor was harassed, and has since been dragged through the courts against her will on multiple occasions.
More importantly (no offence to MacGregor), the judgment makes some powerful statements about how the courts will view sexual harassment in the future. This should give New Zealand women a tiny warm glow in the midst of the scorched-earth landscape in which survivors of sexual harassment are often left.
It talks about the power imbalance – Craig as the wealthy employer and MacGregor as the much younger employee – and how it’s reasonable to infer the sexual conduct or language was unwelcome, ‘‘whether the complainant objected at the time of the alleged harassment or not’’.
It answers that old chestnut, ‘‘why didn’t she complain before now?’’ Justice Toogood accepts MacGregor could not have been expected to do that, as she feared for her job.
What does all this mean? Few victims of sexual harassment ever bring their cases as far as the courts. Few can afford to do that (MacGregor would not have gone to court unless she had to). This is why there’s such precious little case law in New Zealand to refer to.
So Justice Toogood’s decision means that hopefully, judges in future cases will use the same baseline. Hopefully, anyone who harasses a co-worker or employee – will think twice before they do so. If you are sending these things, saying these things, to an employee then the onus on you to make sure they are welcome.
And under section 62 of the Human Rights Act, the provisions are the same – comments or actions of a sexual nature, if unwelcome and detrimental, are against the law.