This one's for those trying to derail the #MeToo movement by calling it ‘Trial by Media’

We spoke to some law makers and a sexual assault survivor to level the score. Because some folks still aren’t getting it.

By Angela Heathcote

Since the #MeToo movement first encouraged women to share their experiences of sexual harassment online (which they did in their droves!), various commentators have asked: have we gone too far? Should we be condemning men on Twitter who've not had a fair trial, so to speak?

Most have touted this need for due process and the capabilities of our court system to deliver justice to victims. Basically, they're worried some of the men who've been accused of sexual harassment or abuse could be innocent. But we're not convinced.

The Sex Discrimination Act outlawed sexual harassment in the workplace more than 30 years ago. It's broad definition, which encompasses everything from jokes about boobs or comments of a sexual nature, to criminal offenses such as sexual assault, make it an exhaustingly wide-ranging piece of legislation.

And just because the legal framework is there, it definitely doesn't mean it's being applied. We spoke to legal experts and a sexual assault survivor about the often baffling/ineffectual system.

Karen O'Connell, a senior lecture at the University of Technology's Law School spoke to Cosmo about the potential pitfalls of arguing there are already laws in place. "If women aren't believed when they make a complaint or there are hostile cultures around them that punish them for doing so, the laws are never going to have the desired effect," she says.

And trust us, the stats speak for themselves. A 2012 survey conducted by the Australian Humans Rights Commission found that a whopping one in four women had been sexually harassed at work in the past five years. In the last year, the Commission has received close to 250 complaints of sexual harassment, which is up 13 per cent from the previous reporting period. In short, sexual harassment is endemic in Australia's workforce.

Up until the #MeToo movement it was easy to ignore the larger forces at play that allow for sexual harassment to thrive in the workplace. Yes, many women continue to report instances of sexual harassment and yes, some of them are willing to take their harassers and liable employers all the way to court — and they have done for decades.

But sexual harassment in the workplace persists. If your reaction to the #MeToo movement is to refer women back to the laws and complaint processes that have not served real and lasting justice for several decades, then sorry, but you're still not getting it.

"If what they're saying is the public backlash is too strong, to me, that just means it's time to have a public debate about it. My primary concern is not that the movement has too much power, I don't think it's even hit it yet," says Karen.

The onus has always been on women

When the Sex Discrimination Act was introduced in 1984 there was an expectation that it would ignite a much bigger cultural change than it actually did.

"I think there was the sense that we had drawn the line in the sand and we had articulated that while this may be commonplace, it wasn't acceptable," the Sex Discrimination Commissioner Kate Jenkins tells Cosmo.

According to Kate, back in the 1980s the Commission got the legislation right, but what wasn't well understood were the different degrees of sexual harassment. She also believes that the #MeToo movement has exposed a number of flaws in the reporting process that disadvantage women.

"I think in some ways, from the 1980s up until the #MeToo movement there was a complacency and a sense that sexual harassment is only the really serious stuff and unwelcome sexual conduct on the lower end of the spectrum should just be tolerated."

This has led to what Kate refers to as a 'Rolls-Royce investigation process' where people think they have to wait until it's something really "serious" before you make a complaint, which has allowed "less severe" instances of sexual harassment to slip through the cracks entirely.

Much like today, where men are demanding that women follow the workplace and legal processes set out for them, we're once again putting the onus on women to clean up what is essentially their mess. And it's bloody exhausting.

"The Sex Discrimination Act requires the victim to enforce the laws," says Kate. "People thought that it would be empowering, but what we've seen overtime is that there are important reasons why that system isn't working very well.

"When we're not speaking up it's not because we don't know where to go, but because we know when we do we might not be believed, nothing will change, our reputations will be trashed, or our career might be stalled."

From a legal perspective, Karen says having to bring any kind of complaint forward; even something someone might consider small can be difficult.

"These small instances of sexual harassment accumulate. They create a more toxic atmosphere. The law makes it very hard to argue that because you have to argue each individual incident and it becomes a bit ridiculous in a way.

"The public debate around the #MeToo movement is distinct from law, we're analysing what is morally wrong and how we respond in a moral sense to these issues."

Innocent until proven guilty

The whole innocent until proven guilty principle is problematic because it requires us to assume victims are lying until proven honest, but that it isn't even applicable to most instances of sexual harassment, says Karen.

"Most of what people know about law is criminal law. They have this idea of innocent until proven guilty…that's a criminal idea; criminal standards are very tough to meet. Sexual harassment isn't a crime, unless it gets to the level of an assault."

Nina Funnell, a sexual assault survivor and journalist, is fed up with those who say the #MeToo movement doesn't deliver the same justice that workplace complaint processes and the court system can.

"The overwhelming majority of sexual assaults will not proceed to trial or court, let alone sexual harassment. A lot of the stuff men are being accused of is not necessarily even criminal. There isn't even a procedure to deal with it," she tells Cosmo.

"Some of the allegations around Weinstein are about crimes, but most of the #MeToo movement isn't about the criminal but what's unethical, insulting and degrading to women and women should be able to talk those things.

"This idea that women have to wait until they've passed through some archaic criminal justice process, which overwhelmingly does not deliver sufficient outcomes is all about silencing women and shutting down their ability to seek support."

Nina has gone through these processes herself and says that they are "limp, ineffective and re-traumatising."

"The nature of sexual assault and harassment is that it robs the person of power and control. Almost all of these processes actually further disempower women. They don't restore confidence of women.

"Being able to speak out publicly to the media about what happened to me was the thing that enabled me to reclaim a sense of control over the situation as well as some humanity, dignity and purpose.

Cultural change

That the conversation has gone from empowering women, to defending it against calls that the #MeToo movement has overreached is typical.

"Whenever women have asserted their rights historically there is always backlash, it's inevitable. This whole trial by media argument is predictable because it happens Every.Single.Time," says Nina.

"I think that response is born of a defensiveness that is all about trying to protect men and to minimise their responsibility, it's about giving them an out."

As the Sex Discrimination Commissioner, Kate has overseen plenty of sexual harassment complaints. Women are reluctant to make complaints, let alone have them escalated to the court system, she says.

In her opinion, to achieve the meaningful outcomes that not just women desire, but anyone who is the victim of sexual harassment at work desire, we need a social movement like #MeToo that makes it unacceptable from the outset.

"When both men and women have a complaint, they overwhelmingly say: 'I just want this to stop' and the other thing they say is: 'I don't want this to happen to anyone else.'"

And THAT's why #MeToo is so damn important.