Has social media changed the way we think about sexual harassment?

Disgraced Harvey Weinstein with Madonna, left, and Gwyneth Paltrow.

Me too. Two little words loaded with the weight of one of society's darkest problems. Over the past few weeks they've become something of a battle cry. For victims of sexual harassment and assault, they have made possible a conversation that has been unthinkable until now.

It's hard to imagine, in the time before social media, millions of people coming forward in the space of a week to share the intensely personal revelation that they had been sexually harassed or assaulted. Such a thing, pre-Twitter and Facebook, would simply never have happened.

And yet, in our hyper-connected age, it did. Thanks - backhandedly - to Harvey Weinstein.

Allegations of abusive behaviour by the powerful Hollywood mogul reported primarily by the New York Times and the New Yorker gave rise to a global outpouring of solidarity. The idea that Weinstein could allegedly harass and sexually assault dozens of women over the course of decades - and get away with it - caused shockwaves to reverberate around the planet. That some of his alleged victims, such as Angelina Jolie and Gwyneth Paltrow, were famous and powerful themselves made the case even more astounding.

Although, of course, neither Jolie nor Paltrow sat anywhere near the top of the food chain when Weinstein targeted them.

Perhaps the most interesting aspect of the Weinstein scandal happened outside of Hollywood, however, when ordinary people took to social media to say "me too". To date, more than 4.7 million people have engaged with the #MeToo conversation on Facebook alone. The trend, originally started by American women's advocate Tarana Burke in 2006, and propelled into the global spotlight by actor Alyssa Milano, has allowed survivors to find strength in numbers.

It has also provided an insight into what many women particularly already knew intimately: that sexual abuse is still an enormous problem.

It is a problem that has remained stubbornly hidden. Dr Jackie Blue, the Equal Employment Opportunities Commissioner, says that sexual harassment is a problem in New Zealand, and that there are many reasons why victims don't come forward. "Fear of retaliation, a lack of support in their workplace, self-minimisation of the harassment or concern that they will not be believed if they speak up," all play a role, she says. "Sadly, these factors contribute to sexual harassment in New Zealand going largely unreported."

The Human Rights Commission is one of the organisations in New Zealand that handles sexual harassment claims. It deals with between 60 and 70 cases nationally per year. That number likely should be much higher. The #MeToo hashtag is "a firm reminder that we all need to do more to ensure that anyone, in any environment, will be safe and supported if they report sexual harassment," Blue says.

That we're talking about the issue at all reflects an important moment of social awakening. Although #MeToo may encourage more victims/survivors of sexual harassment and violence to come forward, it may also have the effect of encouraging people to consider their own behaviour. Dr Pani Farvid, a senior lecturer in Psychology at AUT thinks that the impact of #MeToo will be multi-faceted.

"I think [the #MeToo movement] gives survivors a voice, and a space to create solidarity and/or facilitate social change. It can allow perpetrators to see how their actions might affect others and rethink their behaviour. In addition, it might offer a chance for people who may have 'unknowingly' engaged in coercive, sexist or harassment type behaviour to question the social norms that allow such treatment of women and other sexual or gender minorities."

Blue agrees. "Perpetrators need to know their behaviour won't be accepted or ignored."

When it comes to inappropriate behaviour in the workplace, lewd comments and inappropriate requests are just the tip of the iceberg. As the Weinstein allegations demonstrated, sexual harassment ranges from verbal vileness to sexual assault. Although harassment may be dealt with by the Human Rights Commission (and the Ministry of Business, Innovation and Enterprise, which also handles sexual harassment cases), behaviour that goes beyond inappropriate comments may also carry criminal charges.

If reporting sexual harassment is difficult for victims, however, reporting sexual assault brings with it a whole new level of challenges.

Might the #MeToo trend signify some kind of failure of our justice system? Maybe.

The police take sexual assault allegations very seriously, Detective Inspector Dave Kirby, manager of the Adult Sexual Assault and Child Protection team, says. Yet the Ministry of Justice has long estimated that less than 10 per cent of sexual offences are reported to police.

Criminal defence barrister Annabel Cresswell says that tallies with her professional experience. "Many women don't want to go to the police for all the usual reasons; shame, embarrassment, misplaced guilt, and the sense that being a victim of sexual offending will forevermore be how they are defined if they make their allegation formal."

Kirby says: "We know that sexual assault is grossly under-reported for a number of reasons, such as fear of the process or not knowing what will happen. That's why police recently released a series of videos about reporting sexual assault to help victims to navigate the procedure. Police are aware of the #MeToo movement, and Kirby says that it's great to see survivors speaking out against sexual violence. "However, anyone who has been a victim of crime is encouraged to report that to the police."

If there's one thing that seems clear, however, despite the best efforts of police, it's that the criminal justice system is an imperfect avenue for many victims. "The criminal court system is defendant focused," Cresswell says. "It has always been my view that survivors should not hope that the court will heal them or give them an outlet which is recovery focused, although of course, it may aid in recovery. Other avenues should be - and are - offered to assist victims where it is entirely victim focused."

Reporting sexual offences requires victims to enter a system that can be harsh and traumatising. "It's easier to semi-anonymously post about your experiences online than it is to sit in a police station being questioned, followed by invasive medical swabs being taken, then months later sitting in a witness box answering question after question about some of the worst moments of your life," Cresswell says.

Using social media instead may provide survivors with a better outlet. "Saying 'me too' online is not quite so lonely and scary or invasive as the process of going through the court system. #MeToo is all about raising awareness of how often women have to face unwanted sexual attention and assault," Cresswell says. "If names aren't used, I can't see the harm in raising awareness in this way. So #MeToo."

Human rights advocate Marianne Elliott was one of those who joined the #MeToo conversation online, sharing a range of experiences in a post on her Facebook page. "I think it's actually so pervasive," she said, about her decision to share her story. "There's nothing in my account isn't shared by almost every woman I know."

She felt a combination of "deep sadness" and "anger" as she saw more and more of her female friends sharing their own stories. But, she says, the experience was also empowering.

"It certainly made me feel connected to a lot of women, and there's power in that. I think there was something empowering for me in claiming the full spectrum of those experiences that I wrote about as all being problematic, because it's easy to go 'okay there's that time when I was physically assaulted and that's bad, that's serious, or the times when I had actual violent threats, but you know those times when guys in the workplace flirted inappropriately or sent gifts that weren't being reciprocated', actually that's part of the same spectrum."

On social media, survivors have found a voice that has traditionally been out of reach. In this digital age, everyone with an internet connection is a broadcaster. Until fairly recently, the ability to share news, views and even accusations has been the exclusive domain of the media, and the media has long been wary of defamation action.

Senior litigator and special counsel William Akel, who has been involved with many high profile defamation cases, describes the impact of defamation laws on media organisations as "the chill effect". Defamation laws contribute to the silencing of victims, Akel believes, because "any broadcaster or publisher will be concerned that if they run a major story they will be sued and may be held liable for big damages."

The Weinstein case was catapulted into the public conversation by the traditional media, led by investigative journalism by the Times, but reporting on sexual harassment allegations is a time-consuming and resource-heavy task that may not be available to ordinary people whose abusers aren't Hollywood heavyweights.

The media remains an important vehicle for holding power to account, but survivors posting on social media have demonstrated that sidestepping the old system can be effective too. What some of them may not realise is that their tweets and Facebook posts are not without risk. By publishing their stories online, they too face the risk of being sued for defamation.

"The same [chill effect] would apply, I imagine, to any woman," Akel says, "for fear that if they do make an allegation [they may be] put through a legal process where they have to justify the truth of what has been said. And there's also the human element. Do people want to be put through a legal process that can be very demanding, emotionally and financially?"

That risk becomes significantly higher when alleged perpetrators are identified. Whereas the vast majority of social media posts carrying the #MeToo tag have featured accounts of sexual violence committed by anonymous perpetrators, some survivors have gone a step further, and named those who allegedly victimised them.

It's that extra step that concerns the legal community. "The victim can be liable if they name or give enough particulars that lead to the identification of an alleged perpetrator. If an allegation was made of sexual harassment or assault online the victim would have to prove the truth of that allegation." Akel says.

Another aspect of the legal system that plays a role in silencing victims is the use of non-disclosure agreements. It has been reported that Weinstein, former Fox News host Bill O'Reilly and actor Bill Cosby all entered into non-disclosure agreements with women who had accused them of sexual harassment or assault, sometimes paying millions to gag their accusers.

Are non-disclosure agreements legal if they cover up crimes? "I would think not," says Akel. "I would think that the legality of them could certainly be tested. You can't really contract out of a crime."

Akel also has doubts about the enforceability of such agreements. "I don't think a victim would have to pay back [money received under an agreement] anyway because if [they] went to the media and said 'here is a story', it's unlikely that any perpetrator would take action to recover the money because you're just creating a bigger firestorm."

Does the legal system protect bullies? "No, I think that's going too far. The legal system doesn't protect bullies. Or, more correctly, it should not protect bullies."

Outside the civil justice sphere, naming alleged perpetrators could also have an impact on criminal proceedings.

"Some defence lawyers will look online to see if the complainant in a rape case has posted anything that might assist the defence case. This is most likely to arise where the complainant says something inconsistent with her allegation to the police. Additionally, posting about abuse online may provide the defence with an opportunity to suggest a motive to lie; that is, to seek attention from others on social media and to gain sympathy."

Whereas #MeToo may have ripped the rug back to expose an ugly issue, victims still face an uphill struggle to bring perpetrators to justice. This adds strength to calls for the continuation of the movement.

The next steps for the #MeToo effort are unclear. One key takeaway from the recent outpouring, however, is that victims speaking up together can have a powerful impact. "The #MeToo hashtag has shown that not only is sexual harassment still a widespread issue throughout New Zealand and internationally, but also that there is great security, support and safety in numbers," Blue says.

Akel believes victims could work together to bring a shared abuser to justice, "but even then, each individual will have to prove their case". He also believes that legislative change may lessen the fear victims feel in coming forward. "If the law changed to get rid of damages and if there was a greater liberalisation of our qualified privilege defence to make it a public interest defence so long as a publisher acted responsibly, then in those circumstances people may be more willing to come forward."

Legislative change may be a lofty goal but the high number of assaults that go unreported suggest that it deserves consideration, not only in the civil space, but also in the criminal justice system.

But more importantly, it's clear that society has to change. "Mass awareness and behaviour change is key," Farvid says. "From a social psychological point of view, any form of sexual harassment needs to become totally socially unacceptable for it to stop."

Social media has thrown the conversation wide open. It's up to society to decide whether it will listen.