Comment: The professor's secret - how one man harassed a woman and kept his name hidden

The #metoo movement has been stymied in New Zealand by strong defamation laws and a system that has secrecy at its centre. Photo / 123rf

COMMENT:

The professor came up behind her while she was making a cup of tea and pinned her against the kitchen cabinet with his body. He put his hands on her shoulders. She couldn't move.

It wasn't the first time he'd touched her. He'd put his arm around her. Hugged her, close. Kissed her on the cheek. She didn't like any of it but no one else seemed bothered by the behaviour, so she kept quiet. It was the kitchen incident that prompted the formal complaint about inappropriate touching.

Both parties were employed by the same university, the professor holding a powerful position and the woman a junior one. When the university investigated the complaint, it was - apparently - upheld. Regardless, the man kept his job and nothing was ever made public. A few months later he moved on. It is unclear if his new employer was made aware of the sexual harassment complaint.

Secrecy is always the default

In mid-2018 I heard the story above. As a reporter, I wanted to know more. What happened after the complaint was made? Was he held accountable in some way? If other people had seen previous, similar behaviour (which at least five people later confirmed to me they had) why was nothing done sooner? And most importantly, could we name him in a story so other women - particularly young students - had access to information that could be important for their safety?

My first move was to contact the complainant. She did not want to be involved in a story or provide any documentation, for personal reasons. But she said, surely you can look into it in another way?

What happened next is just one issue among many in the way we deal with sexual harassment in workplaces across New Zealand. In some cases, employers refuse to investigate. They almost never act without a formal complaint. And if there is an investigation, the allegations are almost never established, even if there's multiple complainants - as the Labour sexual assault review showed this week.

In this case, however, the main problem was the secrecy.

For more than a year I tried to get the answers to four questions:

• was there a complaint?
• what was the nature of the complaint?
• was it upheld?
• what was the outcome for the staff member if it was upheld?

I have only ever received an answer to the first question: Yes. Otherwise, I was stymied at every step, by processes that now seem a default in our system.

Not in the public interest - Ombudsman

First, the university argued it would not release the information to protect both the complainant's privacy, and that of the accused staff member. There was an expectation, it said that a complaint would be confidential. Any information provided could lead to those involved being identified.

Secondly, it said, it believed disclosing the information would have a "chilling effect" on the willingness of other complainants to bring forward similar matters in future.

"[The university] considers that it is very important to ensure that complainants can come forward, with sensitive matters, with the confidence that the detail of what they raise, and the processes and outcomes which follow are not going to be bringing them into the public eye," it said.

I sent the matter to the Ombudsman, the agency which handles complaints about Official Information Requests, saying I believed the information was in the public interest. What about the safety of other women?

The Ombudsman took a year to investigate, sending the matter to the Privacy Commissioner for his opinion before making a draft decision: the university had been right.

There was a high privacy interest, it said. And it was not outweighed by the public interest in the matter. It also clarified that public interest doesn't mean "interesting" it means "of public concern".

A recurring pattern

In my opinion, I thought a powerful man harassing women junior to him was a concern. But it turns out the system says I am wrong. I have tried - so far without success - to have the complaint reopened. I have tried to find out what happened through other avenues, also without success.

I have resisted the urge to plead with the complainant to give me her paperwork - so we could publish the staff member's name or at least his employer's details without the risk of defamation - because I don't believe the burden should be hers to shoulder alone.

Employment lawyer Steph Dyhrberg said the same problems occured in almost every case.

"Both privacy rights and employment obligations protect perpetrators, if the complainant is not prepared to go public," she said. "The threat of defamation law is often used to silence people too."

Other journalists know this. The burden of proof for any story with a sexual allegation is instantly higher. That is why - despite the #metoo movement - we see so few cases made public.

Former lawyer Olivia Wensley, who campaigns for an end to sexul harassment, said she believed the system needed to change - that the university logic around privacy was flawed.

"It should be public exactly so more women will come forward. We know that women don't report sexual harassment because they think it's hopeless," she said. "If they heard a complaint was upheld and it went on the perpetrator's record they might feel differently."

Wensley said she felt organisations were acting not in the complainants' interests, but their own.

"By doing this they're prioritising the perpetrator's reputation over the safety of victims," she said. "But it's simple - if you don't want a bad reputation don't harass people."

Is this the system we want?

What the Ombudsman failed to take into account, from my perspective, was that we would never have named the complainant. Media don't name victims in sex cases by rote.

Equally, the complainant in this case didn't tell me not to write a story, only that she couldn't help. In fact I know when other media made information requests, she told the university not to use her privacy as a reason for declining them - as long as she wasn't identified. But the Ombudsman didn't ask for her thoughts.

They also didn't approach the professor. But surely, this decision is in his favour.

What I still don't know is how he would have responded if such complaints were made public automatically. Would he have fought the initial allegation much harder? Would that make it worse for the victim? Is that what we want? I can't answer that, but I think we need to talk about it, at the very least.

As it stands, however, I don't think we've seen justice done. His new colleagues know nothing of his history, as far as I understand. He didn't have to undergo training, and he wasn't placed on any kind of supervision. And I can't feel confident that - whether this man or otherwise - the university has taken steps to ensure it won't happen again.