Issues such as provocation, spontaneity and whether an incident was a ‘one-off’ should not be factors that reduce sanctions for sexual misconduct by barristers, the Bar Council has urged.
This would send the “wrong message to the general public” about the profession’s attitude to such behaviour, it said.
The Bar Council also said free speech should be a mitigating factor when it came to misconduct on social media.
In response to the Bar Standards Board and Bar Tribunals & Adjudication Service consultation on revised sanctions guidance, which closed last week, it said: “The Bar Council believes that the incidence of sexual harassment is higher than the number of cases that are brought.
“Many women who have experienced sexual harassment at the Bar will be influenced by the degree of damage that they perceive a report may do to their career and will also be influenced by the kinds of sanctions that are given out if a report is made.
“Barristers tend to be very pragmatic people and therefore will consider that if there are insignificant sanctions given where a report is made that it is probably not worth making the report in the first place.”
The response argued that being an ‘isolated incident of short duration with low risk of repetition’ – while relevant to determining the degree of initial culpability – should not be listed as a mitigating factor.
“We consider that this would send entirely the wrong message to the general public about how the profession and the regulator regards incidences of sexual harassment.”
It may also be that other victims have simply not reported.
The response said the aggravating factor of behaviour that resulted in a criminal conviction or court order should not apply to sexual assault or harassment given the many reasons why victims do not go to the police.
The response expressed concern too about including whether the conduct was planned or spontaneous as a factor to assess the seriousness of the misconduct in the context of sexual cases – as it could suggest to some decision-makers that spontaneous misconduct was less serious – and the role of provocation as a factor.
“In the context of harassment and in particular in the context of sexual harassment, there is a real risk that this may give rise to attempts by respondents to blame the person who has received the harassment for in some way contributing to the misconduct.
“In the context of sexual harassment, in particular, it is difficult to reconcile entirely this factor to the concerns that have been expressed by the general public in many different ways about situations in which women who have experienced sexual harassment have been blamed for, in some way, encouraging it.”
The perpetrator giving an “immediate apology” might also not be the mitigating factor the proposed guidance suggested, the Bar Council said.
It could be seen as “a purely formalistic matter” and disciplinary panels should consider how genuine an apology was.
“One aspect of harassment, and particularly sexual harassment, which renders it difficult for the person experiencing it, is the way in which a perpetrator can distance themselves from their own actions either by referring to the conduct as ‘banter’ or by doing something and then immediately apologising.”
When it came to social media, the Bar Council recommended adding as a mitigating factor “the public interest in freedom of expression and the right to receive and impart information, including whether the material highlighted is a matter of public interest”.
This took into account article 10 of the European Convention on Human Rights. “As such matters may be highly complex, sensitive and contentious, specific guidance should address how such matters should be approached and the balancing of competing rights,” the response added.