What happens to men who have caused harm to women?

A number of prominent Australian men – including Supreme Court judges – attended a recent launch of a book by supposedly “disgraced” former High Court judge Dyson Heydon. In 2020, Heydon was found by an independent High Court inquiry to have sexually harassed six young female associates. Heydon maintains his innocence.

Dyson Heydon has self-published a book on contract law. Credit: AAPIMAGE

None of this is any surprise. Donald Trump has been found guilty in a civil court of sexual misconduct, and was subsequently returned to the White House by voters. The longstanding myth that being accused of (or even found to have committed) sexual harassment ruins your career and life forever is being publicly and repeatedly debunked. This is a reminder that the people who subject others to sexual harassment or perpetrate sexual assault are often normal people embedded in and atop the fabric of our society, not outcast from it.

So, what do we actually want from men who have been found to have caused harm? Is it punishment, rehabilitation, or both? How do we measure what level of social ostracism it would take for them to not harm again? Should victim satisfaction or future behaviour be the focal point of these reflections?

Power and entitlement are the bedrock of all forms of sexual harassment and assault. Powerful people have access to subordinates and have seen institutions or circles they are part of routinely protect their own kind, while silencing victims. This creates a sense of legal and reputational immunity (one that is often proven correct), and contributes to levels of entitlement that manifest as their prerogative to the bodies of others.

One of the criminal justice system’s greatest failings in addressing sexual harm is its all-or-nothing approach – unable to reckon with the complexity of human experience and interpersonal harm. The criminal system was designed by men, for men, when sexual harm was an act of “damaging” another man’s “property”. We still lack a socially acceptable form of accountability outside the criminal system, a system many victims avoid, not just because of its traumatising process or the slim chance of a conviction, but because many do not want their perpetrators jailed, especially when they are friends, mentors or colleagues.

The problem here is that each victim will have their own threshold for what constitutes justice.

Some perpetrators face social consequences for their actions – terminated or forced resignations from positions, exclusion from parties, or reputational damage – but when you’re close to the harm, it feels irrelevant compared with the gravity of consequences for the victim.

Both things can be true: accountability can exist in public form (generally, men fear this), and yet this can feel painfully insufficient to those who bore the impact (generally, women resent this). However, it must not be forgotten that the question of accountability is only being explored at all because Heydon was found by a High Court inquiry to have committed the actions he was accused of. I wonder whether, had the standard of proof in this inquiry been “beyond reasonable doubt”, the women who spoke up would be branded as “attention-seeking liars”. The reality was the same, regardless, but the finding is what has shaped the public narrative.

A dilemma emerges when you consider that if all perpetrators of sexual harassment and assault (on the basis of reality, not a criminal finding) were completely rejected from society, carnage would ensue. Imagine they all disappeared at once. Public transport wouldn’t run, the sharemarket would crash, teachers and students would be missing from school en masse, and legal and political systems would face disaster as police, judges and politicians failed to show up to work.

This points to the real issue – systematic inconsistency and lack of consequences. The randomness of who experiences accountability and for how long erodes any sense of fairness or systemic change. (In fact, the only consistency in convictions of sexual assault is that brown, black and Asian men are more likely to be convicted than white men, and that women of colour are less likely than white women to achieve a guilty conviction.)

This speaks to a broader and troubling disconnect: legal justice may succeed in infrequent, isolated individual cases, but it rarely addresses the cultural and structural enablers of sexual violence, leaving social justice unattended to.

A full “cancellation” of another feels so extreme that we fear to bestow it on anyone, leading to denial or excuses as an alternative. Silence and complicity are systematic because of this. Judges know better than anyone the complexities behind punishment and accountability.

Ironically, it may take moments like this – where public figures who are supposed to embody justice show quiet allegiance to “disgraced” peers – for us as a society to reckon with what true accountability looks like, and when, how and if, ever, reintegration is earned.

Teach Us Consent has a new suite of federal government-funded consent education resources at teachusconsent.com/resources

Chanel Contos is founder and chief executive of Teach Us Consent and author of Consent Laid Bare. She is now a Governor Phillips Scholar at Oxford University, studying public policy.