By: Kieran Pender
Kieran Pender is a Senior Legal Advisor at the International Bar Association. All opinions expressed in this piece are solely those of the author as an external expert and do not necessarily reflect the official position of UNODC.
On 6 January 2020, Harvey Weinstein walked into a New York courtroom to face five charges of rape and sexual assault. Three years since the #MeToo movement began, more and more people are speaking out about harassment and abuse. The legal profession is at the forefront of this evolving movement, inherently tasked with determining the scope of the law as it relates to bullying and sexual harassment.
Yet the legal profession itself is not immune from these concerns. In May 2019, the International Bar Association (IBA) published its landmark report "Us Too? Bullying and Sexual Harassment in the Legal Profession". The largest survey of its kind conducted by the legal profession, the report details the responses of almost 7,000 respondents from 135 countries. Respondents were predominately based in law firms (73%) and demographically approximately half of respondents were European. The results of the survey revealed that respondents had experienced bullying and sexual harassment; one in two women and one in three men surveyed described themselves as having been subject to bullying, while one in three women and one in fourteen men surveyed stated that they were subject to sexual harassment in the workplace.
The legal profession must uphold morality and integrity, so that it may advise upon and adjudicate cases of bullying and sexual harassment. 3% of respondents identified themselves as working in the judiciary itself, including as judges and administrative staff. These members of the judiciary revealed that 71% of women surveyed and 24% of men surveyed said they had been bullied. Their accounts of bullying included ridicule and demeaning language, undermining of work output, constant unproductive criticism and the misuse of power or position. One female respondent, who worked as a judicial clerk in the United States, reported being yelled at, demeaned and ridiculed by the judge supervising her.
The "Bangalore Principles of Judicial Conduct" recognize that the judiciary must act with moral authority, integrity and propriety and acknowledge that the personal conduct of individual judges affects public confidence and trust in the integrity and competence of the judicial system as a whole. While the Bangalore Principles do not specifically reference bullying, it is clear that inappropriate workplace behaviour by judges has serious integrity implications.
In addition to the instances with colleagues, bullying was also described as being rife in open court. According to the IBA's survey data, barristers and lawyers are 20% more likely than those in other legal fields to experience bullying from third parties, including from judges. Judges were frequently described by lawyers as rude, belittling and aggressive. Given the hierarchical nature of the judiciary and the inherent power imbalance in a courtroom, it is perhaps unsurprising that a bullying culture could develop.
Judicial workplaces could address these issues proactively by putting relevant policies in place, and running internal training to ensure that the vast majority of incidents are properly reported. Lack of reporting is often due to the profile or status of the perpetrator, followed by concerns about repercussions. Respondents at judicial workplaces were found to be the most likely, across the legal professions, to not report. Four in five respondents from the judiciary thought their workplace could do more to provide a safe and supportive workplace.
When bullying is reported, it can result in a negligible or insufficient response, including a lack of sanction or a response that in fact exacerbates the situation. Respondents who described experiences with bullying in the judiciary predominantly saw it as an unfortunate, but inevitable, part of the job.
In addition to the moral obligation to eliminate inappropriate workplace behaviour, there is also an efficiency case for doing so. Research shows that bullying seriously affects mental health and productivity, with many of those affected choosing to leave the profession entirely. In many countries, the behaviour of senior members of the profession is held to a higher standard, as it impacts their juniors, who might be expected to emulate them. Bullying and harassment by judges can also have serious consequences for public perception of the integrity and authority of the profession as a whole. As the number of #MeToo cases being tried in the courts increases, and the global legal profession confronts the pervasive nature of bullying and sexual harassment in society, the judiciary should be at the forefront of reform.