How to mishandle a workplace sexual assault scandal

Note: this story discusses sexual assault.

A young female employee was found, semi-clothed and not well, in a secure part of her employer’s premises where she should not have been. This is not a hypothetical.

We are learning by the hour, as is the employee Brittany Higgins, more and more about what her employer did next. Putting aside the increasingly fevered politics of this exploding scandal, it is appropriate to examine what was done, and compare it to what should have been. Any employer or institution can easily find itself in the same situation and should know how to respond.

Even before an allegation of sexual assault was made, there was more than enough cause for extreme alarm. When the allegation was added, that alarm should have gone to DEFCON 1.

The employer in question was, technically, the minister for whom Higgins worked, Defence Minister Linda Reynolds. However, the executive federal government — led by the prime minister and encompassing the ministry, public service and parliamentary staff — should from the perspective of legal responsibility treat itself as a single institution with an absolute duty of care to all who work within it.

Upon discovery of an employee in a potentially compromised state, in the context of a serious security breach, the very first priorities should have been dual: to ensure and protect her safety and wellbeing; and to preserve the evidence. Until more was known, the minister’s office should have been quarantined and sealed. Medical attention should have been provided and reassurance given. The matter should have been escalated to the minister, at least, immediately.

After Higgins reported that she had been raped, the first two priorities should have been maintained and enhanced. And they should have been joined by the next essential step: an investigation of the allegation. There is no workplace incident more serious than sexual violence, and the highest degree of intervention is required. Procedural fairness is essential, for all parties, and should in such a case mandate external, independent conduct of the investigation.

The investigation would result in findings, which must then be acted on. This is strictly within the context of the relevant employment relationships and the employer’s obligation to ensure that its workplace is safe. It says nothing about the allegation as a crime.

The employer must do everything required to provide its employees with guaranteed safety, both in general and specifically with regard to the complainant. The seriousness of the alleged crime would necessitate that the matter be escalated to the most senior person in the organisation: the prime minister.

Critically, at every stage, the safety, wellbeing and interests of the alleged victim must be championed as the first and highest priority.

There is then the question of the alleged act itself, which is of course an extremely serious crime. The victim had the right to make and pursue a police complaint, and the right not to do so. The employer should have ensured that its employee was fully aware of her rights (and fully informed of the facts known to the employer), and was confident of the employer’s unqualified support.

There must be no coercion, explicit or implicit, to remain silent or to act in anyone’s interest apart from the victim’s own.

Finally, if following its investigation the employer’s conclusion is that a serious crime did occur in its workplace (on the balance of probabilities), then it had to consider from the perspective of its over-arching responsibilities what it should do about that.

I do not see how, regardless of the choice exercised by the victim, an employer in that situation could do otherwise than report the matter to the police of its own volition. It’s not something you can just pretend didn’t happen. The obligation is moral.

That is what should have happened in the case of Brittany Higgins.

What did happen was that no steps were taken to ensure her physical and mental wellbeing; her safety was not prioritised or protected; she was bullied into silence; the crime scene, far from being preserved, was washed clean with suspicious haste; the alleged perpetrator was quietly removed; no investigation with any remote level of procedural regularity or integrity was conducted; critical evidence was withheld from the victim; and the whole thing was — evidently — actively covered up.

All of that is derived from what has been revealed so far. There will be more, and worse, to come.

Few institutions handle sexual assault incidents well. Not many would handle them worse than the Morrison government has handled this one.

If you or someone you know is impacted by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au.