The regulator is right to reject calls for leniency over sexual misconduct
Following the end of the first consultation on professional misconduct - of note, were mixed responses to BTAS’ proposal to impose 12-month minimum suspensions for all sexual misconduct:
‘While a starting point of 12-months’ suspension was widely accepted and welcomed … some respondents – including Inner Temple and Gray’s Inn – felt that this starting point would be disproportionate for some less serious types of misconduct… This could include, for example, telling a crude joke, wolf-whistling, sending a message of a sexual nature on social media, or consensual sexual activity with a partner in a public place.’
‘One respondent felt that setting a high starting point of 12 months’ suspension for all cases involving misconduct of a sexual nature was “virtue signalling” – they stressed that the sanction imposed…must be warranted on the facts of the misconduct, rather than being used to send a signal to the public.’
Further, ‘Inner Temple said that “suspending a barrister has an impact not only on the barrister, but also their clients” and “there are likely to be more appropriate and proportionate ways of dealing with cases at the bottom end of the spectrum of seriousness”.
Steadfast, the BSB did not ‘agree that what is termed “low level” misconduct in some of the responses should attract lesser sanctions. … If conduct falling within these Groups has reached this stage of the disciplinary process, then our view remains that it should attract a serious sanction if public trust and confidence in the profession is to be maintained.’
The regulator’s response is encouraging — as is the fact that 41 individuals and groups contributed to the debate.
But the responses also serve as a reminder of a cultural chasm that exists between those who support robust sanctioning and those who do not. The views above impliedly place victim impact secondary and betray little sympathy for the connection between ‘low level’ sexual misconduct and progression to sexual assault or worse. For it is the casual ‘telling a crude joke’ and ‘everyday’ sexism that licenses further abuse of power: a gateway to more extreme behaviours[1]. That ‘wolf-whistling’ and crude jokes are used to support leniency signals how normalised this behaviour has become.
But, (and this is the key), there is little to distinguish the attitudes driving ‘wolf-whistling’ and crude jokes (of which women are essentially the butt), and sexual assault and sexual harassment. Each involve degrees of male entitlement, dominance, and assertion of power over women. Lesser sanctions trivialise these incidents - diminishing them as ‘one-offs - when in reality they are warning signals. News reports, countless cases of violence against women, provide salutary warnings against dismissing ‘low-level’ sexual misconduct.
Despite clarion calls for change (industry wide, not just the Bar), the self-employed Bar remains vulnerable to abuse of power. Barristers work alone; few female QC’s level the gender imbalance in the senior ranks; there is an absence of day-to-day visible regulation and patronage enables juniors to ‘get on’. The regulator with the capacity to restrict an individual’s practice is a powerful equaliser in the profession. Robust sanctioning - as suspension is - catalyses change. Blanket suspensions stymie extreme sexual wrongdoing and urge greater caution around all daily professional interactions. Blanket suspensions target the ‘low level’ and worse: zero tolerance in practice. Rallying against caution only reflects fears over loss of privilege. But levelling up is long overdue.
The criticism of the proposal signals the impact suspension is already having. Some may reject it, some may think it disproportionate. But engaging with it, thinking on it, and questioning it is progression in itself. And that is reason to reject anything less.
[1] Everyone’s Invited