Kevin Spacey’s lawyer argued that “Its not a crime to like sex, even if you are famous” in his closing address last week.  Spacey was in Court for the third time, accused of sexual misconduct and of abusing his position as a wealthy actor to coerce the men he allegedly assaulted.  His lawyer went on to accuse the men of making false accusations which he said are common when “fame and money and sex and secrets and shame and sexual confusion are all in the mix”.

In response the Prosecutor pointed to the “enormous imbalance of power” that existed in the relationship between Spacey and his accusers.  She said the case was about power and about taking advantage of that power.

Whilst this case is being tried as a criminal prosecution, similar themes arise in an employment context when a person in a position of power is alleged to have sexually harassed an employee.  It raises important issues as to what constitutes sexual harassment when the perpetrator claims that the relationship was consensual and may even genuinely believe that it was.

This issue was considered in depth in the defamation case involving Colin Craig and his former personal assistant and press secretary, Rachel MacGregor.  The proceedings were brought by Craig after the parties had entered into a confidential settlement of their employment issues. At a later media conference Craig claimed that he had “never sexually harassed anyone” and implied that MacGregor had made false allegations against him.

In considering whether Craig’s statements amounted to defamation, the Courts that heard the matter, through a number of appeals by Craig, were required to consider whether or not he had actually sexually harassed MacGregor.

In the High Court hearing, Justice Toogood spent some time defining what was and was not sexual harassment.  He described it as “intentional conduct or language of a sexual nature, in a workplace, professional or social setting, that is unwelcome, unwanted or offensive to the person who is subjected to it at the time it occurs”.

To amount to “sexual harassment” as it is defined in the Employment Relations Act and Human Rights Act, the conduct must also have a detrimental effect on the employee, which Justice Toogood said would include “detriment for the complainant in having to work in the strained, tense or demeaning atmosphere inevitably created by unwelcome sexual conduct or language”.

The conduct in question included Craig sending numerous letters, cards and texts, and making various statements to MacGregor, over a three year period. The Court found that one such letter in which Craig wrote about wanting to kiss MacGregor and having looked at her cleavage, and an election night incident where the two were intimate, did not constitute sexual harassment because MacGregor did not regard the behaviour as “unwelcome at the time”. 

However subsequent conduct between February 2012 and December 2014 was deemed to be sexual harassment as the Court accepted MacGregor’s evidence that Craig’s expressions of affection and sexual interest in her were unwelcome and that the power imbalance in the relationship meant that MacGregor “chose not to complain about the harassment because of concern about the effect of a complaint on her employment”. 

Justice Toogood also found that “where a complaint of sexual harassment involves an allegation of intentional sexualised conduct or language, and there is a power imbalance favouring the perpetrator over the recipient, it is reasonable to draw a rebuttable inference that the sexual conduct or language was unwelcome, whether the complainant objected at the time of the alleged harassment or not”.

Ultimately the High Court found that Craig’s conduct “was intentional, sexualised conduct directed at a workplace subordinate”. MacGregor was awarded $400 000 in damages, in what could be described as a complete own goal by Craig. 

Whilst the circumstances are different, the fundamental basis of the Spacey and Craig cases are similar – in short, two rich and powerful men abusing their privilege to take what they want.

The key take out is that where a power imbalance exists in an employment relationship, it is not uncommon for a victim to put up with being sexually harassed rather than risk losing their job.   This does not mean that all workplace relationships are abusive, but a person in a position of power should not take silence as consent.

This article was originally published on 26 July 2023