“Being Passed off as Wicked Witches, That’s a Bit Much!” When the Victims Become the Defendants
This is part of our special feature, Me Who? The Audibility of a Social Movement.
In April 2019, two court decisions in high-profile cases of litigation against accusers of sexual harassment were handed down within roughly a week of each other: one in Australia, one in France, with completely opposite outcomes. Some five months later, another French decision in the country’s second major “revenge litigation” case went in the opposite direction from the first. This article examines why these divergent verdicts occurred. In doing so, it provides critical analysis of the use of revenge litigation by men accused of sexual harassment and the implications of the use of this litigation as a political and legal strategy for the long-term success or otherwise of feminist campaigns against sexual harassment.
In Australia, the year 2018 saw what journalist Richard Ackland described as “an asphyxiating vortex of litigation” (Ackland 2018), the most internationally high-profile element of that vortex being the defamation suit brought by actor Geoffrey Rush against The Daily Telegraph. The tabloid, owned by NewsCorp (the Murdoch media empire), had published allegations of sexual harassment against Rush in late 2017. On April 11, 2019, the Federal Court in Sydney awarded Rush AU$850,000 in damages; he was subsequently awarded an additional AU$2 million for past and future lost earnings.
Eight days later in Paris, Denis Baupin, a former prominent French Greens politician, lost his defamation case against the women in his party who had publicly accused him of sexual harassment in May 2016 (although the events went back some years previously)—thus before the #MeToo wave—and against press publishing the allegations. Not only did he lose, but he was judged for abuse of process and ordered to pay €500 in damages to each of the women against whom he had brought his defamation suit.
However, on September 25 in the same city, a very different verdict was handed down. Sandra Muller, who launched what has been dubbed the “French #Metoo”: #balancetonporc, was ordered to pay her alleged harasser, Eric Brion, €15,000 in compensation for “pain and suffering” (préjudice moral), and an additional €5,000 in court costs. Admittedly, €15,000 is chicken feed beside the amounts awarded to Geoffrey Rush, but in the French context, it is significant—all the more so because of the very high profile of Muller, of her #balancetonporc campaign, which resonated with French women in similar ways to the way #Metoo had in the Anglosphere, but which had also sparked a peculiarly French controversy, for reasons I will explain presently. In this article, I will examine these contrasting verdicts, focusing in particular on the legal and political frameworks in which they were handed down, and the questions they—and the revenge litigation engaged in by the alleged harassers—raise for both the protection of women against harassment and bullying and for freedom of speech.
The French and Australian legal contexts
Australia was the second country in the world, after the US, to legislate on sexual harassment, in its 1984 Sex Discrimination Act. The Act contains a comprehensive definition of sexual harassment, albeit one limited to workplace harassment. In France, the first law on sexual harassment was adopted in 1992, following years of feminist lobbying and “taboo-breaking” (Cromer 1995), and with the support of women in government, notably Yvette Roudy, who had been the first Women’s Rights Minister in the 1980s, and who as a Socialist deputy in the National Assembly introduced the first law on sexual harassment, with the support of Véronique Neiertz, then Secrétaire d’Etat aux droits des femmes et à la consommation (Loi nº 92-1179 du 2 novembre 1992 relative à l’abus d’autorité en matière sexuelle dans les relations de travail et modifiant le code du travail et le code de procédure pénale: Journal Officiel n°257 du 4 novembre 1992,15255). This law, however, was highly restrictive: sexual harassment was only recognized if it was perpetrated by a person more senior in the workplace hierarchy, and only if it was perpetrated with the aim of obtaining “sexual favours” (see the critique published by the Association européenne contre les Violences faites aux Femmes au Travail [AVFT], 1992).
This law was revised in 2012 in the wake of the so-called “Affaire DSK” (concerning an accusation of rape of a hotel worker in New York by then IMF leader and French presidential hopeful Dominique Strauss-Kahn) and following the election of François Hollande to the presidency. The change was not, however, directly sparked by the DSK Affair and the accompanying wave of feminist outcry, but by the Constitutional Council having repealed the 1992 law. A “Priority Constitutionality Question” had been registered with the Council by the defence lawyers of one Gérard Ducray, then sixty-nine years old, former Deputy in the National Assembly and former State Secretary for tourism during the presidency of Giscard d’Estaing. In March 2011, Ducray had been sentenced by the Lyon appeals court to a suspended prison term of three months and a €5,000 fine for sexual harassment of three female civil servants. The lawyers argued that the 1992 law was too vague in its definition of sexual harassment, leaving the way open to overinterpretations of all sorts. The Constitutional Council agreed, stating that the elements constituting the offence of sexual harassment were not sufficiently defined in Article 222-33 of the Penal Code, and overturned the law. New Women’s Rights Minister Najat Vallaud-Belkacem and Justice Minister Christiane Taubira drafted a much-improved law in consultation with feminists (Loi n° 2012-954 du 6 août 2012 relative au harcèlement sexuel; Journal Officiel n°0182 du 7 août 2012, 12921). That law, which remains in force, more closely resembles existing law in countries such as Australia and aligns with EU definitions and directives.
This difficult history of the French legislation is indicative of the uphill battle that the issue of sexual harassment has been, and continues to be, in that country—as it has been more broadly in the EU for that matter, with a number of EU member states having limited laws or even no specific law at all, although the #MeToo wave has prompted some changes there.
In Australia, where defamation law is based on the British model, the burden of proof is on the publisher of the allegations, which must demonstrate their veracity. This framework makes defamation lawsuits much easier to win in Australia than in the US or France, where the notion of defamation is tied to the law on freedom of the press, and the burden of proof of defamation thus lies with the plaintiff. Even in the UK, the defamation law was reformed in 2013 to provide greater protections for freedom of speech and the press, in line with freedom of speech rights guaranteed under the 1998 Human Rights Act (although the latter are nonetheless limited by protection of the “reputation of others” [Article 10, para. 2]). Unfortunately, Australia has not followed suit and retains “among the most stringent” defamation laws in the world (UTS Centre for Social Justice 2018). Moreover, unlike the other Western Anglosphere countries, unlike France and unlike the EU, Australia has no constitutional bill of rights or human rights legislation explicitly protecting freedom of speech and prohibiting government from restricting it through legislation or other measures. In their discussion of these laws, a number of commentators have suggested that the threat of defamation lawsuits has frightened women into remaining silent on sexual harassment (e.g. Price 2018; UTS Centre for Social Justice 2018). In France, by contrast, freedom of the press is protected by an 1881 law and freedom of expression is protected by the Constitution. Although the 1881 law also penalizes defamation, it provides for two important defences against allegations of defamation, the first being that the published material is true and the second being that it was published in good faith.
The differences in the law and the stronger protections of freedom of speech in France also mean that when damages are awarded in the case of defamation being proven, they are much lower than in Australia, so bringing a defamation lawsuit is less financially advantageous. However, this financial disadvantage does not stop alleged harassers trying, as we will see in the following sections
The #Metoo/#balancetonporc effect in the media and politics
The French version of the #MetToo campaign was launched by then New York-based journalist Sandra Muller’s Tweet “#balancetonporc !! toi aussi raconte en donnant le nom et les détails un harcèlement sexuel que tu as connu dans ton boulot. Je vous attends” (denounce your pig!! you too tell us, giving the name and the details of a sexual harassment that you experienced at work. I await you), posted a week after the Weinstein revelations, on October 13, 2017. The use of the term “pig” was a direct reference to an epithet used by some to describe Weinstein, as well as to the English “male chauvinist pig” used by early second-wave feminists, and, it has been suggested, as a way of turning around porcine characterizations of women historically used in French pornographic literature (Har-Peled 2018). A few hours later, she denounced “her” pig: Eric Brion, former boss of the horseracing television channel Equidia. #balancetonporc had a similar snowball effect to #MeToo: 200,000 mentions in three days, climbing to 500,000 in a month (Bekmezian 2017). It almost immediately prompted comparisons with the DSK affair (e.g. Montvalon 2018).
In the wake of #MeToo and #balancetonporc, both AVFT and French police found themselves confronted with a 30 percent spike in sexual harassment complaints in the month of October, 2017 alone, according to a widely-cited Agence France Presse report (for example, in Libération, November 13, 2017). In late January 2018, the AVFT was obliged to temporarily shut down its phone line due to a doubling of calls between 2015 and 2017, as given that its funding and thus staffing had not increased for thirteen years, it did not have sufficient resources to take on new cases or answer new requests for information, including from the media (AVFT 2018).
Ironically, the shiny new president of the Republic, Emmanuel Macron, in a fairly lengthy speech on November 25, 2017 (international day for the elimination of violence against women), launched his “grande cause du quinquennat,” that is, equality between men and women, with the first yearly priority of that “grande cause” being the fight against sexual and sexist violence (Macron 2017). His rhetoric, however, rang hollow when one looked at the chronic underfunding of feminist-run women’s services such as the AVFT. He also took care, in the #Metoo/#balancetonporc context, both to defend the “difference between the sexes”—“cette altérité profonde…qui est notre richesse” (this deep otherness that is our treasure)—and to distance himself from a US-style “société puritaine,” expressing concerns about falling into “un quotidien de la délation qui n’est pas notre République” (daily denunciations that do not characterize our Republic) (Macron 2017).
Both Macron’s words and the media debate over #Metoo/balancetonporc brought into sharp relief the particularly “French” dimension of public debate over sexual harassment that had been in evidence both at the time of the DSK Affair and in French reactions to the Anita Hill/Clarence Thomas sexual harassment case in the US. In a text published in Le Monde on January 9, 2018, with the headline (an excerpt from the text): “Nous défendons une liberté d’importuner, indispensable à la liberté sexuelle,” the 100 signatories defend “gallantry” and even “insistent” or “clumsy” sexual overtures by men to women against “man-hating feminism” (Millet et al 2018). The signatories include filmstar Catherine Deneuve, art critic and sexual autobiography writer Catherine Millet and singer Ingrid Caven. The text was immediately criticized by feminists, in a number of articles and interviews during the following days (e.g. Bah et al 2018; Sénac 2018). Some of the “Liberté d’Importuner” authors and signatories responded in turn, with Catherine Millet accusing Sandra Muller of “symbolically lynching” Eric Brion (Millet 2018, 122), as did Elisabeth Badinter (TV5 interview, February 8, 2018). Badinter has in the past sported feminist credentials but had also accused US feminists of puritanism and “witch-hunting” at the time of the Anita Hill/Clarence Thomas affair (Badinter 1991).
Australia, like France, saw a spike in sexual harassment complaints in the wake of #MeToo. The Australian Human Rights Commission (AHRC), an independent statutory body that provides advice, advocacy and research on a range of human rights and discrimination issues, conducted its fourth survey on sexual harassment in the second quarter of 2018. It found a significant rise in the reported experience of sexual harassment: one in three respondents in the 10,000-person survey sample reported being sexually harassed at work in the previous five years, compared to one in five in 2012 and one in ten in 2003. When the question was extended to lifetime experience, the survey found that 71 percent of Australians, of whom the overwhelming majority were women, had experienced sexual harassment in their lifetime. Fewer than one in five reported the harassment (AHRC 2018). (A survey conducted by the EU Fundamental Rights Agency in 2012 had also found very low rates of reporting [FRA 2014].)
In the wake of #MeToo came a wave of allegations of sexual harassment by high-profile actors and other media personalities, as well as by politicians, along with other allegations of sexism in public life (Collier and Raney 2018), including a very public defection from the governing Liberal Party over the issue by Julia Banks in late 2018 (Gothe-Snape 2018), and an enquiry into sexual violence on university campuses (AHRC 2017; Funnell and Hush 2018).
One of the most divisive public debates was over the alleged actions of internationally-renowned stage and screen star Geoffrey Rush, with both men and women prominent in the profession standing by him or, on the contrary, braving censure and litigation to denounce him. In the last section of this article, I will look at how Rush, Baupin and Brion’s revenge litigation trials played out and what it ended up costing the women involved.
The price women pay for speaking out
Rush’s defamation suit against The Daily Telegraph followed that newspaper’s publishing in November 2017 of a front page headline “King Leer” about a complaint of sexual harassment made to Sydney Theatre Company against Rush by another cast member of the homophonous Shakespearean play, in which Rush was then playing the lead. The newspaper subsequently published further articles, and the complainant was subsequently revealed to be Eryn Jean Norvill, who played the role of Lear’s youngest daughter Cordelia. Director Neil Armfield and some other cast members, including Helen Buday who played Lear’s eldest daughter Goneril, defended Rush.
Buday offered flamboyant support of Rush during the defamation trial, bursting into song on two occasions. When shown a 2016 text message Rush sent to Norvill stating he was “thinking of you (as I do more than is socially appropriate)” accompanied by an emoji of a face with a tongue hanging out, and asked by Telegraph lawyer Tom Blackburn whether it was “panting,” Buday made light of the message, finding it “delightful … the whole text is charming” (cited in McGowan 2018). Presiding judge Michael Wigney appeared sympathetic to Buday, in stark contrast to his attitude towards Norvill, who agreed to testify for the Telegraph. He characterized Norvill as having “revealed herself to be a witness who was, at times, prone to exaggeration and embellishment” (cited in Mitchell 2019). In response to this framing of Norvill as not credible, other women spoke out, notably another Australian actor Yael Stone, known internationally for her role as Lorna Morello in the popular Netflix series Orange is the New Black. In a forty-minute interview with The 7.30 Report, a well-regarded nightly current affairs program broadcast on public television, Stone told of her experience of working in a stage production with Rush in 2010 and 2011. He would send her increasingly sexual, even leering, text messages, spied on her in the showers, danced naked around their shared dressing room, and touched her inappropriately at an awards night. Stone, who was twenty-five years old at the time, was just starting out in her career and was afraid of making waves; she also found Rush perfectly charming in other respects. In speaking out, Stone knew that she was herself risking revenge litigation by Rush, but in the context of the litigation by Rush and the exposure of Norvill, she stated that it was now “in the public interest that [she] talk about these matters” (cited in Sales and Denness 2018). In response, Rush expressed a public statement of regret if the “spirited enthusiasm” he brought to his work had caused her any distress (cited in Sales and Denness 2018).
In France in 2016, former prominent Greens politician Denis Baupin took action against Médiapart and France Inter for having published the May 16 interviews with four female Greens politicians in which they told of their experience of sexual harassment by Baupin, then Greens deputy and Vice-President of the Assemblée Nationale, in 2011, in the context of the Greens campaign for the 2012 legislative elections (Bredoux 2016). On May 30 more women came forward. On 6 March the following year, the sexual harassment case against Baupin was closed due to the statute of limitations, but Baupin immediately brought a defamation suit against the authors of the media reports, their editors and the eight women who had testified to the media. Among the witnesses who had testified for the defendants was Cécile Duflot, high-profile Greens politician and former Minister for Housing. On May 27, 2016 Duflot had reported to the police an act of sexual harassment perpetrated against her by Baupin at the international Ecologist conference in Saõ Paulo, Brazil, in 2008. At that time, she was national secretary of Baupin’s former party Europe Ecologie-Les Verts, and Baupin was deputy mayor of Paris. She testified that in 2008, she did not know what action to take and feared that any action would be prejudicial to political outcomes and/or that she would be accused of making the allegation to discredit Baupin at a time when he was about to run against her for national secretary. According to Sandrine Rousseau, the first to publicly accuse Baupin, his male colleagues within the party were well aware of his sexually-harassing behavior towards women (as had also been the case for DSK). The “truth” defence by the media was effective in Baupin’s case, as was the number of women testifying against him, including one former minister. As was the context: since Baupin first took the action, #MeToo and #balancetonporc had happened, and memories of the DSK affair had been rekindled. Plus, the women found strength in their numbers, and in the high political profile of some among them.
Some months later, however, things turned out very differently for the instigator of #balancetonporc. The administrative tribunal where Brion’s defamation case was heard was of the opinion that Muller had not demonstrated that Brion’s actions had been repeated or constituted “serious pressure” on her (the tribunal was here referring to the legal definition of sexual harassment under the 2012 law), and that without sufficient factual evidence she could not use the “good faith” defence. The tribunal also, like many of the critics in the public arena (including some feminists), took exception to Muller’s use of the word “pig,” which associated Brion with Weinstein. The tribunal further drew attention to the deleterious impacts on Brion’s life: depression, social isolation, loss of income. Muller was ordered to withdraw the tweet and publish a formal retraction.
Brion told the media he had been tried by “buzz” (media-driven rumors), and negatively compared Muller’s tweet, which he framed as a random and thoughtless act of naming, to the investigative journalism that had exposed Weinstein (cited in Sotto 2019).
The feminist reaction was immediate. The day after the verdict, a group of twenty-one feminists representing a number of different associations published a text on the site of France Info in which they wrote that the force and originality of #BalanceTonPorc, #TimesUp and #MeToo was to extend the issue of violence against women to all sexist behaviors and to the sexist environment that women have to endure on a daily basis. They further commented that those behaviors that may in isolation seem more anodyne than sexual harassment or sexual violence in fact are the most massive and repetitive in women’s lives (Ansellem et al 2019, my translation), and noted that these behaviors constituted a “sexist affront” according to the terms of the Schiappa Law of 2018 (Loi n° 2018-703 du 3 août 2018 renforçant la lutte contre les violences sexuelles et sexistes). Even if the facts about which Muller tweeted were prior to that law, the latter was introduced precisely because of the sort of behavior to which Muller was exposed and that she denounced in her tweet.
The AVFT, for its part, “dismissed the charges” against Muller, stating first that, Brion’s actions were repeated, as after having being told to stop by Muller when he told her she had big breasts and was his type of women, he continued saying, “a pity, I would have made you come the whole night long” (AVFT 2019, my translation). In the opinion of the AVFT, Brion’s actions were thus both repeated and constituted serious pressure. Moreover, Brion himself recognized having said the words in question, but alleged that he used a playful, ironic tone (implying that the tone neutralized the harassment). The AVFT further pointed out that the French Court of Cassation, in a ruling handed down on May 17, 2017, a single act was deemed to constitute sexual harassment, as it was under EU Directive 2002/CE/73, binding on all member states (AFVT 2017, 2019). AFVT stated that the two defences against defamation— truth and good faith—were also valid. The two criteria for evaluating good faith are the absence of personal animosity (resulting in a deliberate attempt to harm the other party), which AVFT found not to be demonstrated, and the public interest. Given the context of the public debate about sexual harassment, and the appallingly low conviction rates for sexual harassment in France (85 percent of cases were dismissed in 2016, rape cases show a similarly depressing trend), AVFT found Muller’s denunciation of Brion’s unwanted sexual advances to be entirely in the public interest (c.f. Yael Stone’s comment in 2018, cited above). Muller was further reproached by the tribunal (and by part of public opinion) with having reacted in a disproportionately vehement manner and subjecting Brion to a trial by media (an accusation also levelled against #MeToo elsewhere). In response, AVFT noted, as have many other feminists, that in a context where violence and harassment against women are not taken seriously—socially, politically, in the workplace or in the courts—the only option left to them is to speak out.
In fact, if anyone is suffering from the “trial of public opinion,” it is these women who dare to speak out. If the Baupin case provides some glimmer of hope that justice for women who are routinely subjected to male violence and harassment is perhaps achievable, the outcomes of the Rush and Brion defamation cases dampen that optimism. Sexual harassment continues to be laughed off as clumsiness, just fun or “spirited enthusiasm” by the perpetrators, many of whom then reframe themselves as victims of vindictive women who cannot take a joke, and use both the media and the legal system to do so. The Rush case, along with the vilification of women like Sandra Muller, or Christie Whelan Browne, who denounced popular Australian television actor Craig McLachlan, has resulted in women becoming frightened to speak up, for fear of both litigation and public humiliation (Price 2018; Wilson 2018; O’Connell 2019). Whelan Browne was subjected to vitriol and rape threats on social media and reported that those attacks had seriously undermined her sense of self (cited in Stark 2018). Muller, for her part, was more blunt: “the message is clear, it’s: ‘shut up’!” (statement to the press on September 25, 2019).
Sociologist Anne-Marie Devreux noted in 2009 that the law was effectively a place of struggle between the dominant and the dominated: women are invariably disadvantaged when engaging in legal action, even in the case of laws presumed to operate in their favor (Devreux 2009, 37). In the case of #MeToo, significant differences in the legal frameworks between countries such as Australia and France notwithstanding, it is clear that this disadvantage continues. The victims become the ones put on trial, discredited as hysterical, vindictive or lacking a sense of humor, while the perpetrators reframe themselves as victims and use the legal system to exact revenge.
Feminists have always known that achieving full social, political and economic equality for women is a long-term struggle, requiring determination, endurance and a great deal of courage. #MeToo provided that initial burst of courage, but the endurance tests remains. Most importantly, the determination of some who, to paraphrase Muller’s words to the press on September 25, are prepared to accept being sacrificed on the altar of the law and public opinion, will still be needed before the wave of #MeToo will begin to seriously erode a centuries-long entrenched sense of male sexual entitlement.
Bronwyn Winter is Professor of Transnational Studies and Acting Chair of the European Studies department at the University of Sydney, where she also teaches in the International and Global Studies program. Her publications include Hijab and the Republic: Uncovering the French Headscarf Debate (Syracuse University Press 2008), Women, Insecurity and Violence in a Post-9/11 World (Syracuse 2017), Global Perspectives on Same-Sex Marriage: A Neo-Institutional Approach (Winter, Forest and Sénac eds, Palgrave 2018) and Reform, Revolution and Crisis in Europe: Landmarks in History, Memory and Thought (Winter and Moir eds, Routledge 2019).
*The title of this piece is based on a quote by Sandra Muller, the author of the #balancetonporc tweet, on exiting the Parisian administrative tribunal on 29 May, 2019, where she was being sued for defamation by Eric Brion.
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Sales, Leigh and Callum Denness. 2018. “Orange Is The New Black star Yael Stone makes explosive allegations about Geoffrey Rush.” ABC News, 17 December. https://www.abc.net.au/news/2018-12-17/yael-stone-explosive-allegations-about-geoffrey-rush/10625916, accessed 4 April 2019.
Sénac, Réjane. 2018. “Ne nous libérez pas, l’égalité va s’en charger.” Le Nouveau Magazine Littéraire, 10 January. Accessed 11 January 2018. https://www.nouveau-magazine-litteraire.com/idees/ne-nous-lib%C3%A9rez-pas-l%C3%A9galit%C3%A9-va-sen-charger.
Sotto, Thomas. 2019. “#BalanceTonPorc: ‘J’ai été victime du tribunal du buzz’, dit Éric Brion.” RTL, 25 September. Accessed 2 October 2019. https://www.rtl.fr/actu/debats-societe/balancetonporc-j-ai-ete-victime-du-tribunal-du-buzz-dit-eric-brion-7798367724.
Stark, Jill. 2018. “Life after #MeToo: Christie Whelan Browne is moving on.” The Sydney Morning Herald, 15 July. Accessed 2 October 2019. https://www.smh.com.au/entertainment/theatre/life-after-metoo-christie-whelan-browne-is-moving-on-20180711-p4zqut.html.
UTS Centre for Social Justice. 2018. “#MeToo exposes problems with Australia’s defamation laws.” University of Technology Sydney, 15 November. Accessed 2 October 2019. https://www.uts.edu.au/partners-and-community/initiatives/social-justice-uts/news/metoo-exposes-problems-australias.
Wilson, Sarah. 2018. “Geoffrey Rush’s sexual harassment defence shows why #MeToo’s work is not done yet.” The Independent, 17 December. Accessed 2 October 2019. https://www.independent.co.uk/voices/geoffrey-rush-yael-stone-sexual-misconduct-allegations-metoo-apology-statement-a8687021.html.
 Muller’s statement is available at http://video.lefigaro.fr/figaro/video/sandra-muller-le-message-est-clair-c-est-taisez-vous/6089382177001/. Accessed 2 October 2019
Photo: Nice, Cote d’Azur, France – February 24 2019: Carnaval de Nice, This years theme King of Cinema (ROI du Cinéma) – #metoo inspired float | Shutterstock
Published on March 10, 2020.