Immediate apologies, spontaneity and ‘provocation’ are not reasons to automatically relax sanctions against barristers who have committed sexual misconduct, the Bar Council has said.
Responding to a review of the bar’s sanctions guidance, the council said it had concerns about proposed mitigating factors, including immediate apologies. ‘It is important that panels when considering this feature should be directed to assess how genuine such an apology is,’ it told the Bar Tribunals Adjudication Service (BTAS).
'One aspect of harassment, and particularly sexual harassment, which renders it difficult for the person experiencing it, is the way in which a perpetrator can distance themselves from their own actions either by referring to the conduct as "banter" or by doing something and then immediately apologising,' the response states.
Expressing concern about 'spontaneity' being used to assess the seriousness of sexual misconduct it adds: ‘The dichotomy that is posed there might suggest to some decision-makers that if the misconduct was "spontaneous" this renders it that much less serious. In the context, in particular, of sexual harassment there is a real need for care in this type of thinking.’
On whether ‘provocation’ should be used to assess the seriousness of misconduct, the council said this could encourage respondents to blame victims. ‘In the context of sexual harassment, in particular, it is difficult to reconcile entirely this factor to the concerns that have been expressed by the general public in many different ways about situations in which women who have experienced sexual harassment have been blamed for, in some way, encouraging it.’
The Bar Council stressed that discrimination, including sexual harassment, must result in ‘clear and consistent condemnation’ from the tribunal. ‘Whilst the number of cases decided by BTAS panels in the last three years may be very small, there is clear evidence that the way in which sentencing has been carried out has had a detrimental impact on the confidence of sectors of the general public, and in particular women, on the seriousness with which these matters are taken by the profession and the regulator,’ it said.
It added that the incidence of sexual harassment is believed to higher than the number of cases that are brought.
The first stage of the consultation closed earlier this month. In its review, BTAS suggested that penalties for sexual misconduct should start at a suspension of over 12 months and finish at disbarment.
