The urgent need for an external independent body to address sexual harassment in the courts

In July 2021, four women, court staff from a small town in South Africa, lodged sexual harassment complaints allegedly committed by a judicial officer, with their court manager. The court manager, presumably unaware of the correct process, sent the complaints to the area manager, where they remained unattended for a month. In August 2021, during Women’s Month, the DGRU was alerted to the matter and contacted the Magistrates Commission and Chief Magistrate to inquire about the investigation. The judicial officer was not suspended but was moved to another court in a nearby town. Within two weeks, a community protest erupted outside the new court, with placards stating, “XXX is no dumping spot for magistrates with sexual offences,” “away with our corrupt magistrates,” and “sekspes landros moet waai.”

The first communication the complainants received was in February 2022, when the Magistrates Commission sent a man to interview them. A year later, they were informed that two of their complaints were not strong enough to proceed to a formal hearing. By late 2023, the women reported facing ridicule and secondary victimisation, with people telling them it was pointless to complain. This scenario is all too common.

The matter was finally set for a formal hearing in July 2024, three years after the initial complaint. However, the alleged perpetrator resigned, rendering the inquiry null and void. He can now seek employment elsewhere in the legal profession with a clean record. Had the complaints been dealt with swiftly, perhaps this might not be the case. This case study is an example of how the system fails women. It is not an anomaly or exception to how matters are handled. It is, depressingly, the story across the board.

DGRU Research into Sexual Harassment

For the past year, the DGRU has been conducting research into sexual harassment in the court building, expanding on research conducted in 2023. This current research which involved a number of focus group workshops, confirmed what we know:

• Prevalence: Women judges, magistrates and lawyers have experienced or know someone who has experienced sexual harassment.
• Reporting reluctance: most women indicated they would not report harassment due to fear of negative consequences or the belief that it would make no difference.

All of the research respondents agree that the current systems fail survivors of sexual harassment and that an external independent body is required for the entire legal profession to deal with sexual harassment matters. There is consensus that the proposed external independent body should deal with matters that come from all people who are part of the court system, i.e. court support staff, security guards and cleaners.

Systemic failures

The system fails women in several critical ways:

• Lack of accessible information: There is no publicly available information on how to lodge complaints about judicial officers, presuming access to the internet and knowledge of the relevant websites.
• No suspension during investigation: Alleged perpetrators are not suspended during investigations, often leading to secondary victimisation.
• No psycho-social support: Complainants receive no psycho-social support and must continue working alongside their alleged harassers.
• Inadequate training: Investigators and initial statement takers lack training in a victim-centred approach.
• Poor communication: Minimal communication with complainants during investigations leads to secondary victimisation.
• Length of time to finalise: matters take years to get finalised as there are no appropriate time frames set for dealing with sexual harassment complaints.

“Sexual harassment in the courts is a global scourge that remains an open secret with few, if any, consequences for perpetrators. The barriers to the effective fight against sexual harassment in the courts include things such as the fact that the court is not a single employer – the people who work in the building are employed by the Department of Justice; the Office of the Chief Justice, the National Prosecuting Authority (NPA) or may be a self-employed attorney or legal aid lawyer. This complicates reporting of incidents as each stakeholder has a different body that deals with conduct matters, and it is not always clear who to report to and how to report.” [Pg 28 https://www.judgesmatter.co.za/wp-content/uploads/2024/02/DGRU-Court-User-Survey-2023-Research-report.pdf]

The solution: An independent body

An anti-sexual harassment policy regulating the conduct of judicial officers, court staff, and other personnel is essential but insufficient. A policy alone does not address the deep-rooted power dynamics around harassment or effectively protect vulnerable women like interpreters, clerks, security officers and cleaners.

Our research results indicate that women in the legal profession unanimously call for an external independent body to address sexual harassment complaints. Sexual harassment in the courts is a global issue with few consequences for perpetrators. The complexity of the court’s employment structure complicates reporting, as different stakeholders have various bodies dealing with conduct matters.

“For the judiciary and the courts, there needs to be a policy that is implementable to deal with sexual harassment complaints. Sexual harassment complaints cannot be dealt with in the same manner as any other ordinary complaint. The policy must establish an independent body that deals with sexual harassment complaints. The independent body should be as diverse as possible and should include members of the judiciary, the DoJ, the NPA, the Legal Practice Council, academia, and layperson(s). The policy should have timeframes within which a sexual harassment complaint must be dealt with. A sexual harassment complaint cannot and should not take more than 12 months to be finalised. The policy should ensure that secondary victimisation is not inflicted on complainants of sexual harassment by all means possible. The policy must also ensure that precautionary suspension of an alleged perpetrator is provided for and note that precautionary suspension does not mean that the alleged perpetrator is guilty of sexual harassment.” [Pg 28 https://www.judgesmatter.co.za/wp-content/uploads/2024/02/DGRU-Court-User-Survey-2023-Research-report.pdf]

To address the systemic issue of sexual harassment in the courts, we must establish an external independent body comprising retired judges, lawyers, civil society organisations, and others trained in trauma-centred approaches. This commission should expedite investigations and ensure fair and effective resolutions within a reasonable timeframe, preferably not more than six months.

Addressing sexual harassment in the courts is not just a policy matter; it is a fundamental issue of justice and equality and requires a cultural shift. By implementing comprehensive reforms and fostering a culture of accountability and respect, we can create safer and more equitable court environments for all. We call on the judiciary and relevant authorities to take immediate action and establish an external independent body to protect and support victims of sexual harassment.