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‘She Said, He Said’: Credibility and sexual harassment cases in Australia

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DOI: 10.1016/j.wsif.2008.08.009

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Women's Studies International Forum 31 (2008) 336–344

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Women's Studies International Forum

j o u r n a l h o m e p a g e : w w w. e l s ev i e r. c o m / l o c a t e / w s i f

‘She Said, He Said’: Credibility and sexual harassment cases in Australia

Patricia Easteal a,⁎, Keziah Judd b
a
Faculty of Law, University of Canberra, Canberra, ACT 2601, Australia
b
Porters Lawyers, GPO Box 908, Canberra ACT 2601, Australia

a r t i c l e i n f o s y n o p s i s

Feminist research and theory show how substance and process of law are substantially affected
by its patriarchal context. Accordingly, a number of Australian studies have identified how
gendered myths and other factors impact on the assessment of victim credibility in sexual
assault hearings. In this article we look at sexual harassment cases in Australia lodged under the
Commonwealth Sex Discrimination Act (SDA) between 2000 and 2006 and the Australian
Capital Territory (ACT) Discrimination Act from 2001 to 2005 to see if similar variables to those
in rape cases play a role in the perception of witness believability. We find that credibility is
more likely to correlate with being Anglo, very young, a rational (masculine) demeanor/
presentation in giving evidence, corroborative witnesses and legal representation. In addition,
respondents' counsel in federal harassment hearings or respondents themselves in
correspondence to the ACT Commissioner, just as defence barristers in rape trials, attempt to
make the victim appear as an incredible witness through highlighting evidentiary
inconsistencies and/or delayed reporting. Also evidence about sexual history or behavior that
evokes an image of provocation may be adduced. We identify a varied response to these myths
and to measurement of credibility by the individual ‘gatekeepers’ — the Federal Magistrates,
judges and the ACT Discrimination Commissioner.
© 2008 Elsevier Ltd. All rights reserved.

Background
In her ground-breaking 1979 book Sexual Harassment of
Working Women — A Case of Sex Discrimination, Catharine
MacKinnon saw sexual harassment as a manifestation of
gendered oppression that was ignored and belittled by the
legal system. Almost three decades later, the enactment of
anti-discrimination legislation in many jurisdictions world-
wide, such as section 28A of the Australian Sex Discrimination
Act (SDA) 1984 (Cth) has meant that this form of violence
against women is no longer what MacKinnon described as
‘legally unthinkable’ (MacKinnon, 1979: ix). However
research a decade ago that looked at how section 28A was
being implemented concluded that Australian legal remedies
have been limited by a ‘credibility crevasse’ (Tyler & Easteal,
1998: 214). The less power individuals have, the less credible
that they are regarded; hence women are generally located at
the low end of the ‘hierarchy of credibility’ (Hunter, 1992:
228).
This finding fits within a feminist perspective of the law.
Values, beliefs, norms, mores, organisations and structures
interact in a culture with multi-directional feedback. A
sophisticated piece of holistic machinery, nothing in the
social system exists in isolation (Easteal, 2001). So too laws
and legal process, which are greatly affected by the other
parts of the society:
Feminist scholarship uniformly rejects the positivist
characterisation of law as a science of rules that can be
understood apart from its historical origins and from the
political, social and economic conditions which have
given it form and shape (Berns, 1993: 120).

Feminist legal academics have illustrated in theory and

⁎ Corresponding author. through empirical research how law's principles and

0277-5395/$ – see front matter © 2008 Elsevier Ltd. All rights reserved.
doi:10.1016/j.wsif.2008.08.009
 Author's personal copy
P. Easteal, K. Judd / Women's Studies International Forum 31 (2008) 336–344
processes fit within a context that often doesn't reflect
women's reality. For instance, the very core of the legal
process has a male character with ‘gladiatorial, combative
features’ (Graycar & Morgan, 1990: 410). Thus for MacKinnon
(1983, 1989) law itself is seen as flawed since it has been
created by and for men with basic underpinnings of liberalism
and its emphases upon a public/private dichotomy, the
individual, equality and the concept of free will.
Accordingly, from a feminist vantage point, the idea of
legal objectivity is absurd; law ‘speaks to men while it
alienates and excludes women’ (Davies, 1994: 191). Therefore
when we look at how credibility is assessed within the
criminal justice system, we must recognise that it is
subjectively determined and measured through a series of
patriarchal lenses or what Easteal (2001: 9) has labeled as the
‘dominocentric kaleidoscope of reality.’ As Scutt (1993: 9, 20)
states:
To be a woman, whether as victim of crime or accused, is
to be incredible in the context of the law…Women have
suffered from the failure of the legal system to take
women seriously, to grant to women the same allowance
that is extended to men: that of characters with full
mental powers, with full human status, with the right to
be regarded as credible as human beings operating in this
world.
Less credibility for women is in part a correlate of their
relative lack of power, which is systemically perpetuated
through the social structure's gendered divide between the
domestic sphere and the public. Fitting within this context, a
Madonna — whore duality construction of gender sexuality
and personality persists. ‘Good’ women are perceived as
passive and essentially asexual and more plausible than their
‘promiscuous’ sisters. At the same time though, there is a view
of all women as being, by nature, sexually unreliable: within
the Madonna apparently lies the potential or dormant whore,
the ‘Eve’ provocateur (Smart, 1995). Hence, the most credible
females are those closest to purity for whom it is difficult to
impute any provocation. This ideal of female passivity appears
to have persisted in the courts, despite the perspective of more
recent works such as Ariel Levy's Female Chauvinist Pigs which
suggest a new dominant ideal of femininity within Western
society: the sexually confident women who ‘make sex objects
of other women and of [themselves]’ (Levy, 2005: 4).
Research has shown that very young women who are
alleging assault or harassment by a much older male are more
likely to be believed (Tyler & Easteal, 1998). And, placement in
the hierarchy of credibility is open to even more filters than
sexism and ageism. Certainly racism has been found to play a
role in how the more (un)believable victim is constructed
(Mack, 1999).
Then, in addition to receiving a (no doubt unconscious but
indelible) credibility rating based upon ethnicity, sexual
history and age, the believability of the person's ‘story’ is
measured by evidentiary and process variables — for instance,
her emotions and actions at the time of the offence and
afterwards and how she tells the ‘story.’ In essence, ‘the law
sees and treats women the way men see and treat women’
(MacKinnon, 1983: 685). And, women are characterized as
irrational, illogical, emotional and erratic (Naffine, 1995).
337
These are not traits that evoke credibility in a male world — in
fact, quite the opposite as credibility depends upon the ability
of the victim or complainant to fulfill related myths of ‘good’
(rational and unemotional) victim behavior as defined by the
dominants. As a consequence, the notion that victims of
violence will immediately report the offence (Henning &
Bronitt, 1998) and be consistent in their evidence (Easteal &
Feerick, 2005) is prefaced upon an ethos or rationale of logic
and ‘reason’ and fails to understand both the power
imbalance at the fulcrum of assault and harassment and the
victim's trauma and emotions, which affect memory and
ability to disclose. Accordingly, the defence in sexual assault
cases may try to discredit the victim/witness by asking
‘questions that jump between apparently unrelated topics,
timeframes, places and incidents’ (Taylor, 2004a: 125) and by
implying that delay in reporting is ‘indicative of fabrication’
(Taylor, 2004b: 278).
Another evidence/process variable is more abstract; it is
about demeanor or presentation. As Taylor (2004a: 83)
writes, ‘It isn't always just what you say but the commitment
with which you say it.’ And, unfortunately once again
women's testimony is juxtaposed against a masculine
standard of what constitutes plausible linguistic and para-
linguistic communication.
The rules of evidence are based upon a metaphysics of
presence. Witnesses [as are complainants and respon-
dents] are to give oral evidence, and the truthfulness of
that evidence is determined largely through cross-
examination and the witnesses' general demeanour
(Hunter & Mack, 1997: 191).
Thus, Lievore (2004: 4) has found that prosecutors in
sexual assault cases believe there to be a nexus between
demeanor and credibility with the latter enhanced by a non-
aggressive, not too ‘smart’ or argumentative presentation
coupled with confidence.
Just as a woman's delivery of evidence is compared to
dominant standards of ‘normalcy’ and found wanting or
different and therefore less likely to be believable, non-Anglo
women have to deal with those hurdles and more. For
example, mainstream Australian culture equates honesty
with eye contact whereas in some Aboriginal, Asian and
Middle Eastern cultures, it may not be acceptable for a woman
to make eye contact, particularly with males. Further, the
adversorial system emphasises direct questioning, little
silence and the need frequently to answer ‘yes’ or ‘no’
(Mack, 1999). This may conflict with indigenous speech
patterns such as long periods of silence, a recognition that a
‘yes’ answer may not relate to the question asked, less direct
forms of obtaining information and the use of informal third
party go-betweens (Hancock, 1997).
Finally, the legal world has viewed women as confabula-
tors bent on bringing false accusations against men (Henning
& Bronitt, 1998) and so corroboration can be vital in
establishing an abuse victim's credibility. In fact, despite the
abolition of legislation, which required judges in sexual
assault trials to warn that corroboration was necessary, it is
still not uncommon for juries either to be advised to
scrutinize the complainant's evidence with great care or to
be warned that it is dangerous to convict on a complainant's
 Author's personal copy
338 P. Easteal, K. Judd / Women's Studies International Forum 31 (2008) 336–344
evidence alone (Mack, 1998). This is in part the consequence
of the 1989 High Court case of Longman (168 CLR 79) in which
a rape conviction was reversed because a warning was not
given by the trial judge.
In the context of sexual harassment matters, corroborative
evidence can be useful at a couple of levels since there are two
issues that need to be proved: first that the incident(s) of
harassment took place and second that these caused the
individual humiliation and distress. Tyler and Easteal (1998:
215) found that credibility was enhanced by witnesses
who confirmed the second — that the complainant had an
appropriate emotional response to the harassment. They
conclude:
This reliance on experts to validate the sexually harassed
woman's experience reinforces the notion that the
woman's own voice is not reliable for giving evidence.
(Tyler & Easteal, 1998: 215)
The current study: aims and methods
Therefore, ethnicity, where the woman is placed on the
‘Madonna/whore’ continuum, her age, whether and when she
reported the incident(s), consistency in her evidence, her
demeanor when giving evidence and corroboration of her
‘story’ have been found in earlier research to play a role in
sexual violence legal proceedings through defence tactics
aimed at discrediting the victim/witness and/or impacting on
the decision-maker's assessment of credibility. The present
study investigates these credibility issues further, focusing on
a recent sample of sexual harassment cases gathered from
two jurisdictions (and two different types of legal processes)
in Australia.
We were given access to 46 sexual harassment files
handled by the Australian Capital Territory (ACT) Human
Rights Office (HRO) that were lodged in that Office between
2001 and 2005. (Note: A confidentiality agreement prohibits
the naming of a complainant or any reference or allusion by
which the identity of that complainant is disclosed or from
which the identity of the complainant might reasonably be
inferred.) At the time of the research, the HRO was a small,
independent office in the ACT with a mandate to promote
human rights through the administration of the ACT Discri-
mination Act 1991 and the ACT Human Rights Act 2004.
Following written submission by a complainant, the
Commissioner conducts an investigation, ‘not bound by
rules of evidence’ (ACT Discrimination Act 1991, s 75(3c)),
into whether sexual harassment has taken place. The legal
test applied is described as an ‘objective’ one; an intention to
discriminate does not have to exist; a sexually permeated
working environment may amount to sexual harassment and
it is irrelevant that the conduct may not have affected others.
In most cases, aspects of each tier of a five fold test for sexual
harassment are assessed: that conduct occurred; that it was
of a sexual nature; that it was unwelcome; that it caused the
complainant to feel offended, humiliated or intimidated by
reason of the nature of the conduct; and that it was
reasonable for the complainant to feel offended, humiliated
or intimidated. If it is concluded that discrimination has taken
place, the Commissioner will attempt to conciliate the matter.
Staff report that the threshold for a decision not to decline a
complaint (and where appropriate attempt conciliation) is
not very high and is a lesser test than the balance of
probabilities used if the matter proceeds to the ACT
Discrimination Tribunal. Twenty-six of the 46 ACT harass-
ment matters were directed to conciliation and agreement
was reached in 22 of the 24 conferences held.
By using the electronic legal database, AUSTLII, we also
identified the 25 most recent cases heard between 2000 and
2006 in the Federal Magistrates Court and Federal Court
under the SDA. These are matters that were not successfully
resolved with conciliation by the ACT HRO's Commonwealth
counterpart, HREOC (Human Rights and Equal Opportunity
Commission). Through a hearing process, the Federal Magis-
trate or Federal Court judge determines whether sexual
harassment as defined under s 28A of the SDA has occurred:
(1) For the purposes of this Division, a person sexually
harasses another person (the person harassed) if:
(a) the person makes an unwelcome sexual advance,
or an unwelcome request for sexual favours, to the
person harassed; or
engages in other unwelcome conduct of a sexual
nature in relation to the person harassed;
(b) in circumstances in which a reasonable person,
having regard to all the circumstances, would have
anticipated that the person harassed would be
offended, humiliated or intimidated.
(2) In this section:“conduct of a sexual nature” includes
making a statement of a sexual nature to a person, or in
the presence of a person, whether the statement is
made orally or in writing.
In our sample, the matter was upheld in more than two
thirds (68%); however in just over half (13) of the total cases,
the judge or magistrate did express some reservation about the
woman's credibility such as ‘She did not impress as a witness of
truth.’ The complaint was upheld in less than half of those.
It should be noted that the standard of proof in civil law
(sexual harassment) in theory at least differs from that in
criminal law (rape): proof on the balance of probabilities in the
former as opposed to proof beyond reasonable doubt in the
latter. Generally though the High Court decision in Brigin-
shaw v Briginshaw (1938, 60CLR 336) has been accepted as
the precedent for standard of proof to be applied in
harassment cases, which includes a ‘closer scrutiny of the
evidence’ and ‘also suggests that discrimination requires a
higher level of proof than the balance of probabilities’
(DePlevitz, 2003: 315).
Let's now look at the variables identified in earlier research
that appear to correlate with perceptions of (in)credibility and
see what influence, if any, that they have in sexual harassment
matters in the two jurisdictions and with the different types of
dispute settlement — conciliation and hearings.
Personal attributes and credibility
Sexuality and relationships — the ‘bad’ woman
At the trial with the parties on oath or affirmation,
credibility is tested by the witnesses being seen and heard in
 Author's personal copy
P. Easteal, K. Judd / Women's Studies International Forum 31 (2008) 336–344
person. In nine of the Commonwealth matters, during cross-
examination, the respondent introduced evidence of the
complainant's relationships with men and attitudes to
sexuality. In seven of these though, the complaint was still
upheld and in a few, the Federal Magistrate clearly
articulated a view of the irrelevance of such evidence. In
one:
Although these relationships had no bearing on the
allegations made by Ms Shiels she was cross examined
extensively about them in order test her credit generally
(Shiels v James, 2000).
Yet, the same judicial officer, Federal Magistrate Raphael
had a different reaction to the besmirching of a complainant's
character in Horman v Distribution Group Limited (2001). He
found her response to an allegation that she once ate a banana
‘in a sexually provocative fashion’ lacked credibility. Three
other sexual related allegations about the complainant were
made with evidence produced that her denials about them
were false. Raphael again agreed that the respondent's
‘evidence of their existence was much more likely to be true
than false.’
Similarly, in San v Dirluck Pty Ltd (2005), Federal
Magistrate Raphael did not entirely reject this sort of evidence
as irrelevant. Ms San, who worked as a casual sales assistant
in a butcher's shop, had complained of inappropriate
questions about her personal life and unwanted sexual
comments. The respondent sought to introduce evidence
that Ms San, ‘on occasions made lewd references to male
sexual organs utilising sausages or other meats.’ Raphael's
acceptance of this evidence implies that a woman who
engages in sexual banter is less sensitive to sexually offensive
comments:
…the fact that Ms San may have made these remarks or
acted in this way does not excuse any breaches of the Act
by others. Her conduct could only go to consideration of
whether the sexual remarks directed at her were likely to
offend, humiliate or intimidate her.
Some distinction must be drawn between these two cases.
Raphael FM made a logical link in San between the
complainant engaging in sexual banter and her attitude to
sexual comments and her level of sensitivity to similar
comments. This seems to correlate with the legislative
intentions of the ‘reasonable person’ test. However, the
discussion of the complainant's sexual history in Horman
raised different issues. This evidence was not raised to
provide an answer to the ‘reasonable person’ test, or to
claim that Ms Horman was not likely to be offended,
humiliated or intimidated. Instead, this evidence was led
solely to discredit her as a witness, and had no direct
relevance to the issues in the case.
In the ACT, although the Commissioner would not
dismiss a complaint because respondents cast aspersions
on the morality of the complainant, these character attacks
often emerged during the investigation by the ACT Human
Rights Office. For instance, in one case, the respondent
claimed that the woman had flirted and invited him to a strip
club. The Commissioner's decision letter espoused her view
339
that such evidence was perhaps intended to imply that the
alleged harassment behaviors might not have been unwel-
come; she however was not prepared to make such an
implication. Nor was HRO staff prepared to do so in other
cases in which the respondents raised issues of the
complainant's character, workplace performance and rela-
tionship with other people. In one, the Commissioner noted
that she only relied on those parts of the information, which
in her view went to the question of unlawful discrimination.
Such reasoning correlated with her viewpoint in another
matter that the respondent's evidence about the complai-
nant engaging in frivolous chitchat with young single male
staff might be an attempt ‘to undermine complainants'
credibility.’
Age
Age was considered a decisive factor in establishing that
the alleged harasser's sexual conduct was unwelcome in two
cases heard under the SDA. For example in Cooke v Plauen
Holdings (2001):
On the balance of probabilities I find that Mr Ong's
interest in Ms Cooke was unwelcome. He was a much
older man than Ms Cooke and she was unlikely to have
any interest in him.
However, Ms Cooke's complaint of sexual harassment was
dismissed because Federal Magistrate Driver was not certain
that she was ‘offended, humiliated or intimidated’ by Mr
Ong's conduct.
Age differential was also considered by Justice Moore in
Elliott v Nanda (2001):
It is to be recalled that the applicant was, at the time, a
teenager and the respondent a middle-aged medical
practitioner. In that context it is difficult to avoid the
conclusion that conduct of the respondent involving
touching the applicant …was unwelcome…
Ethnicity
In four of the five cases in which the complainant (based
on surname) was non-European/Anglo, her complaint was
dismissed and in three of the four found to be ‘incredible.’
(Ho, Huang, Wong, Zhang were dismissed; San upheld.)
Similarly in the three cases in which a respondent with a non-
Anglo surname testified, his evidence was not seen as reliable
as the (Anglo) complainant. Federal Magistrate Driver
described Mr Zheng in Beamish v Zheng (2004) as ‘not an
impressive witness’ with evidence that was ‘internally
inconsistent, vague and unpersuasive.’ Federal Magistrate
Raphael commented in Bishop v Takla (2004) that, ‘I do not
accept Mr Takla's denials relating to the physical incidents nor
his excuse about brushing past Ms Bishop in a rush to get to
his post.’ In the third case (Phillis v Mandic, 2005) with a non-
English speaking respondent, although Raphael acknowl-
edged the difficulties in testifying for someone for whom
English was not his ‘native language,’ he preferred the
complainant's evidence.
 Author's personal copy
340 P. Easteal, K. Judd / Women's Studies International Forum 31 (2008) 336–344
Behavioral variables and credibility
Reasonable response to harassment
A strong link between the complainant's response and the
court's perception of her incredibility was evident in Huang v
University of NSW & Ors (2005). Ms Huang alleged that one of
the respondents sexually harassed her by showing her
pornographic pictures when she asked for computer advice.
Her response at the time did not seem to match with the
Federal Magistrate's idea of a ‘reasonable’ victim:
Even if Mr Xiao did show Ms Huang some of these
pictures, there is no evidence that Ms Huang made any
complaint to Mr Xiao about his conduct at the time. In her
affidavits, and other documents, Ms Huang recounts what
she was shown but does not say anything about her
reaction.
Similarly in Cooke v Plauen Holdings (2001) the Federal
Magistrate did not consider Ms Cooke's behavior that of a
‘reasonable’ person who had experienced harassment:
I do not think that Ms Cooke was harassed by these
invitations. She was clearly uncertain as to how to react,
which is why she sought advice from her father. She did,
however, accept the invitation to coffee (although she
later cancelled it because her mother was visiting) but I
am not satisfied that Ms Cooke was offended, humiliated
or intimidated by these invitations.
One aspect of a masculine-constructed ‘normal’ response
to harassment appears to be reporting immediately. Table 1
indicates that the majority of women (in the Federal
Magistrates sample) did not complain right after the
harassment. The table also shows that where there was a
substantial delay, the complaint was less likely to be upheld
compared to those that were reported immediately or
within a few days.
Federal Magistrate Raphael, in Font v Paspaley Pearls
(2002) did show some understanding about why a complai-
nant may delay disclosure:
…the fact that Ms Font did not complain about the alleged
conduct of Mr Purkis does not mean in itself that it did
not occur. In an employment situation, where the
employment was allegedly subjected to what her Counsel
Table 1
Complainant reporting and outcome, SDA sexual harassment cases, 2001–
2006
Outcome Complainant Complainant There was a
reported immediately made complaint substantial delay
(same day) within a few days in reporting time
Complainant (6) 75% (4) 100% (7) 54%
upheld
Complaint (2)⁎ 25% 0 (6) 46%
dismissed
⁎In one of these two matters only one of several incidents was reported
immediately.
described as ‘low level harassment’ over a period of time,
a failure to complain is not unusual.
Despite that acknowledgment, Raphael viewed the com-
plainant's inability to communicate her discomfort to the
respondent as contributing to the harassment:
… her failure to do so may have meant that Mr Purkis
continued with conduct towards her which he would not
have continued with had he known that it was un-
welcome.
(Note: One might have hoped that rather than the onus
being on a worker to show that she feels uncomfortable, the
onus should be on workers not to engage in conduct that gives
rise to such discomfort.)
There may also be a ‘catch 22’ situation for complainants
who do report incidents and are forthright in their rejections.
This was illustrated by Magistrate Driver in Beamish v Zheng
(2004) placing considerable emphasis on the complainant's
continuing to work for five months after the respondent had
left the workplace, being ‘forthright in rebuffing Mr Zheng's
advances’ and having ‘the courage to make a complaint against
him to her employer.’ Driver seemed to use these actions to
discount the woman's claims of ongoing psychological trauma
and reduced her award of damages accordingly.
Such minimal understanding about victim psychology and
delayed reporting is in marked contrast with the response of
the ACT Commissioner. It was not uncommon for the
respondents' arguments to include an emphasis on complai-
nants' delay in reporting; however HRO staff clearly did not
equate delay in reporting with victim incredibility:
Submissions on behalf of both respondents have made the
point that your complaint was not lodged with this Office
until six weeks after the incident of alleged harassment.
In my experience of investigating complaints of sexual
harassment I do not believe that this is an unusual delay. I
would also add that I do not believe it is significant that
you did not report the incident to the police, a fact also
brought to my attention by both respondents.
As typified in the last sentence, the ACT HRO Commis-
sioner consistently expressed an understanding of why a
complainant would wait to disclose. In two other matters:
The fact that she didn't make a complaint about one
incident at the time but instead walked away from the
behaviour, does not necessarily show that she didn't feel
offended …as I accept that it can be difficult for an
employee to make a complaint against a co-worker
particularly in situations where the workplace culture is
as you describe.
And:
In considering whether the alleged comments were
unwelcome to you, I am not inclined to reach the view
that they weren't simply because you did not tell or
otherwise indicate to (the respondent) that his behaviour
was unwelcome. The case law on this issue takes into
 Author's personal copy

P. Easteal, K. Judd / Women's Studies International Forum 31 (2008) 336–344 341

account the reasons why someone may feel unable to
confront an alleged harasser directly, including the nature
of the power relationship between the parties.
Consistency
The ACT HRO letters that decline or accept complaints often
included a statement such as: ‘I also consider the consistency
and plausibility of information provided.’ As Table 2 illustrates,
federal magistrates and judges were also concerned about this
aspect of evidence, making some comments about the (in)
consistency of the complainant's evidence in 18 matters —
inconsistency in 13; consistency in five. Mention was made of
the respondent's evidence in 17 cases pointing to inconsistency
in 10 and consistency in seven.
Not surprisingly in all five matters where the complainant's
evidence was deemed inconsistent and the respondent's
consistent, the complaint was dismissed.
In the six where the complaint was upheld and the
applicant's testimony was designated in some way as incon-
sistent, the respondent was also so perceived. Accordingly both
the complainant and the respondent in Frith v the Exchange
Hotel & Anor (2005) were found to have some ‘inaccuracies and
inconsistencies’ in their evidence and affidavits. Remembering
more details under cross-examination or in secondary affidavits
was used by the respondent in that case to discredit the
complainant. As the Magistrate put it, ‘Ms Frith was tested by
cross-examination which sought to attack her general reliability
as an historian of all of the events as they occurred…’ Federal
Magistrate Rimmer concluded though that, ‘Recollection is
notoriously unreliable’ and he viewed the complainant as
overall a truthful witness. And, in Horman v Distribution Group,
although inconsistencies in testimony by the respondents did
not attract the same degree of criticism as Ms Horman's
‘inconsistent’ account of her sexual history, Raphael upheld her
sexual harassment complaint.
Of the eight matters in which the complaint was not
upheld, the complainant's evidence in seven was perceived as
less than dependable. For instance, in Daley v Barrington &
Wright & NSW Greyhound Breeders, Owners and Trainers
(2003) Ms Daley was unable to remember precise details
about when the alleged incidents of harassment occurred,
such as dates, which contributed to Raphael's decision to
dismiss her complaint. He preferred the evidence of Mr
Barrington, who ‘gave his evidence evenly.’
Ms Wong (Wong v Su & Anor, 2001) was considered ‘a
highly unreliable witness’ due to her inability to recall any
specific details of alleged harassment. Under cross-examina-
tion, she was unable to remember details about when she
went to the police or the surname of her interpreter and did
not produce any documentary evidence that she reported her
former employer Mr. Su's conduct to the police. Driver
considered her evidence ‘unbelievable.’
Presentation/demeanor
Subtle aspects of presentation including tone and cadence
of voice may play a role as indicated by Federal Magistrate
Connolly in Treacy v Williams (2006):
Ms Treacy's evidence was inconsistent and she displayed
a somewhat aggressive demeanour…Ms Treacy was also
evasive and unresponsive to questions and at others
provided gratuitous information.
An ‘even’ presentation by a respondent in Daley v
Barrington & Wright & NSW Greyhound Breeders, Owners
and Trainers seems to be positive as we saw above but
‘studied’ responses perhaps not so with Justice Moore in
Elliott v Nanda (2001) commenting:
The respondent…did not impress me at all. There were
many occasions when I gained the impression that he was
constructing an answer to a question designed to place
his case in the most favourable light. He gave his evidence
in a studied way. He was, overall, not an impressive
witness.

Further, one can be too ‘even’ and not emotional enough as

shown in Cross v Hughes and Anor (2006) when Ms Cross's
Table 2 testimony failed to match that of the ‘reasonable victim’
Consistency of complainant and respondent, outcome, SDA sexual expected by Federal Magistrate Lindsay.
harassment cases, 2001–2006
I did not find her to be an impressive witness. That is not
Complaint Complaint
upheld no. dismissed no. to say that I found her to be untruthful. She simply did not
Complainant consistent; respondent 2 0
provide any particularly convincing or coherent evidence
inconsistent in relation to the impact of these events upon her… That
Complainant consistent; respondent 1 1 is not to say that I do not accept that they had some
consistent impact. It is simply to say that she did not impress in the
Complainant consistent; respondent not 1 0
witness box as someone who was profoundly affected by the
mentioned
Complainant inconsistent; respondent 0 5 events described (emphasis added).
consistent
Complainant inconsistent; respondent 6 1 In contrast, a more believable presentation by a complai-
inconsistent
nant Ms Hughes (and her former partner Mr Cook) was
Complainant inconsistent; respondent not 0 1
mentioned described in Hughes v Car Buyers (2004) by Federal
Complainant not mentioned; respondent 2 0 Magistrate Walters:
inconsistent
Complainant not mentioned; respondent not 5 0 I was impressed by both Ms Hughes and Mr Cook. They
mentioned
responded to questions asked of them in a calm and
 Author's personal copy
342 P. Easteal, K. Judd / Women's Studies International Forum 31 (2008) 336–344
measured fashion. Although Ms Hughes became upset
whilst recounting events that had occurred during the
period of her employment with Car Buyers, she remained
focused and responsive to all questions.
And in Beamish v Zheng (2004):
Ms Beamish was a quiet and unassuming witness. Her
evidence was internally consistent and was given calmly
but with certainty.
Corroboration
In contrast to sexual assault, witnesses were common in
harassment cases; all but two in the Commonwealth case
sample. And, in the ACT, just one case went to conciliation in
which the complainant did not have a witness.
The absence of corroboration usually led to the matter
being declined in the ACT since it was ‘word against word.’
Similarly, as Table 3 highlights, when there was no
corroborative evidence in the Commonwealth matters, the
complaint was dismissed. In one such matter – Wong v Su &
Anor (2001) – Driver FM commented that the complainant's
evidence was ‘entirely uncorroborated.’ In the other, Zhang v
Kanellos and Anor (2005), although the respondent's
evidence was judged as unreliable, Driver FM dismissed
the complaint of sexual harassment, finding the complainant
to be even less credible:
…on Ms Zhang's account there were at least two
independent witnesses to the incident of alleged breast
squeezing who were known to Ms Zhang and who should
have been able to provide relevant and admissible
evidence. Ms Zhang did not call them. I draw an inference
that their evidence would not have assisted her.
Faced with conflicting statements or versions of what
occurred, and the ‘serious nature of the allegations,’ HRO staff
tended to rely on ‘supporting statements by witnesses to the
comments or the effects;’ in other words, ‘any information
that directly corroborates either version, or … partial
corroboration:’
I am bound to turn to witness statements that describe
contemporaneous knowledge of the reported incidents. In
this case a statement of a friend about a conversation that
Table 3
Corroboration and outcome, SDA sexual harassment cases, 2001–2006
Outcome Direct Indirect Expert No
corroboration corroboration corroboration corroboration
(n = 9) (e.g. witnessing (e.g. GP, (n = 2)
the effects) psychiatrist)
(n = 18) (n = 15)
Complainant 67% 78% 80 0%
upheld (n = 17)
Complaint 33% 22% 20 100%
dismissed
(n = 8)
Note: The total number exceeds 25 since in a number of cases, there was
more than one type of corroborating evidence offered.
took place shortly after the complainant began working
there.
Similarly, in the Federal Magistrates Court, the complai-
nant in Shiels v James (2000) was judged to be a credible
witness largely because of her daughter's testimony, which
corroborated many of the incidents that she had witnessed.
The daughter also testified to her mother becoming ‘increas-
ingly distressed’ at home as a result of the harassment:
Some of the evidence of Ms Shiels was corroborated by
her daughter Ms Bird whose evidence the Court unequi-
vocally accepts.
Such reliance upon witnesses both by the Federal judicial
officers and the ACT Commissioner is to be expected given the
difficulty in measuring one individual's credibility against
another.
The voice of an ‘expert’ may have more significant bearing
(see Table 3). For example, in Leslie v Graham (2002), a
psychiatrist gave evidence on behalf of Ms Leslie. Justice
Branson commented:
I note and accept the validity of the opinion expressed by
Dr Ellard that Ms Leslie's conduct, and the physical
symptoms which she described, were consistent with
her having experienced an incident such as that which
she described as having occurred…
This partial corroboration of Ms Leslie's complaint
appeared to help her succeed in her complaint.
And expert witnesses were particularly valued by the ACT
HRO:
Of particular significance to me is the statement by your
therapist that emotional and mental abuse she felt she
had to contend with daily.
It is interesting though that the consideration of expert
testimony may become the focus of deliberation. Thus, the
court in Ho v Regulator Australia Pty Ltd and Anor (2004)
heard expert evidence from Mrs Ho's consultant psychiatrist;
however, the magistrate appeared to prefer the two medico-
legal reports prepared by a psychiatrist for the respondents.
Driver used one practitioner's diagnosis of narcissistic
personality disorder to conclude that Mrs Ho imagined or
exaggerated many of the incidents. And, in Trainor v South
Pacific Resort Hotels Pty Ltd (2004), Federal Magistrate Coker
seemed to weight heavily the psychiatrist's report, which
highlighted the pre-existence of a psychiatric disorder, in
calculating damages.
Credibility through the eyes and ears of the beholder
Measurements of consistency, corroboration and credibil-
ity are not value-free. We each assess facts and ‘truth’ through
a screen of our ‘customised’ standards. Indeed, five of the
eight cases that were dismissed were presided over by the
same Federal Magistrate; he upheld the complaint in another
two matters. Is it that credibility or its absence may well be in
the eyes and ears of the beholder? As Taylor (2004b: 37)
 Author's personal copy
P. Easteal, K. Judd / Women's Studies International Forum 31 (2008) 336–344
identified in incest trials — ‘it was not uncommon to find
judges who had approached intrafamilial abuse cases in a
certain way.’ The individual gatekeeper can have a powerful
voice not only in individual determinations but also in
effectuating a change in the (sub) culture. The ACT HRO
Commissioner, Dr. Helen Watchirs, is an example in point. As
the findings in this article indicate she refused to subscribe to
any of the dominant myths and illustrates that the individual
can in fact feminize at least a tiny niche in the dominant legal
process.
Perhaps even more than in sexual assault, the legal test for
harassment itself in s 28 of the Sex Discrimination Act (as
provided above), with its emphasis upon a reasonable person,
is very open to that individualized screen with ample scope
for masculine constructs to be applied. According to Fiona
Pace (2003: 4):
Many commentators…argue that the reasonableness
standard is itself gendered; that it is male experiences,
views and perspectives that are embodied in the notion of
reasonableness and how it is applied.
In determining reasonableness, which is about the
determination of whether the behavior was sexual and
unwelcome and whether the complainant was in fact
humiliated and if so, the degree of distress experienced, it
seems that frequently, just as in sexual assault trials, it is the
identity, history and behavior of the complainant that are put
in the spotlight and evaluated. And why would this not be the
case? Like rape, harassment is a gendered offence with most
victims female; all 25 of the SDA sample and 40 of the 46 HRO
complainants. It is not surprising therefore to find the same
variables equated with credibility and similar attacks made on
women's credibility as identified in rape (Lievore, 2004),
partner rape (Easteal & Feerick, 2005) and incest trials (Taylor,
2004b). For instance, part of the test for sexual harassment is,
as we mention earlier, that the alleged mal-doer can
anticipate that their words or actions would cause offence
and humiliation. Those judicial officers who regard the
complainant's sexual history or their engaging in sexual
jokes as pertinent in determining whether behavior was
unwelcome and/or caused distress are reminiscent of the
judges who have queried the degree of harm or ‘a reaction of
revulsion’ that prostitutes or otherwise ‘unchaste’ women
could experience from rape (Scutt, 1992: 176).
Thus, young, Anglo and relatively chaste women who
present in a rational manner are more likely not to have their
credibility questioned. And we have noted that in our sample
of cases, corroboration, reporting promptly and consistency
each contributes to believability. The experiences of the
complainant in Wong and in Daley discussed earlier illustrate
how Federal Magistrates, like their rape trial brethren judges,
may expect victim witnesses to be able to particularise and
recite the finer points of their stories in the intimidating
context of cross-examination. Similar observations have been
made about sexual assault hearings and ‘a focus on minor
details, such as the precise sequence of events,’ which
overshadow and ignore the overall effects of sexual violence
on the victim (Easteal & Feerick, 2005: 319).
However, immediate reporting and consistency are likely
to be at odds with the victim's actual psychological response
343
to sexual assault and sexual harassment. The most likely
harasser is an individual in a position of power over the
complainant; about two thirds of the respondents in the ACT
HRO sample were employers or senior colleagues. The shame,
self-doubt and disempowerment a victim of violence experi-
ences are consequently coupled with employment-based
inequity. In addition, the ‘dominant’ expectation of reporting
and ability to particularise the details of the offence discounts
the frequent lack of a discrete event (that one could give exact
details about) that is central to harassment. It is often (as with
childhood sexual assault) a narrative of situational abuse:
ongoing inappropriate comments, questions and or other
behaviors, which make particularising problematic.
Therefore, in a myriad of conscious and unconscious ways,
evaluating witnesses may be affected by the gatekeeper's
beliefs about who tells the truth and how a real victim
behaves. Our study suggests that there is at least one
additional factor that might contribute to this evaluation
process. In four of the 25 SDA cases, the complainant had legal
representation whilst the respondent did not; in all of these,
the complaint was upheld. In three the complainant did not
have counsel while the respondent did; the complaint was
dismissed in all three. (In the remaining 18 both had counsel.)
These cases suggest a nexus between representation and
credibility if one party has legal counsel and the other does
not. Perhaps a legal adviser can guide the complainant
through the reasonable screen and present their evidence in
what is seen as a more plausible way.
Acknowledgments
The authors would like to thank the HRO for making
archived files available and participating in discussions. The
views presented though are those of the authors who accept
responsibility for the work. The HRO project was funded by a
small grant from the Department of Business, Law and
Information Sciences (BLIS) at the University of Canberra.
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