Elderly barrister out of tune with contemporary mores … Left without a chair when the music stopped … Spanked for sexual harassment of a junior female … Confusion about “comforting gesture” … Flippant remarks … Arm around shoulder … Unfunny jokes … Alan Zheng reports
When Raphael was first admitted to practice, the Cold War was raging and Menzies was sending Australian infantry to Vietnam. The year was 1965.
In 2017, 78-year old Raphael placed his arm around Ms X’s shoulder for between 10 and 20 seconds and kissed the top of her head in a conference room of the NSW Supreme Court. Ms X was a solicitor on the opposing side.
This “unwelcome act of physical intimacy” came after he referred to Ms X’s wedding ring and said:
“Won’t your husband get jealous because we are spending so much time together? He will think something is going on.”
NCAT heard that at this point Ms X’s voice then became shaky, she became visibly upset and started crying.
Before the tribunal, Raphael denied that his comment constituted unsatisfactory professional conduct, claiming it was a “flippant … silly … [and] innocuous” comment made by a “78-year-old grandfather” that “could not be taken seriously”.
The Council of the Bar ‘n’ Grill agreed, withdrawing that complaint and the tribunal accepted that Raphael’s remarks and conduct were intended to console and lighten the mood.
The barrister’s physical conduct was a different matter.
Although Raphael admitted his conduct constituted sexual harassment so as to fall foul of section 123 of the Barristers Rules, this admission came “late in the day” and he wasn’t always willing to admit this.
Three months after the impugned conduct, the explanation to the bar from Raphael was:
“The contact was minimal, in effect token and symbolic.
It is precisely the kind of thing which he would do, and indeed has done, throughout his life time as a comforting gesture in appropriate circumstances.
It was in that sense familial. She raised no objection at the time, nor would he have expected her to.
There is a world of difference between a comforting gesture and sexual overture. This could not have been perceived as anything other than the former. It is probably true to observe that, at least in more recent times, any tactile act however innocently intended, can be misinterpreted and he acted unwisely.
The first hint of any objection comes in the file note, the following day, in the context of what appears to be an explanation of the criticism made of her (and implicitly of her employer … by the Judicial Registrar).
It was no more than reflective of the innocent and innocuous (and indeed to many or most people, admirable) practices of a (long) life.
In my submission it falls well short of any conduct which could be considered of a sexual nature or bullying.”
The council didn’t let up, arguing Raphael’s written response indicated he was downplaying his conduct and was wilfully blind to characterise his conduct as a “comforting gesture”.
Plainly to the tribunal, Raphael’s conduct was of a sexual nature and unwelcome. A reasonable person, having regard to all the circumstances, would have anticipated that Ms X would be offended, humiliated or intimidated.
Sexual harassment, the tribunal found, comprehends a breadth of conduct limited only by human inventiveness and here, there was a “vast power imbalance” between the parties.
The tribunal did its research, citing an article in the Judicial Officers Bulletin by Kylie Nomchong SC which cited research that sexual harassment disproportionately affects women in the legal profession.
A 2019 survey by the Women Lawyers Association of NSW found more than 70 per cent of female lawyers who were surveyed reported being sexually harassed.
The tribunal was sympathetic to Raphael’s character references which indicated his “reputation for generosity and kindness” and that his conduct was a genuine attempt to comfort a young woman in distress.
One of the references said:
“I do not find all of his jokes or comments funny, especially when he pretends to be chauvinistic. I often groan and roll my eyes. David has been openly chided by his male friends for making statement[s] that are inappropriate. It is always an act and in no way meant to be crude or sexist …”
Another of the referees indicated Raphael had made inappropriate remarks in the past.
A former employee told the tribunal she had seen Raphael put his arm around people and give little kisses on the cheek or on the top of the head, adding “always it would only be a female”.
However, she understood Raphael’s motivation was to console these women and offer assistance.
The essence of the references was that Raphael’s intentions were good, but his jokes and brand of humour – which had been honed over the habits of a lifetime – were unwelcome.
There were a number of occasions on which women told Raphael that his “chivalrous inclinations are an outdated Edwardian concept”.
The tribunal, accepting that Raphael was totally ignorant of the likely effect of his behaviour, found:
“Mr Raphael needs to understand that this kind of conduct is not perceived by the vast majority of women as being comforting, chivalrous or even vaguely humorous. Sexual harassment of this kind has the potential to adversely affect a victim’s mental health and to dissuade her from continuing a career in the law.”
Raphael submitted that the tribunal should only order a one hour private counselling session with a specialist nominated by the council.
But this was considered inadequate. Lifelong habits couldn’t be corrected in an hour. A “minimum of eight hours” counselling was ordered. Until recently, Raphael had “virtually no appreciation of the seriousness of his behaviour or its potential impact”.
The council was left with the task of selecting a counsellor with “experience and expertise in behavioural change.”
This wasn’t Raphael’s first rodeo in the spanking bureau. He also engaged in unsatisfactory professional conduct in 2007 for negotiating a settlement agreement which contained a clause that had the potential to interfere with the proceedings.