Andrea Durbach is Professor of law and Director, Australian Human Rights Centre at the University of NSW. The Hunting Ground Australia Project (THGAP) has engaged the Australian Human Rights Commission and the Australian Human Rights Centre at UNSW to develop and implement the Australian Universities’ Sexual Assault and Harassment Survey—an independent survey on the prevalence, reporting experiences and responses to sexual assault and sexual harassment in universities. In addition, THGAP has commissioned the Australian Human Rights Centre at UNSW, led by Professor Durbach and Dr Rosemary Grey, to undertake the Policies, Protocols and Procedures Project, Strengthening Australian Universities’ Responses to Sexual Assault and Harassment.
That’s the important bit but there’s more. Andrea wrote a book, published by Allen&Unwin, about her experience defending 25 black defendants in a death penalty case in South Africa (Upington), has had her portrait painted for the Archibald Prize, been a subject of a documentary film and, in 2013, she was awarded the Australian Human Rights Commission’s Human Rights Law Award for her promotion and advancement of human rights in Australia through the practice of law.
You can read her bio here.
Full disclosure: Some years ago, we both took part in a spectacularly unsuccessful ‘performance’ at a friend’s wedding. (A film-literate onlooker called it a “true David Lynch moment” and under any other circumstances, I would have taken that as a compliment). Seeing the guests’ unexpected and shocked reaction, Andrea was the first of our posse to calmly suggest that maybe we should exit through a back window (too high, too narrow or we would have fled). We weren’t sure whether to laugh or cry, although I remember she was the first to laugh as we walked back into the offended crowd.
PJB: Tell me why, as a lawyer, you chose human rights as the area you wanted to work in?
AD: The predominant reasons were that I was born in and raised in South Africa and grew up there in the time (1960s–1970s) of apartheid ‘peaking’—if you can call it that—and then became a lawyer during its demise in the 1980s. It was a very frightening time characterized by a violent, brutal clinging on to apartheid by the state. My parents and my mother, in particular, were very aware of the horrors of the system; she made us aware of those horrors and the impact on ordinary people. I think I had a desire to try and right the system in some small way. South Africa was not only cut off from the world but from literature, from ideas—we really had to struggle to break through censorship to get to new ways of thinking. Then, in 1976, I was an exchange student in America where I was exposed to democracy and to a Bill of Rights that I hadn’t seen before.
PJB: So America and new ways of thinking about how the system might be, other than what you experienced in South Africa, offered you possibility?
AD: That’s probably true but I was also reacting against the horror of apartheid. The whole idea of justice underlying the law was very attractive to me but the more I practised law and saw it in action, my struggle became about how to bring law and justice together because in reality they were so far apart—not just in South Africa. So that was the possibility for me. The challenge was to pay tribute to that ‘noble aspiration’ of law— its potential to exact justice. To the degree that I was able to do this work was a consequence of working with amazing people who gave me those opportunities—clients and other lawyers in South Africa and abroad—to challenge laws that were pernicious and bring redress to people in need of remedy. I became very interested in systemic issues and that has taken me from being a practising lawyer to an academic lawyer: looking at how one influences policy not just the use of law to overturn pernicious laws or provide redress but to look at the structural issues underlying injustice. That’s what’s attractive about working in academia and working in policy and research.
PJB: What is your role as Professor, Director – Australian Human Rights Centre, UNSW?
AD: The primary focus of the Centre is doing research on a range of things: from human rights and cultural heritage to transitional justice to human rights and health to gender, which is a big focus of mine. I teach and bring in my background as a practitioner—I teach in the area of Public Interest Litigation and Legal Ethics. The Centre is also a forum for discussion on rights issues of contemporary importance and we pride ourselves on having a strong seminar program and an annual lecture; we invite people to talk about human rights from the position of different disciplines and different perspectives and from different countries.
PJB: I’ve been to talks at the Centre given by people from all over the world doing courageous and inspiring work—it’s an eye-opener. I wondered why we didn’t hear more, outside the human rights context, about these gutsy people… To The Hunting Ground Australia Project. How did you get involved?
AD: I was invited to a screening by Ian Darling who asked me if I’d watch the film with a view to becoming an impact advisor on the film’s journey on release in Australia. In 2011-2012, I had been appointed Deputy Sex Discrimination Commissioner at the Australian Human Rights Commission (AHRC). During that period I had invited the UN Special Rapporteur on Violence against Women, Rashida Manjoo—she’s South African—to participate in a Study Tour across Australia looking at violence against women. We travelled across Australia interviewing students, refugees, indigenous women and women from different cultural, religious, ethnic backgrounds, working women, women with disability, men who’d been involved in working with men who were perpetrators of gender violence. It was a very harrowing study tour. I’d known the statistics of violence against women in this country but to hear testimony of women who had experienced it was powerful but distressing. And then I came back to the university and started work on an Australian Research Council project that we’re still doing: Violence Against Women in Post-Conflict settings. I’d also been a consultant to the government on the treatment of women in the Australian Defence Force (ADF) and how institutional culture (as in the military) can be changed. So working with THGAP seemed an obvious step.
PJB: I read the findings of that UN report, and about Australia—of the women surveyed, 57% had experienced a violent or sexual assault across their lifetime. It’s huge.
AD: I think that’s quite a conservative figure. If you look at what violence against women is, and I don’t want to diminish it by what fits totally within the definition of violence, but there’s also non physical violence such as financial, emotional, and then, on the extremes of that spectrum is the sexual and physical violence that women experience. The statistics say that 1 in 5 women from the age of fifteen will have experienced violence at the hands of a man [ABS 2012]. That’s shockingly high.
PJB: What was the context in which you saw The Hunting Ground?
AD: I saw the film at The Shark Island Institute in Kangaroo Valley and very fortunately with Amy Ziering, the producer, present—I say ‘fortunately’ because we were able to talk and connect in a great way.
PJB: What did you talk about? I’d like to know absolutely everything but that’s probably a bit nosey; maybe just what’s relevant to THGAP?
AD: OK. One of the key points that came out of our conversation was about the universality of sexual violence and the specificity of context. I kept thinking: I’ve just been in South Africa and observed the impact of sexual violence played out in a very different way because of that country’s political, racial, historical context and yet the same themes are there as in The Hunting Ground— themes of power, of entitlement, of discrimination, of degradation, of long-term impact and trauma. That’s why what we take from the film has to be carefully contextualized because otherwise we start making assertions that are wrong and that’s dangerous. We have to be careful to avoid hyperbole that undermines the legitimacy of the message of the film. We almost have to strip the film of its context if it’s going to make sense in the Australian environment because if you don’t explain context you are at risk of losing the important message. That’s why I think it’s critical to adapt the message of the film in ways that speak to the Australian context and Australian educational sector or we risk losing their support. To Amy’s absolute credit, she understands the different context here so she’s cut a version of the film that doesn’t raise questions that are specific and relevant to the US.
PJB: And yet the stories of the young women in The Hunting Ground are not unique to the American experience. Former ANU student, Annie Dawson, who published her story in Mamamia in 2014 as an open letter to her university, wrote: “I’m writing this because you failed me. I was raped on your campus by a young man who got away with it because he knew he could.” Then, in 2009, there was the pro-rape facebook page put up in 2009 by some of University of Sydney’s St Pauls present and former students, which had nothing to do with the university or college but nonetheless the male students paraded their pride at anti-consent.
AD: It’s completely unacceptable.
PJB: What was your personal response to The Hunting Ground?
AD: I think no-one can but feel quite traumatized after seeing the film. Also possibly because I had listened to women who had experienced violence here and in South Africa and the terrible effects on their lives—to see the dismissing of the problem and the subsequent vitriol (also after the film’s release in the US) against these brave women was perhaps more unsettling than the attacks themselves. Women who have endured this violence say that—that the lack of an appropriate response, to not be believed and not supported is often worse than the assault itself. Or certainly exacerbates the harm.
PJB: And it explains, in part, why victims of sexual assault, including children, have kept their silence in the past and blamed themselves. What struck me, and what I go back to, even cognizant of all the victim-blaming that goes on, is how people who are unbelieving and attacking the survivors who tell their stories don’t seem to get the courage it must take to commit their story to film, in perpetuity, having had the experience of sexual assault and been ignored and/or dismissed by the people and institution who should be listening and taking care of them. It’s not something anyone would want to put their hand up for. The women in The Hunting Ground wouldn’t be on camera if their abuse had been dealt with justly.
AD: I think you can have two responses to the film. One is: this is so overwhelmingly wrong and unjust what has happened to the survivor that you become paralysed and turn away OR you can see it as therapeutic—the act of telling their account to people who hear them and engage with their truth. I think the two young women in The Hunting Ground who take up the Title IX action are doing something empowering with their pain and trauma—
PB: And helping others—
AD: Yes! This is a crassly compressed paraphrase of something Simone Weill said but I believe it to be true, “Make use of your suffering.”
PJB: That’s not crass, that’s cutting to the heart of the matter—
AD: But you can only do that, and that’s why this project (THGAP) is important, if you have people around you who say: I’m going to work with you to achieve that. I discovered this when I was doing work with the ADF. I was involved with developing a project with some amazing colleagues in the Federal government, which started largely because of Liz Broderick and David Morrison’s break-through work. Our objective was to employ the accounts or testimony of people who had suffered harm to create measures of redress for the victims but also, importantly, to change the structural conditions that allowed that to happen in the first place.
In hyper-masculinised environments—whether in the military or sporting worlds—harmful conduct is often facilitated, even rewarded because the institutions somehow see men honoured by that sort of conduct. If leaders and the institutions they represent respond with their fear because of institutional self-interest rather than seeing the broader interests of the organisation, you won’t make progress, you won’t achieve change. That’s why David Morrison was so critical, a pioneer in kick-starting systemic change in the ADF and shifting an environment that could be perceived as being complicit in the conduct to one that refused to tolerate it. That’s why I think this film brings such potential for the Australian universities to respond in ways which are pre-emptive, constructive, and show leadership.
PJB: In the American situation, my understanding having watched the film and read the US press on its release, is that the reluctance to provide the preferred environment of support you’re talking about—is directly connected to a fear about reputational damage and legal repercussions to the universities and in the long term, hits to their donations and enrolments. So the priorities were more about money and self-interest rather than dealing with the issue that these young women had been sexually abused and the campus culture was at fault. In Australia there hasn’t been any evidence of institutional cover up—
AD: No, but there has been evidence of denial and I’m pleased to say that that is starting to shift. There is still a self protective response but I’m convinced that because of The Hunting Ground and the campaign around it (THGAP) universities in Australia are not saying: What are you talking about, there’s no evidence of this; they’re saying: If there is evidence, How are we addressing it? How are we facilitating people to report these experiences … and being healed and redressed? How are we facilitating better relationships particularly in tertiary institutions? How are we executing our pastoral obligations as universities towards our students? That’s the potential, that’s the opportunity this film brings for us. Given the statistics on violence against women are as high as they are in this country, it’s not completely out of the question that these stats might be replicated to some degree at tertiary institutions. At the very least we need to do the research to see if that is the case. We have to start there. Universities which demonstrate some adherence to values that represent the public interest can only benefit; if we want to make universities centres of safe and productive learning—here’s our opportunity to do just that. And to contribute to research on a very important topic.
PJB: On that, can you tell me about the survey you are working for on THGAP?
AD: Our focus is to be pre-emptive and put good practice in place but we need the survey in order to start that process. The idea for the survey (Australian Universities’ Sexual Assault and Harassment Survey) comes from two sources. One is to get the evidence about the prevalence of sexual violence; the other is to say to students: If this happened to you, how would you respond? Are there mechanisms you can use? How do we build effective responses? So if there is a deficiency of reporting and therapeutic processes, of integration between the legal, psychological, medical needs of victims—we want to know about that. My sense is that there is a deficiency. We’re particularly looking at three categories of students: women, international students—because I think international students often come into an environment in which they don’t always understand the social dynamics and they’re very worried about how to fit in; anecdotally they’ve told us they are pushed into situations that ordinarily they wouldn’t be a part of but because they want to make friends or get approval that’s what’s expected of you. The third category is the LGBTI community on campus. Student representative councils and the National Union of Students (NUS) have done some excellent work. Their latest survey which reflects some of this data is very valuable. We want to build on this with them and my own university, which is very supportive and very keen to be involved in this project, and work with other universities across the country, to make sure that the student experience is addressed both in terms of reporting needs and redress and remedy.
PB: And you’re working with the Australian Human Rights Commission (AHRC) on this survey?
AD: We’re developing the survey with the AHRC and they will conduct the survey across over 30 universities.
PJB: Is it adapted from the Unacceptable Behaviour Survey which formed a key part of the Review into the Treatment of Women for the Australian Defence Forces?
AD: Yes. And we requested AHRC’s involvement because we want the survey to be conducted at arm’s length from the universities and by an independent, authoritative, objective expert in this area. The AHRC have enormous experience having conducted the ADFA survey to very good effect. If a university were to conduct the survey it might not attract the same legitimacy. We need an outside institution to conduct the survey of universities. The Australian Human Rights Centre at UNSW and the Commission will then analyse the results and draw on the analysis together with our comparative research to devise policies and protocols—almost templates of best practice—for use across the sector for every university and to be adapted as they see fit or devise their own.
PJB: The seed funding for the survey came from the THGAP (via Good Pitch² Australia)?
AD: It did.
PJB: Do you have enough money because that is a huge undertaking—rigour ain’t cheap.
AD: We also got some funding from the Faculty of Law, UNSW to bring on a research associate, Dr Rosemary Grey, to work with me on the project—
PJB: But how does the Commission pay for the work on the survey?
AD: Well, the design and research of the survey is one thing but the actual implementation of it across 30-39 universities is massive and then the collation of those results—just listening to how they conducted the ADFA Survey: they needed to bring in teams of trained statisticians—
PJB: Huge time and personnel costs—
AD: There will need to be additional funding for the process.
Header image: Andrena Pino, The Hunting Ground. Photo courtesy of Campus Project, LLC.andrea durbach, david morrison, elizabeth broderick, nus, the hunting ground australia project, White Ribbon Australia