‘The trial has prompted a deep anger within the theatre community. Its reverberations will echo for a long time’: Alison Croggon looks at the Geoffrey Rush defamation trial and its inevitable connections to #MeToo
As a rule, the arts only make it to the headlines when there is some kind of scandal. An Oscar-winning actor suing a major news organisation for defamation over accusations of sexual harassment is precisely the kind of scandal that qualifies.
As we all know, Geoffrey Rush is suing Nationwide News, the publisher of Sydney’s Daily Telegraph, over a series of articles that claimed that he was accused of “inappropriate behaviour” towards another actor during the 2015 production of King Lear at the Sydney Theatre Company.
They were published in November 2017, shortly after the Weinstein revelations rocked Hollywood, at the height of #MeToo media coverage, and a few days after #MeToo investigations by the ABC and Fairfax Media claimed their first celebrity scalp, Don Burke.
As I write this, the final submissions are being heard in the Federal Court. The trial has naturally attracted a lot of public notice and impassioned discussion, both inside the Australian theatre community and outside it, and much of that discussion has shed more heat than light. It seems, at this point, worth taking a sober look at the story so far: what the trial is, what it isn’t, and what has been revealed during its course.
The Court Case
Despite public appearances, neither Rush nor his accuser, Eryn Jean Norvill, is on trial. This trial won’t determine whether or not Rush is guilty of sexual harassment. Justice Michael Wigney’s job (there is no jury) is to establish whether Rush was defamed by the Telegraph’s articles.
Rush, who is strenuously denying the allegations, claims that his reputation has been irreparably harmed by the articles. In preliminary hearings in February, it was also revealed that after the articles appeared, he stepped aside as president of the Australian Academy of Cinema and Television Arts. During the trial, Rush’s barrister, Bruce McClintock SC, told the court that Rush earned $1.5 million from July 1 to November 30 last year, but had made only $44,000 since then.
Rush is seeking aggravated damages, claiming he was exposed to hatred, ridicule and contempt because the newspaper connected the allegations against him to Weinstein. The Daily Telegraph is defending the articles on the basis of truth. It amended its defence earlier this year from the highly technical defence of “qualified privilege” after the woman at the centre of the allegations, Eryn Jean Norvill, belatedly agreed to give evidence in the trial.
‘Rush isn’t a major figure in Australian theatre for no reason: he is one of the most gifted actors of his generation. But so is his accuser, Eryn Jean Norvill’
Unlike the stories that brought down Weinstein, which were underpinned by months of investigation and backed up by interviews, the Telegraph rushed to publication with no on-the-record accounts from accusers. Norvill didn’t speak to the newspaper for the story.
In February, the Federal Court heard that the Telegraph’s sources for the Rush stories included an anonymous email, posts on social media, the Sydney Theatre Company’s executive director Patrick McIntyre, at least three confidential sources, and actress Sarah Monahan. It’s unclear what the anonymous email refers to, but since the trial began an internal STC email recounting Norvill’s claims of sexual harassment was tabled as a Federal Court exhibit.
The trial became sensational news last week when a phalanx of highly respected figures of Australian theatre – Robyn Nevin, Neil Armfield, Judy Davis – testified in support of Rush, and Norvill testified for the Telegraph.
Norvill played Cordelia to Rush’s Lear in the production. Over eight hours of testimony and cross examination – which, as journalist Lane Sainty commented, “is a long time for someone who is not on trial or being sued” – she steadily adhered to her account that she had been sexually harassed by Rush. Three of her colleagues in the rehearsal room, including director Neil Armfield, told the court that they saw no sign of such harassment.
To say this case is complicated is to employ considerable euphemism. From several comments by Wigney, it seems that the question of whether the articles were defamatory is turning in part on whether the Telegraph had sufficient evidence at the time of publishing the article to justify what they printed. That is a different question to whether the claims of sexual harassment are true, although the Telegraph’s argument that their story was substantially true is, of course, central to their case.
It seems most likely that the Telegraph will lose this case. Another remote possibility is that the Telegraph loses, while the substance of its claim – that Rush behaved “inappropriately” during the production of King Lear – is found to be true. They could lose it simply on the basis of their notoriously ugly punning headline. There’s a precedent: in 2015, Fairfax lost a defamation case brought by then Treasurer Joe Hockey on the strength of the headline of the story, which was found to have been motivated by “malice”, although the story itself was found not to be defamatory.
Whatever the outcome, the evidence presented during the trial presents a more complex picture than the squeaky clean public image Rush has up to now projected.
Some evidence hasn’t been admitted to the case, although it has been reported as part of the proceedings. Actor Colin Moody, for instance, was refused as a witness, although he backed Norvill’s claims. In preliminary hearings the court heard that he would testify that director Neil Armfield had commented that Rush’s antics over Norvill’s body were “bordering on creepy”. (Other cast members appearing for Rush denied this happened.)
Arguably the most damaging evidence is an internal STC email tendered as an exhibit in the Federal Court. This particular email was not admitted to court as it is hearsay, but is tendered as an exhibit. Under cross examination, Norvill said that some details of it were incorrect.
In the email, which asks for a meeting with senior executives at the STC to discuss Norvill’s claims of sexual harassment by Rush, Annelies Crowe, then company manager, talks of “rumours about Geoffrey’s behaviour in the past”. Later, when she saw the actor was upset on closing night of the play, she said: “Knowing Geoffrey’s reputation I’m afraid I’d assumed he may have been the cause but didn’t want to push her at the time.”
These comments imply that Rush had a “reputation” and was the subject of “rumours” which were well enough understood inside the STC not to be explained to its executive director Patrick McIntyre. However, Justice Wigney said during final submissions that he didn’t give any weight to the email, as Ms Crowe hadn’t been called as a witness. “It could be his reputation for having bad body odour for all I know,” he said in court.
There was also the last-minute appearance of “Witness X” with an 85-page brief of evidence alleging acts of a “sexual nature” which Wigney said could help to establish proof of three general imputations at the centre of the case, including that Rush was a “pervert” and had engaged in “inappropriate conduct”.
As with Moody, Justice Wigney refused the amendment by the defence for several reasons. In neither case was the truth or otherwise of the witness’s evidence pertinent to why the judge refused their testimony: he considered the evidence either irrelevant to the case, or unnecessarily complicating. He said that Witness X’s testimony concerned a different production at an earlier date, whereas the case before the Federal Court pertains specifically to King Lear, and so was irrelevant to the defamation suit. The witness’s identity and the details of her evidence are under a non-publication order.
Among the reasons for the refusal of Witness X was the added stress on Rush and his wife, Jane Menelaus, if the trial was adjourned until next year, as would be the case if the witness was admitted, and the Telegraph’s oft-amended defence, which he said was prejudicial towards Rush’s case.
He had a point: the Telegraph’s defence has been chaotic, with multiple amendments. In April this year, Nationwide News even attempted a cross claim against the Sydney Theatre Company, prompting Wigney to comment that a newspaper attempting to sue its own source “is, to say the least, unusual”.
Personally, I have no doubt that many of the newspaper’s difficulties with its defence stem from the implacable hostility much of the theatre community holds towards the Telegraph, especially after they published the story without Norvill’s consent.
Nevertheless, the trial summons irresistible echoes of Oscar Wilde suing the Marquess of Queensberry. And there are similar elements of tragedy. Rush isn’t a major figure in Australian theatre for no reason: he is one of the most gifted actors of his generation. But so is his accuser, Eryn Jean Norvill.
#IstandwithEJ: the surrounding material
This real life courtroom drama has been a flashpoint for often divisive discussion about sexual harassment and abuse, both inside the theatre community and, because of Rush’s international celebrity, beyond. After senior industry figures testified for Rush early last week, a palpable wave of anger ran through the theatre community. It intensified after a brutal cross examination by Rush’s barrister, Bruce McClintock SC.
On the one hand, there were those who defended Rush against “evidenceless” allegations and who were outraged that “their” theatre had been described by Norvill as a place that was rife with sexual harassment and bullying. On the other, a hashtag started trending on Twitter, mostly tweeted by theatre insiders: #IstandwithEJ.
The wave of solidarity on social media is, in part, a recognition by many people of the impossible double bind of sexual harassment. It’s impossible to separate this trial from #MeToo, although the Telegraph’s stories on Rush didn’t emerge from that movement.
The trial unleashed a predictable hostility towards Norvill on social media. Women who speak publicly as she did, especially about popular figures, know they are risking all sorts of abuse, up to and including rape and death threats. I have seen a lot of claims that Norvill is lying “for attention”, or that she is being paid by the Telegraph. Many people seem to believe this is a #MeToo case and that Norvill is bringing charges against Rush, rather than being a witness in a defamation case brought by Rush himself.
The #IstandwithEJ hashtag (full disclosure: I also tweeted it) expressed a lot of suppressed anger about the widespread problem of sexual harassment, abuse and bullying in Australian theatre. Last year, an MEAA survey revealed that at least 40 per cent of those surveyed had experienced or witnessed sexual harassment in the theatre. 82 per cent of the respondents agreed that sexual harassment, criminal misconduct and bullying is a serious problem in Australian theatre.
‘The wave of solidarity on social media is, in part, a recognition by many people of the impossible double bind of sexual harassment. It’s impossible to separate this trial from #MeToo, although the Telegraph’s stories on Rush didn’t emerge from that movement.’
Of those who had experienced sexual harassment, 53 per cent said they hadn’t reported it. A major reason for not reporting (43 per cent) was that they were worried about professional repercussions, an understandable fear in an insecure profession like live performance. Of those who reported, almost half said their problem wasn’t handled well and in fact became worse.
There has been no strong public leadership in the Australian performance community, in marked contrast to the UK. The Royal Court’s artistic director Vicky Featherstone began the “No Grey Area” initiative less than a fortnight after the Weinstein revelations. As Featherstone said at the time, “We all knew about it”:
The reason I’m so angry is I’m so shocked that we’d got to this point and we’d all accepted it. We all knew about it! We. All. Knew.” What exactly did she know a month ago? “I knew that pretty much every single woman I know had suffered sexual harassment in her life. I knew that, and I’d just accepted that. I’m hardwired to accept it. I’m a feminist, and when I talk about it, it shocks me. But I had literally accepted it, like I accept that we have a class system. I’d accepted it like I accept that there are homeless people. And that’s just bizarre – but it’s what we’ve done. And then suddenly someone speaks out, and you start to think, why are we as a society accepting of this situation?
It isn’t surprising, given both the seriousness of the problem and the inadequacy of institutional responses, that Norvill should become a symbol, not only of the problems within the industry, but of the silence that surrounds them. As Norvill took the stand alone, in full knowledge that she would be humiliatingly grilled about intimate details of her personal life and in the face of the public disbelief of her respected senior colleagues, she inevitably began to represent much more than her own case.
As Anne Marie Peard put it in ArtsHub: “She’s believed because so many of us have heard about, witnessed and experienced this kind of behaviour in theatre and so many other workplaces.” Those of us who have experienced or witnessed sexual harassment recognise the disempowering mechanisms of denial, such as the suggestion that harassment isn’t harassment (despite some very clear legal definitions), the notion that it wasn’t serious or that the victim invited it. We’ve seen these claims at work in the trial.
Norvill, like Mark Leonard Winter, who testified in support of her evidence, is one of the rising stars of Australian theatre. Over the past few years, she has built a formidable career on our main stages. By testifying – which she was not obliged to, as this is a civil case – she put her career at risk. Winter, who played Edgar in the production, also testified knowing that he could imperil his career. He told the court that he saw Rush touch Norvill’s breast and make groping gestures over her prone body, although details were disputed in cross examination.
Both these actors clearly were speaking reluctantly. Norvill didn’t co-operate with the Telegraph for their story: as the Sydney Theatre Company said in an email to the journalist, Jonathan Moran, the day before the first story was published, Norvill was “fragile” and “highly distressed” at both the situation and the media attention, and added: “It is her story to tell and she should have the right to tell it at a time of her choosing – and on her own terms.”
It’s doubtful that recounting her story in the full glare of international publicity as part of a defamation trial is Norvill’s “own terms”. At the same time, once Rush pursued defamation action against the Telegraph, Norvill ran out of choices. The Federal Court became the only forum in which it was possible for her to tell her side of the story.
The wave of support also speaks to Norvill’s strength and credibility as a witness and her industry reputation for integrity. As has been well documented, Norvill never intended to go public: she wished her complaint to be dealt with discreetly within the company. In speaking as part of the Telegraph’s defence, she had everything to lose and nothing to gain. In the witness box, she was unwavering.
Norvill was aware of the significance of her testimony: she knew that it wasn’t just about her. She amplified her personal experience to include a condemnation of what she called “complicity” in Australian performance culture. “There was a culture of bullying and harassment in that room and in my industry,” she told the court. “There are bullies and sexual predators, and sexual harassment happens in the workplace, and it happens often, and it happened in that room, to me…There was a level of hierarchy that kept that level of fear and silence in place.”
It’s clear that for Norvill the trial has been humiliating. Barrister Sue Chrysanthou, acting for Rush, questioned her motives, telling the court that Norvill had told “a lot of lies” and that her evidence was “rife with contradictions, inconsistencies and recent inventions”. Under cross examination, Rush’s barrister McClintock pressed Norvill to admit, on the evidence of some personal texts, that she was sexually interested in Rush. Lane Sainty reported that in reponse, Norvill said under her breath: “This is disgusting.” When McClintock put it to her several times that she was lying, she steadily adhered to her story.
“Mr Rush never behaved inappropriately to you at any time during the production of King Lear. Do you agree?” McClintock asked.
“Unfortunately, Mr McClintock, I do not agree,” said Norvill calmly. “He did.”
Norvill, dressed in a white shirt and black suit, with her hair pulled back in a bun, was sitting in the witness box in a large courtroom in Sydney, watched by 13 lawyers; about 15 journalists; tens of onlookers; a judge; and Rush himself, sitting with wife Jane Menelaus at a table about five metres from Norvill, wearing a pale grey suit that matched his trademark curls.
McClintock continued: “And when you give that answer, you’re lying, aren’t you?” he asked.
Norvill looked at the barrister for a long time. The courtroom was silent. And then she turned away from him, to look Justice Michael Wigney square in the face.
“Your Honour, I am not lying,” she said.
Unlike the US and the UK, Australia has repressive defamation laws that play a major part in stifling public discussion around sexual harassment and abuse in the workplace. The Rush suit last year was swiftly followed by a suit by Craig McLachlan against Fairfax Media, the ABC and his former co-star Christie Whelan Browne, after the publication of allegations of multiple sexual offences.
These laws make it difficult enough to publicly out abusers. But by running a poorly sourced story without the necessary careful, in-depth investigation and prompting a law suit, the Telegraph throttled many other investigations. No media organisation wants to risk losing millions of dollars, even if they can establish the claims are true. And very few victims are keen to risk a lawsuit like that Browne is facing. (Norvill is not being sued by Rush).
Norvill said she felt “belittled” and demeaned by Rush’s behaviour. According to the legislation, unlawful sexual harassment in the workplace includes staring or leering; unnecessary familiarity, such as deliberately brushing up against someone or unwelcome touching; or suggestive comments or jokes. Norvill told the court that all these things happened to her. Tom Blackburn SC for the defence said in his closing statement that Norvill was an “utterly honest” witness who stood to gain nothing except “stress and anxiety” by testifying in court.
Even examining the testimony with a narrow lens, only taking into account details conceded by both sides and ignoring most of Norvill’s evidence, the behaviour she described fits the legal definition of sexual harassment in the workplace. Sexual harassment is, of course, not merely about one text, or one gesture. It’s about a persistent series of behaviours that violate another person’s chosen boundaries. Contrary to common belief (among men in particular), women tend to be remarkably robust in brushing off male awkwardness or fumbling behaviour. The key word in harassment is “unwelcome”.
‘Tom Blackburn SC for the defence said in his closing statement that Norvill was an “utterly honest” witness who stood to gain nothing except “stress and anxiety” by testifying in court’
Among the undisputed evidence is Rush’s concession in court that he may have called Norvill “yummy” or “scrumptious” during rehearsals. In pre-publicity for the show, Rush told the Sydney Morning Herald that, after seeing Norvill play Ophelia, he “developed an immediate stage-door Johnny crush.” He added: “But you won’t print that, will you?” Under cross examination, Norvill said this made her “uncomfortable”. For reference, the Merriam-Webster definition of “stage-door Johnny” is “a man who frequents a theatre for the purpose of courting an actress or chorus girl”.
Also undisputed is a text that Rush sent Norvill, accompanied by a winking emoji with its tongue hanging out. It said: “I was thinking of you (as I do more than is socially appropriate)”. However, Justice Wigney commented that he failed to see the relevance of this evidence. “I have to confess I struggle to see the sinister aspect of this,” he said. “Maybe it’s just me.” He also commented that while he wouldn’t call anyone in his office “yummy” or “scrumptious”, maybe the rules were different in the theatre. “I’m a boring lawyer, and Mr Rush is an actor in a theatrical workplace where people use florid language.”
Mr Blackburn responded that “in a modern workplace it’s just inappropriate”. As one non-theatre person commented on Twitter, there is no workplace in which that would be considered an acceptable text to send a junior colleague. It’s no more appropriate in a rehearsal room or on a stage than it is in an accountant’s office. It’s worth remembering here that far from being a naive ingenue, Norvill is an acclaimed actor with a decade of experience in the rough and tumble of rehearsal rooms.
According to Norvill, she asked Rush to stop touching her at least twice during the course of the play, to no avail. She told the court that his behaviour was “enabled” by the people in the room. Armfield, Nevin and Helen Buday testified that they saw no sign of inappropriate behaviour. However, one legal observer commented that he was “having difficulty reconciling Nevin’s answers in evidence at the Rush trial with the texts she sent to Eryn Jean Norvill”. There is certainly a discomforting dissonance between Nevin’s testimony and the private texts. Perhaps Norvill was correct when she said that it’s a generational thing, that behaviour that she thought was intolerable and demeaning was considered by some older colleagues to be just part of the job.
As with everything that involves human beings, the issues around sexual harassment are complicated and often murky. Perhaps in the theatre they are particularly vexed. As Winter said during the trial: “There’s always a tendency [in] this to paint people as black and white … people aren’t just black and white; Geoffrey Rush is a respected figure and a friend.”
Norvill also said she believed Rush was a friend. And maybe this is what goes to the heart of the entire issue. As McClintock’s cross examination makes clear, the friendship and admiration Norvill said she felt for Rush was transformed into a sense of complicity and shame.
There’s no neat moral to be drawn from this shabby story. What happened in the Federal Court demonstrates once again that a defamation trial isn’t the place to resolve issues of workplace sexual harassment. The set up is adversarial, and the truths a trial pursues are not necessarily the truths that lead to solving or even revealing the problem. The court is a field of legal precisions that truncate the complexities and contradictions of human behaviour, and it affords little space for these complexities to be unwound and resolved.
It’s clear that Eryn Jean Norvill was let down at every step: by the Sydney Theatre Company’s inadequate protocols at the time of the complaint and by the Telegraph’s willingness to ignore her wishes and well being in favour of a sensationalist story. A lot of industry anger is being directed towards the STC, for revealing the existence of the complaint against Rush despite Norvill’s desire for it to be kept confidential.
I think some of this anger is misdirected: if the STC lied and denied the existence of the complaint, they were at risk of being accused of a cover up if it subsequently came to light. As documents in court revealed, the Telegraph wasn’t the only media organisation investigating this story: the Australian had also inquired about the STC incident. At least two other news organisations are believed to have begun investigations.
What’s also indisputable is the effect on the major players in the drama. Rush’s wife Jane Menelaus testified that she had watched her husband “be destroyed” by the allegations and at one point left the court in tears. The judge commented several times on the stress suffered by the plaintiff and his wife, but there are no reports of his noting the stress that Norvill – who never sought this kind of public notoriety – was also under.
At this point, it seems more likely than not that Rush will win his case. But the trial’s harsh exposure of the power relations in Australian theatre has prompted a deep anger within the community and more widely throughout the Australian entertainment industry. Its reverberations will echo for a long time. And it seems to me that whatever the outcome, nobody wins. Except the lawyers.
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