Do we, consciously or unconsciously, expect more of women in sport?
I have been inundated this week with calls from parents, players, and club officials about a recent first-grade WNPL football game in which a well-known W-League professional player was given a red card for "offensive, insulting or abusive language".
The comment, I am told, was: "It has to go both ways ref, this isn't fair. Who hired you?"
That resulted in her suspension from the game and the following three matches, including the Canberra 2021 Federation Cup - the grand finale of sorts. Despite repeated requests from the club, Capital Football, which has the power to refer these matters to an independent tribunal, has refused to address the matter.
Many readers will have watched plenty of football games (AFL, NRL, soccer) and heard greater challenges than this, featuring much more "colourful language" - the difference being, the players were men. It made me start thinking - do we apply a different test to women, and is there a higher expectation placed on women to be politer, and less assertive?
The word "offensive" is a vague term, and it is impossible to provide a specific definition. What might be offensive to one may not be offensive to another. I think we can all agree on the extremes - racial vilification, derogatory terms, foul language, and the like - but something like "It has to go both ways ref, this isn't fair. Who hired you?"
My questioning led me to look to the NSW Summary Offences Act, but it was no help as it does not contain a list of words or terms that may be considered "offensive". Next I looked at the common law. In 1951, Justice O'Bryan of the Victorian Supreme Court, in the matter of Worcester v Smith, considered that something is offensive if it is "... calculated to wound the feelings, arouse anger or resentment or disgust in the mind of a reasonable person".
This test was further clarified in 1966 in the ACT Supreme Court case of Ball v McIntyre, which involved a war protester with a placard that read "I will not fight in Vietnam". Justice Kerr said conduct can be "hurtful or blameworthy or improper", and offend "against standards of good taste or good manners", but that may still not amount to offensive conduct under the criminal law. His Honour went on to explain that the hypothetical reasonable person is "reasonably contemporary", and cannot be too thin-skinned.
In a more recent case in the NSW District Court, a well-known Sydney activist, Danny Lim, known for wearing sandwich boards that express his distaste for federal politics in a "colourful manner", had his conviction quashed on appeal when the court found it had not been proven that "a reasonable person considering all of the circumstances of the case would have had a significant emotional reaction such as anger, disgust, resentment or outrage to the appellant's conduct". His Honour further said that a "hypothetical reasonable person", according to case law, "is reasonably tolerant and understanding and reasonably contemporary in his or her reactions". His honour concluded by saying offensiveness should be limited to "the high end of the range that could be considered 'offensive'."
So what do other football jurisdictions have to say on the issue of offensive language? Well there is not much out there, but in 1998, punishment for specifically using bad (foul) language was taken out of the UK's Laws of Association Football. The wording of the sending-off offence was changed from "uses foul or abusive language" to "uses offensive, insulting or abusive language". Sound familiar? The difference is, the UK (unlike Capital Football) developed a "bad language mapping" Venn diagram, colour-coded for tolerance levels, to assist referees, players, and clubs to deal with the issue. Bad language alone was no longer sufficient for an automatic sending off. "You must be joking ref" and "you're blind" are helpfully shaded green, indicating a warning is the preferred course of action.
As Julian Carosi writes in a document accompanying the Venn diagram, which was last updated in 2007, "it is not the words alone that create an offence in this more tolerant society, but both the words used AND the ambience in which they are delivered and meant".
So, back to the comment at hand: "It has to go both ways ref, this isn't fair. Who hired you?"
Applying the reasonable person test, and referencing the bad language mapping Venn diagram, was the W-League player's comment offensive, or do we have different expectations when it comes to women's behaviour in the game?
I'll leave that up to all you "reasonable people" out there. What I will say is that Capital Football made a big mistake by not referring this matter to an independent tribunal to test all the evidence in the matter. What we are now left with is a void (often filled by speculation and gossip, and questions remain over what is "offensive", and whether those rules are applied equally to men and women.
- Leisha Lister is a Canberra-based independent legal professional whose work focuses on access to justice for the poor, as well as legal issues relating specifically to women and children. The views expressed in this article are her own.