by John Stevenson
The tsunami of “sexual harassment” charges, denials,
confessions, resignations, and summary executions has dominated the news lately
and is not likely to die out soon. It is
very troubling the way this is being handled by those in authority over the
accused, by his peers, and by the media.
High profile cases in the firestorm include politicians,
media figures, and Hollywood hot-shots. But
the common denominator of the accused harassers is not their occupation or
political persuasion---or that they are strikingly handsome and impeccably
well-mannered like Harvey Weinstein and Al Franken. Instead, what the accused have in common is
that they are rich or famous or powerful---or some combination of those
qualities.
So why do I dissent from the mad dash from accusation to
execution?
First of all, there seems to be no real definition of
“sexual harassment.” The U.S. EEOC provides a definition, but it is of no
practical use in assessing the situations that have been in the news. Here’s a
dictionary definition: uninvited and unwelcome
verbal or physical behavior of a sexual nature especially by a person in authority toward a subordinate (such as an
employee or student). From that, it seems that the
victim gets to define sexual harassment by deciding what is uninvited or
unwelcome.
Is it harassment to ask for someone’s phone number? To ask her for a date? To compliment her appearance? To take her arm while crossing the
street? To pinch her butt while you are
both drinking at a party? To steal a kiss? To tell a risqué joke? What about repeated occurrences as opposed to
a single incident? And so on….
There’s obviously a wide range of behavior, from a verbal
compliment to forcible rape. Some of
which almost everyone would agree is criminal, and some of which almost
everyone would agree is benign. To lump
these under the sexual harassment umbrella seems wrong. It elevates the benign to a punishable
offense and at the same time diminishes the recognition of truly heinous
behavior including rape.
My second problem is that there is no process for
adjudication of accusations. Or, where
there is a process, it is bypassed in the rush to punish.
If the alleged acts were criminal, and reported timely, then
the judicial system could be used to resolve the accusation. But for the most
part, the acts involved are either not criminal at all or else lack sufficient
evidence for prosecution.
So what’s left is a non-judicial process such as
investigation by an ethics panel. But
even that remedy is ignored---as with the accusations against Rep. John Conyers
and Sen. Al Franken. Both were pushed
into agreeing to resign their positions without recourse to the existing ethics
panels of the House or Senate.
Why is the rush to punish over-ruling the application of
investigatory procedures? Well, it’s
because the peers of the accused (and society at large, for that matter) are
afraid to be “on the wrong side” of the Me Too movement. The demand that the accusers must be believed
and the fear of being branded as sexist or misogynist has overwhelmed almost
all those who dare to question the lynch mob approach. (I would have called it a kangaroo court
approach, but decided that was unfair to kangaroo courts.) Thus the accusation alone requires
punishment. No investigation required.
To be fair, there are some dissenting voices but they are
generally not among the peers of an accused.
Fox News anchor Tucker Carlson speaks about this almost nightly, and
Paris-based freelance journalist Claire Berlinski has written an excellent article
“The Warlock Hunt” which you can find on line.
And Sen. Joe Manchin has spoken forcefully that his colleague Franken
should have received a fair hearing. But
such public dissenters are few.
My third issue is that most of the accusations describe long-ago
events. These are particularly hard to
defend against (which I guess does not matter since the accusation alone mandates
summary execution without investigation).
Some of the accused have claimed no memory of the events and, with a
decades-old incident, there’s even a chance this might be true.
A fourth problem is that what one person understood to be
consensual may not have been so in the mind of the other. Or if it was consensual, that consent may
have dissolved over time—or on “the cold gray dawn of the morning after.” Consent may indeed be in the eye of the
beholder, such as described in Donald Trump’s 2005 Access Hollywood tape, in
which he said “I don't even wait…when
you're a star, they let you do it…” Does that
describe consent or not? I suppose you
could interpret and argue it either way.
The fifth and final concern I will raise here is that
punishment is arbitrary---determined on-the-fly by the accused’s employer or
peers in their haste to outrun the lynch mob.
How could it be otherwise when there is no agreed upon and ranked list
of offenses?
No, I am not advocating in favor of sexual
harassers. What I do favor is defining
sexual harassment adequately, adjudicating accusations timely and fairly, and
tailoring the punishment to the offense.
But most importantly, the now-in-vogue presumption of guilt---that all
accusations are true---should be replaced by a presumption of innocence until
proven guilty.
That’s
my dissenting opinion.
