#MeToo: Sexual harassment isn’t even a crime

February 1, 2018

I remember how proud I was to be chosen as a professor’s teaching assistant—at least until the day the professor put his arm around me and kissed me on the cheek.

I remember the first time I thought I’d gotten my dream job—until the boss “joked” that I was only hired because I’m a woman. Until a man I worked with told me I looked nice and then put his hands in my jacket collar to expose more of my chest. Until someone I thought was my friend started commenting on our “hot little bodies.”

By 2017, we thought the tide was finally turning for women—until Donald Trump bragged about “grabbing pussies” and then got elected anyway.

Sexual harassment is not typically a criminal offense. Title VII of the Civil Rights Act allows civil lawsuits based on workplace sexual harassment that creates a “hostile work environment.”  

In Meritor Savings Bank, FBD v. Vinson (1986), the United States Supreme Court held that, “[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’"  

Right here in our own Northland backyard, this was expanded to allow for class action lawsuits in Jenson v. Eveleth Mines (1988).

But there is inconsistency in how these laws are applied, and it’s unclear whether Title VII claims even work. The Meritor court noted that a plaintiff’s “sexually provocative speech or dress...is obviously relevant” to whether she found the harassing behavior unwelcome.  

A November 29 op-ed  in the New York Times—memorably entitled “Boss Grab Your Breasts? That’s Not (Legally) Harassment”—discussed the failure of Title VII to effectively combat sexual harassment in the workplace.

The Washington Post noted on November 17 that many studies have shown why and how workplace sexual harassment trainings fail to curtail the problem.

Maybe researchers will eventually find effective workplace training methods, but sexual harassment has been with us forever, and it is difficult to change a culture through litigation—it’s been 60 years since Brown v. Board of Education, and just look at how segregated the Twin Ports still remains.
If Title VII and other civil remedies are failing to significantly affect sexual harassment, should we make it a crime? Criminal law (arguably) works (under certain circumstances) to deter unwanted behavior with punishment—jail, probation, fines.

Some acts that we might call sexual harassment, such as intentionally touching an intimate part of another’s body in order to humiliate her or to gratify oneself, is already a criminal offense in Wisconsin. Additionally, general harassment laws prohibit “subject[ing] the person to physical contact or attempts or [threats] to do the same,” if done with intent and for no legitimate purpose. If “accompanied by a credible threat” of death or bodily harm, it’s a crime.  

So if Wisconsin chose to interpret general harassment to include the definition of sexual harassment as already codified in Wisconsin employment law, then sexual harassment could be prosecuted.

But why go this route? Do we really want law enforcement to enter businesses and arrest people? Until now, we have said no.

But, then, there was a time we didn’t want police to interfere in domestic violence or child abuse.  There was a time we thought sex trafficking was “victimless.” There was a time the law regarded “marital rape” as a contradiction in terms, and when a woman’s “virtue” was legally admissible evidence.

The law has evolved on some issues of gender inequity, and perhaps it is time to reexamine our legal approach to sexual harassment, too. Criminalization is an ethical judgment that we, as a community, will not tolerate the behavior in question.  
And a criminal charge can be used to effectuate social change without necessarily imposing punitive sanctions. Restorative justice—in which the victim is able to address the defendant, who is encouraged to listen, empathize, and apologize—is a nationally successful model that reduces recidivism.

Restorative justice could be a good way to address sexual harassment with criminal law, combining the justice system’s ethical condemnation of harm, with the desire to rectify and, ultimately, stop the harm.

The #MeToo movement has made it painfully clear that current “solutions” are not working. Twenty-six years after Anita Hill described being forced to listen to the lewd fantasies of Clarence Thomas—a man we then placed on the Supreme Court anyway—perhaps it is time to criminalize this abhorrent behavior.

The information and opinions in this column do not constitute legal advice nor establish an attorney-client relationship. For your legal needs, please consult an attorney about the specifics of your case.

Leslie Dollen was a criminal and juvenile defense attorney for over 23 years with the Wisconsin State Public Defenders office. She  is a Legal  Studies instructor at  the University of Wisconsin-Superior, and is a community activist around sexual assault, domestic violence, and reproductive health.

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