Everyone take a deep breath and settle in. The sexual harassment and abuse accusations and admissions involving Harvey Weinstein, Louis CK, Kevin Spacey, Roy Moore, Roger Ailes, Bill O’Reilly, Al Franken and many more are just the beginning. The Anita Hill testimony about then-Supreme Court nominee Clarence Thomas first made it a national issue. Now finally sexual harassment and abuse are no longer being seen (when seen at all) as a problem of individual behavior but as a systemic issue that pervades all workplaces and social encounters, not limited to any political or religious affiliations and affecting people of all sexual identities and orientations. We have learned that those who have been mistreated have not felt safe in talking about their experiences and that those who have mistreated them have not received clear signals about consent. We are at the very beginning of further revelations, some certain to be shocking in both the details and those responsible (or irresponsible).
To help with that process, here is a brief primer, based on my experience working on a dozen sexual harassment cases early in my legal career, which ranged from “he’s a loathsome creep” to “she is nuts.”
Talking about sexual abuse and harassment
1. The presumption of innocence extends to the accuser as well as the accused. Do not attack the accuser based on her (or his) personal life or political affiliations. Sexual abuse and harassment are intensely traumatic. Do not add insult to injury for your own political agenda or because the alleged behavior seems icky or creepy and therefore hard to believe.
2. Not all sexual abuse and harassment is equally serious and our conversations need to reflect that. People may differ in their assessments of relative harm and culpability, but we should all agree that the very worst cases are those where the victim said no or was not able to consent due to age, relative power, or impairment like drugs or alcohol. A pattern of abuse for humiliation or sexual gratification, or a quid pro quo required for an employee’s professional advancement, are more significant than a crude “joke” or poorly judged flirtation. There’s a difference between these comments: “I like your sweater — where did you get it? I’ve been looking for one like that for my wife.” “That’s a pretty sweater.” “That sweater really shows off your figure.” “That’s a pretty sweater, oh, and I can feel how soft it is, too.” Sexual harassment law includes prohibition of a “hostile work environment,” which can mean a culture of explicit jokes and insults or nude photos on a calendar hung in the office.
Also relevant: did the accused accept responsibility? Apologize sincerely? Make efforts to be accountable? That makes a difference, too.
3. Whataboutism is never a valid response. While we will need to puzzle through complicated fact patterns to determine elements like consent, intention, and damage, saying “what about” is always a deflection that is insulting to the person who was abused and the person who is trying to determine what the consequences are. Examine each case on its merits.
4. Related to the point made in #3 above, it is essential for the credibility and personal integrity of anyone discussing these issues to be absolutely consistent in those conversations, based on the (alleged) behavior and not on how we feel about the accused’s other qualities or his or her value to our own priorities. Be very sure you are going to apply the same standard to anyone who violates the rules before you go all Queen of Hearts and start yelling “Off with his head!” Abuse and harassment are non-partisan. So our conversations should be, too.
How to respond to sexual abuse and harassment
1. Ask “what is my relationship to this incident?” If you have a professional role to play, speak up quickly and respectfully. Make sure your organization has clearly communicated its policies and procedures and make sure that they are working as intended. This is an ongoing process. Handing out a rulebook or requiring employees to watch a video is not a one-time thing. While sexual abuse and harassment can be caused by or inflicted on anyone, it especially important to check with women and minorities to see if the policies are working for them even when no complaints are pending.
2. If you have no direct connection to the allegations, consider your options: to not vote for the politician, to not support the person or service/product that the person is selling, to write to express your concerns.
3. Beyond professional obligations and personal responses, consider whether any conversation you are having is helping the affected parties in any way. If it is just schadenfreude (the pleasure of another person’s failures) or gossip, don’t.
Preventing sexual abuse and harassment
1. Talk to your children. Teach them to develop strong boundaries, to respect others’ boundaries, and to have the courage to say no on behalf of themselves and others.
2. Talk to the adults around them. Does your son’s coach call the team “ladies” to get them to try harder? Speak up. Did a man on the street tell your daughter to smile or say he’d like to date her when she gets older? Speak up. Is the family watching a movie where the heroine fights the hero’s embrace and then melts into it? Speak up. Do friends or family tell your son he is strong and smart and your daughter she is pretty and nice? Speak up.
3. Model the behavior you want your children to emulate. They listen to the jokes you make and laugh at. They see you decide you don’t want to make a fuss. They want to hear what you have to say about what’s in the news and they want to know that they can trust you to hear what they have to say.
4. Chaucer had it right. If you want to know what women want, ask them. While men, too, can be harassed and abused, the majority of these cases involve women. Any effort to understand and prevent this behavior has to start with us. Ask the women in your office to create a task force to evaluate your company’s policies and recommend changes. Make sure they know they have a safe place to ask questions or raise troubling issues.
A married man who had had affairs with at least two women in his office once said to me, “Oh, you can’t even compliment a woman now. Everything is sexual harassment. How am I supposed to know what I can say or do?” I told him that if he would not want someone saying it to his daughter, he should not say it to the women in his office. And I like Anne Victoria Clark’s suggestion: just ask yourself, would I say/do this to The Rock?