Re: Sexual harassment
Betty, let me respond separately to the themes in your post.
First, the laws on sexual harassment. You write:
If we really believe that lying under oath is not an impeachable offense because of the "subject matter", sexual harassment, then we should be honest enough to recognize that as a culture we give no real credence to the legal concept of sexual harassment as actionable offense and should change our laws regarding same.
To which David Anderson responded:
The conclusion you have to come to is the public doesn't take the sexual harassment laws seriously or at least thinks they've gone way overboard.
It seems to me that we must bear in mind that "sexual harassment" law is relatively new; the term itself wasn't even coined until 1976. The original sexual harassment theorists (Catherine MacKinnon & Susan Brownmiller, both militant feminists) saw the issue as being more about power, rather than about sex, with the Powerful Male using sexual harassment to discriminate against and subjugate the Powerless Female. (BTW, this is the line taken by those who see the Monica Lewinsky case as being an example of sexual harassment, even though the sex involved was consensual.)
The law, however, has evolved in a different direction. Here are some excerpts from a story on a Sexual Harassment Symposium held at Yale earlier this year, which illustrates some of the confusion surrounding the whole issue. Please don't be deterred by the fact it was published by Salon Magazine. :-)
....The symposium -- a gathering of some 40 law professors, federal
judges and other experts on sexual harassment law including
Catherine MacKinnon, a Yale J.D./Ph.D. -- marked the 20th
anniversary of the publication of MacKinnon's monograph "Sexual
Harassment of Working Women." Groundbreaking though it was,
MacKinnon's work, with its dedication to a stark male/female
opposition, partly explains my distaste for the subject. On the one
hand, we have MacKinnon, for whom sexual harassment is just one
more instance of the principle that men unilaterally and everywhere
dominate women. She has written that "male and female are created
through the erotization of dominance and submission. The
man/woman difference and the dominance/submission dynamic
define each other." In her opening remarks at the conference, she
summed up her view of the achievements of sexual harassment law
in typically polemical terms: "Droit de seigneur is dead. Women are
citizens."
On the other hand, we have critics of sexual harassment like New
Yorker writer Jeffrey Toobin, who seem to think that the most likely
victims of sexual harassment are men oppressed by the law's
scrutiny of sexual behavior. These two positions form the shrill,
point/counterpoint battle of the sexes that is what I object to about
the public debate over sexual harassment.
In that context, the academic seriousness of the symposium made a
refreshing change. Its 72 hours of citations of case law, cautious
policy recommendations and illustrative anecdotes erred, in fact, on
the side of sobriety. The opening session took place in a
wood-paneled, mullion-windowed auditorium filled with nicely
dressed academics. In her opening remarks, MacKinnon's fellow
anti-pornography activist, Andrea Dworkin, voice trembling with
rage, decried the fact that "when [in prosecuting pornography] we
try to go after a bunch of pimps, everyone rears up and says no, no,
no." The audience clapped politely. Later, when appellate Judge
Guido Calabresi paternally reminded the audience that "women
have represented some things that have been essential to society,"
the audience clapped politely again.
But this very gentility, however soothing, belies the volatility of
opinion on sexual harassment. From the reverence with which
speaker after speaker at the symposium paid her or his respects to
MacKinnon, for example, you wouldn't have known that many
pundits view her as a cross between Jesse Helms and Valerie
Solanas. After all, MacKinnon first became publicly recognized not
for her work on sexual harassment, but for her anti-pornography
activism. The Minnesota anti-pornography ordinance that she
co-authored with Dworkin in 1983 defined pornographic
representation as "a practice of sex discrimination, a violation of
women's civil rights, the opposite of sexual equality." In other
words, pornography and the unwelcome workplace proposition
are, in MacKinnon's schema, the same kind of violation of women's
civil rights. Since her anti-pornography stance makes liberals
generally, and First Amendment advocates in particular, very
uneasy, her association with sexual harassment law probably
contributes to its current unpopularity.
This conference certainly demonstrated the availability of sexual
harassment law for parody. The legal doctrine produces ludicrous
hypotheticals of the kind lawyers seem to love. Take the problem of
the "bisexual harasser," for example. Is it discrimination based on
sex if a bisexual supervisor sexually harasses male and female
subordinates equally? Or consider the six scenarios of ascending
complexity presented by William Eskridge, a Georgetown law
professor. These scenarios culminate in the case of "Mechelle
Vinson, bank teller, [who] is groped and threatened with rape by
her bank supervisor, Sidney Taylor, after he finds out that Mechelle
is a male-to-female transsexual." Has Taylor harassed a woman? Is
sexual difference necessary for sex discrimination? If so, are we
sure we know what sexual difference is?
More seriously, as Eskridge also pointed out, the ambiguity of the
word "sex" in "sexual harassment" can make apparently
non-sexualized forms of harassment, such as letting the air out of a
co-worker's tires, hard to adjudicate. Does the word "sex" refer to
gender differences or erotic interaction?
More recent criticisms of sexual harassment law focus not on its
conundrums, however, but on allegations that it interferes with
routine sexual interchanges. This criticism has been made not only
by journalists such as Toobin, but also by feminist academics such
as Jane Gallop, herself once the target of sexual harassment
charges. Symposium participants spent a lot of time attempting to
defuse and reverse this claim. MacKinnon suggested that it's critics
of sexual harassment law, not its advocates, who assume that "if sex
must be equal, the end of sex must be at hand." Dworkin went for
sarcasm, characterizing opponents of sexual harassment law as
"millions of men [who] want to have a young woman in the
workplace to suck their cock." Others, like social psychologist
Louise Fitzgerald, look to experimental data that suggest that "men
are more likely to perceive sexual motives and intentions."
So yes, sexual harassment law is open to confusion and parody....
salonmagazine.com
So, I would suggest that if the experts are confused, (and divided), the American public is even more so.
Now, let's take Paula Jones and Monica Lewinsky. The general public was skeptical about Jones' claims to begin with, for reasons that do not need to be recapitulated here.(Even those who suspected Clinton did indeed drop his pants, doubted that Jones had suffered any job discrimination as a result of her refusal to "cooperate.") As for Monica, she told her friends, even before she started work in the White House, that she dreamed of having sex with the President on the desk in the Oval Office. Hence, not many people out there see her as a "victim" of sexual harassment. (Although Prof. MacKinnon may.)
At any rate, my own view is that sexual harassment law is indeed not fully understood or accepted by everyone -- including many of those who are responsible for enforcing it. We all have heard cases like that of the six-year-old boy who was disciplined for "harassment" because he kissed a female schoolmate. Popular distaste for this sort of zealotry has of course benefitted Clinton.
Seems to me there are plenty of kinks in sexual harassment law, and that it will take quite a few years to straighten them all out. Just IMO, of course.
jbe
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