‘We Made This (Harassment) Law Up From the Beginning and Now We’ve Won’

“The sexual harassment racket is over,” Peggy Noonan excitedly declared in the Wall Street Journal last week. No longer need we be stumped by conundrums based on “he said/she said.” Instead, Noonan rejoices that “now predators are on notice.” Overlooked in the celebration, however, is that the presumption of innocence—long problematic in sexual harassment charges– is going even further down the tubes.

Despite Peggy Noonan’s current views, he said/she said situations are notoriously difficult to disentangle, especially when much time has elapsed between the event and its reporting. Abandoning the presumption of innocence because women “must be believed” is a dangerous step, but sufficiently commonplace these days that it’s not surprising to see some of those accused grovel, apologize publicly even while claiming to have intended no harm, declare their readiness to undergo sensitivity and harassment training, enter rehab or counseling, and otherwise attempt to redeem themselves via excuses intermingled with abject mea culpas.

The Blurring of ‘Sexual Assault’

To make matters worse, the ever-expanding allegations against prominent men display the indiscriminate current use of the term “sexual assault.” This is a rhetorical move designed to efface distinctions between highly disparate acts, and it follows on the well-established tradition in the sexual harassment literature of including everything “unwanted,” from a look or “elevator eyes,” to a leer, a phrase, a joke, an invitation, a touch, a grab, and even rape.

In fact, sexual assault and rape have both been against the law since long before sexual harassment emerged as a legal category in the 1970s. Whereas Title VII of the 1964 Civil Rights Act had prohibited discrimination in employment because of sex, race, color, religion, and national origin, Title IX of the Education Amendments of 1972 extended the prohibition also to schools that receive federal funds. Over the years, however, the view that any sexual behavior and expression could themselves be a form of harassment won out.

Thus, we arrived at the real feminist victory. No longer was quid pro quo harassment (sexual extortion) necessary. In Meritor Savings Bank v. Vinson (1986), the U.S. Supreme Court, accepted EEOC guidelines that created the category of “hostile environment” harassment even without economic harm to the plaintiff.  Radical feminist Catharine MacKinnon (who finds it hard to distinguish rape from sexual intercourse) famously declared on that occasion: “We made this law up from the beginning, and now we’ve won.”

Even before Obama’s Department of Education sent a letter of “guidance” to universities in 2011, urging a loosening of the standards of evidence for sexual “misconduct” – itself a fiendishly vague term– such that simply a “preponderance of evidence” (i.e., more than 50 %) should be considered sufficient to sustain an allegation, sexual harassment charges had become a major vehicle for the denial of due process on campus. And that’s because in workplaces and schools, as opposed to courts of law, the mere possibility of costly institutional liability and the threat of loss of federal funding naturally prompted institutions to engage in defensive behavior. Public opinion, with its tendency toward over-reaction, hardly helps. When Secretary of Education Betsy DeVos, in September 2017, rescinded Obama’s 2011 “guidance” directive to schools, to restore due process, many media headlines referred to “sexual assault” (rather than “misconduct”) as the issue, perhaps as part of their strategy to pretend the Trump administration was attempting to facilitate rape.

Harassment Charges Usually Mean “No Due Process’

The legal philosopher Mane Hajdin explained (and protested) the way sexual harassment law has evolved by pointing to the two levels at which it functions: At the upper level of the formal legal system, where “harassment” requires verbal or physical conduct that is persistent, pervasive, and severe, traditional legal protections for the accused function. But at the lower,  level of schools and workplaces, we find a sub-legal system that regularly suspends the routine legal protections most Americans assume will govern when an accusation is made.

In my 1998 book Heterophobia: Sexual Harassment and the Future of Feminism, I documented numerous cases of grave injustices, of schools unwilling to distinguish between trivial or even false accusations and serious offenses for which there was substantial evidence, of professors instantly barred from campus as soon as an allegation was made, of job loss over words students found offensive or teaching they disapproved of. And in the twenty years since I wrote that book, the situation has only worsened, as schools encourage complaints in the belief that more complaints indicate their policies are working.

To make sexual harassment charges stick, alleged victims (hyperbolically called “survivors”) naturally have to claim extreme harm. This further muddies the already unpopular distinction between trivial or invented episodes, persistent and pervasive harassment, and actual assault. Anyone can learn the script, and, within academe, offices and officers have proliferated to encourage charges and pursue them. Often the same office first helps the accusers formulate (and even escalate) charges and then proceeds to investigate those charges. The pretense that “women don’t lie” is piously intoned, as if women were not simply humans with complicated motives, just like men.

Quid pro quo harassment, as it turns out, is rare. But that still leaves lots of room for charges of a hostile environment, easy to allege and hard to prove. The triggers of complaints are varied and unoriginal: students angry at a professor’s views or upset over a grade; colleagues resentful of one another; plain old jealousy; power struggles of one sort of another, even attempts by newer employees to displace their bosses–all these can and do find expression through allegations of harassment, and all have been used also by women against women, though men are the primary targets.

Duke and UVA: Two Major Injustices

Even Jane Gallop, a professor accused of sexual harassment by another woman, complained in her 1997 book: “most people take an accusation for a finding of guilt. Simply to be accused of a sexual crime is to be forever stigmatized.” If this is true for a famous feminist such as Gallop, imagine how it functions for a mere man. But we don’t need to imagine; we know. Consider, for example, the immediate assumptions of guilt in the Duke lacrosse case (2006), where 88 Duke professors signed a letter supporting the “victim” (who turned out to be lying) before any investigation had occurred; or the entirely fictitious University of Virginia case (2014) made notorious by Rolling Stone.

Most allegations don’t even attract this kind of publicity, as universities are eager to quietly settle them by punishing the alleged harasser and paying off the self-described victim. The usual identity politics involving race and class (not only sex) of course also play a part in assumptions of guilt or innocence, but the feminist paradigm that has gained the most traction is that “sexual harassment” is something men do to women, period.

When the accused do fight back, the costs to them are very high, since campus officers are devoted principally to protecting the institution–not to seeking an impartial investigation.

And even when the accused do sue or otherwise win out, public opinion often fails to take note. Consider “mattress girl” – the Columbia University student still making a name for herself via a rape charge against a former boyfriend, although he was not only exonerated; Columbia settled the gender bias suit he brought against it. And shortly after the alleged rape, “mattress girl” responded to a birthday email from the alleged rapist with the message, “I love you, Paul. Where are you?!?!?!?!”

Several decades of feminism have enormously strengthened women’s positions in American society. It has also led to the acceptance of certain myths that have surely not helped women deal with the real world. One of the most pernicious is Susan Brownmiller’s assertion, in her best-selling 1975 book Against Our Will, that rape is about “power,” not about “sex.” This unsubstantiated orthodoxy is now held to apply as well to acts of sexual harassment, even trivial ones. Thus, distinctions between expressions (unseemly or not) of sexual interest and actual sexual assault are effaced.

Heteronormativity Is Imposed by Men?

Who has an interest in refusing to draw distinctions? It turns out that well-known feminists have for decades insisted that heterosexuality itself is a socially constructed mechanism by which all men control all women. In this view, there is nothing “natural” about it. Rather, “heteronormativity” is imposed on women by men. From this, it follows that sexual harassment must be about power, not sex, as are all other manifestations of male (hetero)sexuality. Women’s apparent participation in this system is explained in many ways – as coerced, indoctrinated from birth by imposed gender roles, involving a kind of societal Stockholm syndrome, reflecting women’s inability to name their pain and instead construe it as pleasure, and so on.

This is what I have called heterophobia and it has become ever more prevalent as male/female bimorphism and complementarity have been relentlessly attacked and categories of sexual “identity” have proliferated. This is reflected, as well, in the name change of academic departments driven by feminism. They used to be called “Women’s Studies”- and were devoted to promoting and studying women. Today most of them have renamed themselves “Women, Gender, and Sexuality Studies,” or some variation thereof, for indeed that is their untiring focus.

From the perspective of these new dogmas, then, refusing to draw distinctions between types of sexual “harassment” is not an innocent mistake. Rather, it’s the logical consequence of the analysis of heterosexuality put forth over many decades now and widely reflected in popular thinking.

To see women as men’s easy victims is, however, to deny them agency and dignity in the name of saving them from both men and themselves. It also presumes that women cannot change, cannot learn to defend themselves or use common sense in their interactions with men. Instead, it is men alone who must change.

Yet surely it makes much more sense to suppose that men who make sexual overtures are probably interested in sex. To admit this, however, returns us to questions of sexual nature and sexual difference, and that is not a discussion encouraged these days. Yes, men may use the power of their positions to try to achieve their sexual aims, just as they no doubt use whatever other advantages they have – money, connections, charm.

Women, too, of course, pursue their aims using whatever means are available to them, including their sexuality, but it seems that getting sex is not high on their list of priorities. Perhaps sex is more of an end in itself for men, and a means to an end for women. This might help explain the differing agendas at play when women are apparently ready to go to some important man’s hotel room for a “meeting.”  Not that this is a peculiarly American phenomenon: One of Tariq Ramadan’s accusers by her own account went to his hotel room at 3 a.m. for a meeting.

There is much evidence, as well, of men’s greater responsiveness to visual sexual stimuli, a detail often ignored in the current debates. Feminism has changed the rules of the game so that today women are to enjoy the freedom to flaunt their sexuality as much as they like. Indeed, it seems that nothing can stop women from exploiting their sexuality in the modern world, while everything these days tells men they dare not respond to it in any way. Thus, male and female cultural norms for the past few decades have been on a collision course.

It’s also worth acknowledging that most women have an interest in being attractive to men. In fact, older women often complain about becoming “invisible” sexually as of a certain age. Why complain if they hated all that attention earlier? And those that can continue to play the game, do. Check out the media attention given to Susan Sarandon, age 70, who appeared at Cannes in 2017 in a revealing outfit with leg flashing and pneumatic breasts prominently on display. Ditto for the tendency among women in the public eye to exhibit ever more flesh, and to sport skin-tight and diaphanous clothing leaving almost nothing to the imagination. These are typically famous and well-paid women, communicating with all others that being quasi-naked is the new dressing up. They are obviously presenting themselves as objects of desire. Does anyone seriously believe that men are forcing women to display themselves like this? That women don’t flirt, don’t make provocative comments and gestures even when they have no wish to go further than that? Sexuality has always been a power tool for women.

In the face of such constant displays, however, men are supposed neither to look nor touch nor comment – unless the woman somehow signals that she welcomes their attention. Being in a state of undress in public evidently does not count as a signal, though it used to when streetwalkers displayed their wares. It’s as though today every woman has the right to channel her inner slut—while expecting there to be no negative consequences, only the positive ones she desires: appreciation, opportunities, admiration, career advancement, publicity.

But good looks and sexual attractiveness are not the only things on which people are eager to trade. Professors are well aware that students have advantages over one another in all sorts of ways, including brains, talent, charm, wit, humor, and conversational skills. All these come into play in ordinary interactions, and all affect success not only in school but in life generally. This is why some famous dystopian satires (such as L.P. Hartley’s 1960 novel Facial Justice, or Kurt Vonnegut’s 1970 story “Harrison Bergeron”) envision societies that, in the name of achieving absolute equality, level the playing field through draconian measures designed to reduce everyone to the mediocre mean.

In the real world, apart from the policing of language and the advantages currently accruing from identity politics, sexual harassment law has succeeded in leveling the playing field in an unforeseen way (or was it, in fact, intentional?): by creating rewards for those making charges. Far from being a stigma to those who allege harassment, as is still maintained decades after this ceased to be the case, it is the reputations and livelihoods of those charged—as we’re seeing on a daily basis—that can readily be ruined.

The hyperbolic claims of a “rape culture” on campus or a sexual harassment “epidemic” is designed to bolster demands for ever more forceful rules and regulations and to signal both the virtue and resolution of administrators in dealing with them. As I noted in Heterophobia, though, many studies had found that sexual bribery and sexual assault were, in fact, rare among students and workers, it made sense that, if “the sexual harassment industry” was to survive, it would have to magnify and extend the range of behaviors and words constituting the offense. This is how a social problem is defined and gains attention, as the sociologist Joel Best has demonstrated: not by drawing distinctions, but by presenting every instance as “nothing but” a further example of the underlying problem.

The range of charges all being treated as equally serious is extraordinary evidence that a kind of hysteria is at work, as is the “#me too” vogue these days. Mob psychology is visibly unfolding before our eyes and it’s hardly surprising that many of the accused men are acting like abject creatures, no doubt hoping to salvage their careers and lives to some extent. We have been through this before. The recovered memory of childhood sexual abuse mania of the 1980s, as is well documented, ruined lives (of both self-proclaimed victims and their alleged abusers), landed innocent people in jail and even caused desperate parents to confess to things that had never happened.

Can’t Women Handle Vulgar Men?

The conflation of charges large and small as all representing one evil, one problem, also raises additional concerns, as does the practice of assuming all charges to be true because some of them are plausible and rest on evidence. What should one think if, after 40+ years of very active feminism, women still have no gumption, spirit, and ability to take care of themselves? If they do not know how to respond to vulgar gestures or comments or don’t dare leave a room when they don’t like what’s going on within it? If they later construe a whole range of alleged behaviors as equally traumatic and life-altering?

Or could it be that many women have qualities of autonomous, capable, and mature human beings but choose not to exercise them in particular circumstances? Are they so eager for the success of a certain type that they in effect negotiate with their “assailant” about just what they’re willing to do or not do? And yet even some recent accusers are reported to have run out of the room, or otherwise successfully rebuffed the men against whom they are now speaking out.

A question worth pondering: If these scenarios are in fact as common as so many people are now claiming, how on earth did nearly half a century of very active feminism create a population of such cowards? We know that women do better than men in many academic subjects; they outnumber men in college attendance and among graduates; they have reached or surpassed parity with men in many highly-regarded professions. They insist on their ability to compete successfully with men on every level. Yet, somehow they’re unable to deal with obnoxious men on their own and need the state and a massive bureaucracy to take over the task.

Certainly, people should behave with decorum (an outdated concept) for the sake of having a truly civil, “civil society,” but laws micromanaging everyday interactions are not helpful, any more than are restrictions on speech because someone feels “offended” or “uncomfortable.” Sexual extortion, sexual assault, and rape,” are and should be illegal. Vulgar overtures should not be. Women should learn to deal with these things.

Feminists insist on a woman’s right to control her own body, and on women’s ability, even obligation, to forge their own identities. Yet somehow these same women are excused for not being able to deal with vulgar or misplaced sexual overtures. If women are really this fragile, how can they function in the public sphere? If decades of feminism have been such a failure that women are indeed afraid to speak up or to leave the room, why might that be? If they’re not willing to insist that a professional meeting is held in appropriate professional venues, is it because they want something from these men, hence have a certain inclination to risk and even put up with sexual overtures and worse if they think it might get them something else they seek?

Raising these uncomfortable issues will, of course, be attacked as outrageous defenses of sexual assault. They are not. In a world in which we constantly talk about “interaction,” about the complexity of human relations, why the simple-minded division into villains (men) and heroes (usually women)? Why should we exempt the relations between adults seeking something – perhaps different things: promotion, an opportunity, a break, a sexual dalliance or diversion, some quick pleasure? Why the constant conflation of sexual overtures with sexual assault? Why are we not supposed even to discuss these aspects of the situation?