Chances are pretty high that if you’re a woman, you’ve been sexually harassed.
In fact, I bet you know more women who have been than ones who haven’t.
And while victims of sexual harassment in the workplace are able to seek relief through the civil process, the civil laws do not make the conduct criminal. Only in some cases (forcible touch, sexual assault), may sexual harassment cross the line into criminality.
But unwanted sexual overtures and conduct that makes the workplace environment hostile, offensive or intimidating? Not a crime.
Why not?? And should they be? I sure think so.
Skirting The Crimes
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When New York Attorney General Letitia James announced this month that her investigation (read the full report here) concluded that Gov. Andrew Cuomo “sexually harassed multiple women and violated state law,” my first thought was, he should go to jail.
And while there is a chance he could (as he’s been accused of forcible touch, which IS a crime) chances are pretty good he’ll skate by with just paying his 11 victims.
A day after #AndrewCuomo resigned as New York governor, International Academy of Television Arts and Sciences said it will be taking back the #Emmy he won for his primetime pandemic briefings.https://t.co/LslUXyhdP3
— Firstpost (@firstpost) August 25, 2021
His credible accusers can file civil suits against Gov. Cuomo, but that’s about the extent of his punishment.
That is enraging and not even close to justice.
Maybe men would think twice about sexually harassing women if there were consequences for their actions. Would you proposition a co-worker if there was even a chance you could go to jail?
Although it would be fantastic if men didn’t have to be threatened with a jail stint to keep their sexual impulses in check, I’m being realistic. If there is a better way to ensure that women, who just want to get through their work day without being harassed, I’m listening.
Because at this point, making it a criminal offense seems like the only way.
Why Isn’t Sexual Harassment A Crime?
According to attorney Luppe B. Luppen, there isn’t an easy answer as to why most forms of sexual harassment aren’t crimes. “My understanding is that the answer to why most sexual harassment isn’t treated as a crime is tied up in the cockamamie and sort of sad way sexual harassment came to be recognized as illegal in the courts around 1970,” he told me.
“The backdrop to all this is that from time immemorial the criminal law around rape, assault, and other sexual coercion is tremendously retrograde and puts all sorts of unfair burdens on the victim.
“The story really starts in the mid 60s when Congress is trying to pass the Civil Rights Act, and opponents of the bill come up with the idea to offer an amendment to add a prohibition on sex discrimination as a sort of poison pill or a prank (specifically it was the Dixiecrat Howard Smith) who proposed adding the single word ‘sex’ to the legislation,” he continued.
“The plan was that adding sex discrimination would kind of trap liberals by either exposing the limits of their commitment to equality or burdening the bill with a provision that a Congress full of men won’t pass — but the plan fails, and the prohibition on sex discrimination ends up in the Civil Rights Act that passes (and the Civil Rights Act’s general approach is creating rights enforceable by civil suit, not a bunch of new crimes to prosecute).”
Luppen went on to say that about six years later, the courts started to recognize that making employees endure unwanted sexual advances in the workplace is a form of sex discrimination that’s prohibited by the Civil Rights Act — and soon after the recognition, began awarding women monetary judgments.
“As I understand it, that’s how the law really first developed, through a failed, bad faith attempt to torpedo a civil rights bill and a series of civil lawsuits building on the principle that attempt enshrined in law. It’s only later that some state legislatures sit down and codify the ideas developed in the courts into their labor law,” Luppen said.
New York is considering taking the next step and identifying a category of new sexual harassment crimes, but as of now, it’s the first legislature (state or federal) to do so.
One of Andrew Cuomo’s accusers, former assistant executive assistant to Andrew Cuomo Brittany Commisso, filed criminal charges — alleging that he grabbed her buttocks, kissed her on the lips and reached under her blouse, touching her breast.
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Commisso spoke out in early August and said his alleged groping of her at the governor’s mansion last year “…was a crime. He broke the law.”
The governor denied these accusations and states that he often hugs people, as if that somehow explains it away.
Cue my eyes rolling so far back in my head that I hurt myself.
What Qualifies As Sexual Harassment?
Sexual harassment has been happening FOREVER and runs the gamut of cracking a dirty joke to suggestive comments about appearance.
RAINN defines sexual harassment in the workplace as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature in the workplace or learning environment, according to the Equal Employment Opportunity Commission (EEOC).
“Sexual harassment does not always have to be specifically about sexual behavior or directed at a specific person. For example, negative comments about women as a group may be a form of sexual harassment.”
Some examples of workplace sexual harassment include:
Jokes of a sexual nature
Harassing someone to go out on a date
Making remarks or gestures of a sexual nature which makes a person uncomfortable
Brushing one’s hand against another person’s arm making them feel uncomfortable
Hugging someone without their consent
Suggesting promotion or pay raise in return for sexual favors
Sending suggestive emails or texts to a colleague
Not one of these actions are crimes — but they are grossly inappropriate, especially if the power imbalance dynamic comes into play.
Beyond the gross nature of these behaviors, they tend to make women worry for their safety, which we are already worried about most of the time.
Sexual Harassment Hurts (Duh)
Sexual harassment can also lead to anxiety and depression due to the stress of being harassed.
When the #MeToo movement began in 2017, millions of women all over the world shared their experiences with sexual harassment at work.
According to Forbes, there are 68 countries without workplace-specific protections against sexual harassment.
They posed the question: “What do 424 million working-age women have in common?”
The answer is they all live in countries with no legal protections against sexual harassment at work.
While the U.S. is one of the places that have laws that require workplaces to take action in cases of sexual harassment, many don’t.
“In the U.S., where sexual harassment is legally prohibited, the #MeToo movement is giving rise to an overdue reckoning with workplace culture — and a newfound commitment to implementing laws already on the books.
“Since the movement began, prosecutors are increasingly investigating allegations of sexual assault, and numerous companies and professional associations have vowed to step up enforcement of their policies.”
In the UK, wolf-whistling and cat-calling could potentially become crimes in an effort to stop the harassment of women on the street.
Home Secretary Priti Patel said in July that the government would be “taking action” on a range of safety concerns with new proposals.
She added, “We will continue to look at gaps in existing law and how an offence for sexual harassment could address those.”
Although Patel said that she will move to crack down on public sexual harassment, new legislation is not expected due to government officials dragging their feet.
Rose Caldwell, chief executive of Plan International UK, said she was “very disappointed the strategy does not include the quick implementation of legislation on public sexual harassment.
“Without a new law, millions of girls will be left unprotected.”
Again and again, women are left to fend for themselves while fending off unwanted advances.
What will it take to send a message to men that sexual harassment in any form will not be tolerated?
To me, the answer is simple — actual and enforceable punishment.
What do you think of Gov. Cuomo’s resignation? What should the punishment for sexual harassment be? Tell us in the comments.
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