Americans agree sexual harassment is a problem. They just don’t always agree on what it is – By William Cummings (usatoday.com) / Nov 17 2017
Over the years, sexual harassment, sexual assault and rape are topics that Americans have far too often tried to sweep under the rug, but issues of sexual misconduct have now taken center stage as allegations have begun to bring down powerful men in Hollywood and beyond.
People are increasingly aware of the severity of the problem. Two-thirds of Americans think sexual harassment in the workplace is widespread, according to a poll last month from NBC and The Wall Street Journal. But while most Americans agree the lines are too often being crossed, they don’t always agree on where that line is.
Clear definitions, blurred interpretations
Deborah Rhode, a Stanford Law School professor, said most workplaces follow the Equal Employment Opportunity Commission definition of harassment. The EEOC identifies two types of harassment, Rhode said: “Quid pro quo harassment, which is requests for sexual favors, or hostile environment harassment, which is creating a hostile workplace that interferes with performance.”
“The problem is, when does the conduct rise to a level of interfering with performance?” Rhode said. “And how offensive does it have to be before either the employer or courts will take it seriously? And that’s where the fuzziness comes in. I think the definitions are fairly consistent but the interpretations vary enormously.”
Rhode said the tech industry is “the latest example” of a male-dominated industry where sexual harassment complaints are regularly dismissed. “And we know that Fox News had decades of notice about Roger Ailes and Bill O’Reilly, but if the employee is valued enough, employers are willing to forgive and forget until egregious conduct becomes public.”
Here are the current definitions of sexual harassment, sexual assault and rape from the Merriam-Webster Dictionary and the federal government.
Sexual harassment, defined
What the dictionary says: Uninvited and unwelcome verbal or physical behavior of a sexual nature especially by a person in authority toward a subordinate (such as an employee or student)
What the EEOC says: Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.
Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
What average people say: In a March 2017 survey of U.S. adults conducted by the National Sexual Violence Resource Center (NSVRC), 60% of women and 48% of men considered “unwanted verbal remarks that are provocative or unsolicited” to be sexual violence or assault (setting — i.e., workplace or not — was not specified).
Sexual assault, defined
What the dictionary says: Illegal sexual contact that usually involves force upon a person without consent or is inflicted upon a person who is incapable of giving consent (as because of age or physical or mental incapacity) or who places the assailant (such as a doctor) in a position of trust or authority
What the Justice Department says: Sexual assault is any type of sexual contact or behavior that occurs without the explicit consent of the recipient. Falling under the definition of sexual assault are sexual activities as forced sexual intercourse, forcible sodomy, child molestation, incest, fondling, and attempted rape.
Rape, defined
What the dictionary says: Unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against the will usually of a female or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconciousness, or deception.
What the Justice Department says: The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.
What people say: In the NSVRC survey, 87% of women and 82% of men agreed that sexual intercourse where one of the partners does not give consent counts as sexual violence or assault. And 74% of women and 71% of men said the same of sexual intercourse with a partner who is severely intoxicated due to alcohol or drugs.
Evolving legal definitions
Even agreeing on what constitutes rape is not always simple. State laws vary in how they define sex crimes, consent, legal age and the statutes of limitations.
“Most states require a showing of force and non-consent without force is a misdemeanor,” Rhode said.
In other words, many states don’t consider it rape if a victim verbally protests but isn’t physically forced. This makes it difficult to prosecute some “acquaintance rapes” in which the victim knows the attacker and which make up the vast majority of rape cases.
In 2012, the Justice Department dramatically expanded how it defines rape for the purposes of collecting crime data. The old definition “only included forcible male penile penetration of a female vagina” the department said in a statement. The new definition does not define the sex of the victim, drops the force requirement and adds oral or anal penetration.
Currently, there is an effort to add an “affirmative consent” standard to the Model Penal Code that forms the basis for many state laws. This would require the someone express “either through words or conduct” that they are willing to engage in a sexual act in order to consent.
“I think what you’re seeing with the latest cascade of complaints is just how much it takes to get people’s attention,” Rhode said.
“But I do think that the collective consciousness raising that we’ve been involved in is a watershed moment. Everybody’s getting a lesson in just how persistent and pervasive these problems can be.”
