So why does literally everyone charge him with or defend him from “sexual harassment” and not the more severe offense? It is understandable from supportive conservatives since it is a less serious charge. But why from the left, which obviously dislikes him but uses the same terminology?
A decade ago former psychiatrist and columnist Charles Krauthammer explained the left’s project to “define deviancy up” by making real criminal deviancy appear commonplace and characterizing minor peccadilloes as immoral and illegal.
Defining deviancy up, like defining deviancy down, is an adventure in moral equivalence. As such, it is the son of an old project which met its unfortunate demise with the end of the Soviet empire. There once was the idea of the moral equivalence between East and West. Even though the Soviets appeared to be imperialist and brutal and corrupt and rapacious, we really were as bad as they were. We could match them crime for crime throughout the world. Well, this species of moral equivalence is now dead. The liberation of the Communist empire, the opening of the archives, the testimony of the former inmates–all these have made a mockery of this version of moral equivalence. But ideology abhors a vacuum. So we have a new version of moral equivalence: the moral equivalence within Western society of the normal and the deviant. It is a bold new way to strip the life of the bourgeois West of its moral sheen.
At that time the issue was “date rape” as opposed to real rape. Rape “used to be understood as involving the use of or threat of force” but now under the euphemism of date rape it had been expanded “to encompass an enormous continent of behavior that had long been viewed as normal or, at worst, ambiguous, but certainly not criminal.” Krauthammer refers to “perhaps the most famous and widely reported study of the rape epidemic, the one done by Mary Koss for Ms. Magazine” that overestimated rape “by a factor of 500.” He noted that “Rape has been expanded by Koss and other researchers to include behavior that you and I would not recognize as rape. And not just you and I – the supposed victims themselves do not recognize it as rape. In the Koss study, three-quarters of the women she labeled as rape victims did not consider themselves to have been raped. Fully 42 percent had further sexual relations with the so-called ‘rapist’.”
As Krauthammer noted, Susan Estrich argued that even saying “yes” to sexual relations should not be considered as assent, while radical feminist “Andrea Dworkin once claimed, ‘Romance is rape embellished with meaningful looks.’ The date rape epidemic is just empirical dressing for a larger theory which holds that because relations between men and women are inherently unequal, sex can never be truly consensual. It is always coercive.” Literally all heterosexual romance is morally and legally wrong under this distorted leftist view.
What about sexual harassment today? Like real rape sexual assault is a terrible wrong that must be condemned. Unlike rape there are degrees and these should be considered but assault is wrong and deserves punishment. For legally defined sexual harassment, there is much more ambiguity. There actually are two types: “quid pro quo,” where unwanted acts of a sexual nature are used by an employer to affect employee workplace outcomes, or a “sexually hostile work environment” when an employer allows such an atmosphere to affect employment matters. The former requires a specific offensive act but the latter is more vague so that courts say it can only be evaluated in the totality of the circumstances, its frequency, its severity, its threatening or embarrassing nature and whether it actually interferes with work performance.
Clearly, the supposed Cain actions would fall under the former more severe type of harassment if they were true. But even quid pro quo sexual harassment is not a crime but an employment dispute. Actions under the law are taken against the employer, not the harasser. Penalties even can be avoided if the employer can show it took reasonable precautions or responses. Civil actions against the individual perpetrator can be taken in state courts but usually under general tort provisions. Mr. Cain was the CEO but the National Restaurant Association was the defendant in the two public claims of sexual harassment, not him. NRA settled one case for $45,000 and another for $35,000 compared to court costs that have to be paid even if the employer wins and can amount to more than a million dollars or even to $100,000 for a single summary judgment.
The reason literally every story uses the “harassment” designation is precisely because it can be vague and allow ambiguity in the charges. Even after the courts have tightened the meaning of the harassment regulations, sexual harassment can still be in the eye of the beholder and not necessarily based upon any specific act taken by a predator. Case law on the matter explicitly states that any charge starts from the perspective of the complainant, how he (16%) or she (84%) views the offensive nature of the sexual advance. Even several legal firms currently include “normal or at worst, ambiguous” behavior such as flirting, asking for a date more than once, or using sexual innuendo as suspect behavior.
What does the author know about this? He was at the creation of the federal sexual harassment guidelines as one of four principle government agency heads responsible for reviewing them. Six days after the presidential election of 1980, the departing Jimmy Carter Administration published sexual harassment rules to affect every American business without securing any previous change in law or even in regulations but as simple “guidelines” that were designed for use by federal courts to settle claims in the absence of other criteria. The new Reagan Administration reviewed these as part of a general plan to assess all rules issued in the waning days of a departing administration. The Department of Justice Civil Rights Division and Office of Personnel Management attempted to more finely define the quid pro quo criteria and eliminate the nebulous “hostile environment” section but were blocked by the Department of Labor and Equal Employment Opportunity Commission so that the vague rules went into effect.
Early cases actually were brought against employers whose supervisors asked for dates or engaged in flirting. Finally, the Supreme Court made a distinction between “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes and occasional teasing” as opposed to a workplace “permeated with discriminatory intimidation, ridicule and insult” as judged by an objective, reasonable person. Today Federal statistics show 12,000 or so complaints are made nationally per year and that more than two-thirds of claimed harassment is administratively closed or dismissed for having no reasonable basis and that only one-third are resolved, settled or conciliated to some benefit for the complainant.
Therefore, even broadly defined legal sexual harassment is a relatively rare occurrence. But like date rape in earlier times it is used as a broad brush charge against behavior not normally thought of as criminal. The American Association of University Women just released a study of middle and high school students that claimed that 48 percent of 7th to 12th graders were deemed to have suffered from sexual harassment, 56 percent of girls and 40 percent of boys reporting one type or another. What constituted harassment to this most progressive group included sexual jokes and looks, sexual messages and notes, and spreading sexual rumors. According to these widely reported findings, a majority of girls at the average U.S. suburban school suffers from harassment under this broad definition. The group Equal Rights Advocates claims a Cornell Law Review study “reported 40 to 90 percent of women in the United States” have suffered “some form of sexual harassment,” a wide range not actually reflected in the study and based on a survey of one profession that the author conceded was not representative.
Reading about all of the studies claiming widespread harassment, a majority of women told Washington Post pollsters this month that they thought sexual harassment was a major problem in the workplace but only 24 percent said they experienced harassment and one-third of them said it was not serious enough to report. Still, by three to one they believe Mr. Cain’s accusers. The facts do not matter for much of the left-leaning media and intellectual elite who see all as guilty. As Krauthammer quoted Naomi Wolf, “boys rape and girls are raped as a normal course of events” in every aspect of American life.
In politics, the mere labeling of one as sexually harassing is equivalent to guilt. It is unlikely Mr. Cain can survive such a charge, true or not. One of the two claims against him that resulted in a cash settlement (the higher one) involved, according to Mr. Cain, merely standing “near her” and the accuser’s attorney Joel Bennett did not rebut this to the media, saying he did not want to “characterize what was physical and what was verbal” between the two. Even after she was allowed by the NRA to go public she did not take advantage of the opportunity. The two NRA claims seem to have resulted in simple nuisance payments that would be made by any employer to avoid court costs. The other public accusation (there actually were two others but neither charged anything even remotely actionable) was by Sharon Bialek, the individual who charged assault. It took a decade before she made the claim and even a supposed statement to a boyfriend at the time did not claim behavior beyond Cain being boorish.
The Chicago Tribune reported Ms. Bialek had a long history of tax evasion, was late or missed credit card payments from four card companies, owed back rent of $4500 and twice filed for personal bankruptcy. A supposed Chicago friend of Ms Bialek’s told the New York Post: “She has a very infectious personality. It’s easy to see how she won [Cain] over. But the reality of her situation is — she’s a complete gold digger. It’s all about the money. Most of her jobs ended in termination. It’s always the employer’s fault, not hers. This is a lady who lives off the system. She is hellbent on finding a way of never having to work and living the lifestyle she wants to live, a very affluent lifestyle.”
The case against Cain is weak but who knows the truth? What we do know is that it took years for the courts to narrow sexual harassment to something with some common sense meaning as opposed to criminalizing the “ordinary tribulations of the workplace.” This standard of “the totality of the circumstances” is still rather vague but it is at least reasonable although most such charges will undoubtedly continue to be settled out of court in the face of the remaining uncertainty. What would be terribly regressive, especially in something as important as a presidential election, would be to reintroduce the original vagueness which could be used for partisan purposes and to settle scores.
Treating mere harassment especially in its vaguer aspects as equivalent to assault trivializes the more serious charge and stunts our moral sense and consequently our ability to sustain a responsible social order. As Krauthammer noted “the moral deconstruction of middle class normality is a vast project” with many leftists anxious to prove normal middle class behavior deviant and advance their ideological agenda for a cultural revolution. In his words, as it becomes “difficult to sustain the customary distinctions between pathology and normalcy, the moral superiority to which bourgeois normalcy pretends vanishes” and the whole Western project becomes untenable.
If the first public accuser of Herman Cain is correct in her charge against him, one thing is absolutely clear: he is not simply guilty of sexual harassment. He is guilty of first degree criminal assault.
