Sexual Harassment Is a Civil, Not Criminal, Offense

Sexual Harassment Is a Civil, Not Criminal, Offense

Sexual Harassment Is a Civil, Not Criminal, Offense

Cuomo and his enablers rely on the public’s lazy understanding of the legal system.

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I swore that I was done writing about Andrew Cuomo. But the problem with shameless psychopaths is that they can easily cow a weakened media into reporting their nonsense as actual, relevant fact. And that’s where we find ourselves today. Cuomo, like Donald Trump and other serial abusers, continues to insist that the lack of criminal charges against him is proof of innocence. Rather than just quote him, though, reporters are now uncritically repeating his spin, ostensibly in the service of journalistic “context.” A recent Daily Beast article read: “Cuomo, who resigned in the wake of numerous allegations of sexual harassment or misconduct—which he still denies, and never faced any criminal charges over—remains one of only three New York governors without a portrait on display.” These kinds of caveats are meaningless drivel. Sexual harassment is simply not criminal. Period.

We have two tracks of law in this country, criminal and civil, and sex-based discrimination—like discrimination based on race or religion—is firmly within the civil code. The 11 women involved here, whose claims of sexual harassment were substantiated by the New York attorney general in a meticulously documented 168-page report, experienced proven violations of the civil rights law. Two of them have filed lawsuits against Cuomo, his enablers, and the state itself, for which the media continues to describe them as “accusers,” despite their having already been vindicated by the state’s highest law enforcement officer. And yet there’s no mention of their civil cases in any of the horse-race reporting on Cuomo’s future. Nor do these facts appear to dissuade The Daily Beast from regularly running mediocre opinion-writing from the addled mind of Melissa DeRosa, Cuomo’s chief enabler, who was also named in the suits against him. This isn’t just about a washed-up ex-governor and his band of ghoulish idiots, though; it’s about what it means for women’s rights when the standard for public legitimacy creeps from civil to criminal.

Abusive men are not in fact lobbying to make sexual harassment a criminal offense. Neither are victims’ rights advocates. Physical abuses already fall within the criminal code, which, in Cuomo’s case, includes a young woman’s account of forcible touching, which various district attorneys found “credible.” The only reason the DAs declined to pursue charges was that they did not think they could prove them in court. That’s par for the course: Criminal court is an absolute wasteland for women, with only 20 percent of reported sexual assaults ever leading to an arrest, let alone prosecution (4 percent) or conviction (2 percent). The women whose cases do make it to trial have no control over a process that usually involves their being torn to shreds on the witness stand by a team of character assassins for the defense. As the civil rights lawyer Alexandra Brodsky explains in her book Sexual Justice, “The intent of prosecution is to vindicate the state’s interests, not to assure the survivor’s well-being.” Survivors function as witnesses for the prosecution, rather than as partners in a process of which they’re only incidentally at the center. And getting a jury to unanimously find guilt “beyond a reasonable doubt” usually demands a fictitious perfect victim. Even after everything, the jury in Harvey Weinstein’s second criminal trial found him guilty of raping only one of the four victims in the case, citing her composure on the stand, her comparatively few tears, and the fact that she never had subsequent contact with Weinstein. Victims are always on trial for the crimes against them, but they have a better shot in civil court, where they need only prove that a “preponderance of the evidence” supports their case. And they don’t have to convince everyone; only a majority of the jurors need to believe that what is being charged is more likely to have happened than not.

It’s easy to see why Cuomo et al. would prefer to play to the public’s lazy, TV-driven, cop-and-courtroom-based understanding of the legal system, in much the same way that Republican outrage about free speech depends on widespread ignorance of the First Amendment.

Civil court isn’t a slam dunk for women, however, and the actual history is grim, as the ACLU’s Gillian Thomas explains in Because of Sex, her book about Title VII of the 1964 Civil Rights Act, which bans sex discrimination. Congressman Howard Smith, the 80-year-old segregationist who jokingly proposed the amendment, did so accompanied by peals of laughter from his mostly male colleagues. Republicans and Southern Democrats ultimately supported it so as not to give Black women more rights than their own wives. Even the first chairman of the Equal Employment Opportunity Commission—created specifically to enforce the 1964 act—didn’t take it seriously, responding “I’m all for it” when asked about sex. With the EEOC’s support, the Supreme Court later enshrined what’s known as the Faragher-Ellerth affirmative defense, which allows employers to argue that the mere existence of an anti-harassment policy, and the victim’s failure to avail herself of it, shields them from liability. That’s currently what the New York State Police are arguing in response to the sex discrimination case brought by a female trooper that Cuomo harassed repeatedly, including in the presence of her immediate boss, who told her to stay silent about it. So weird that she didn’t report the abuse! Arguing Faragher-­Ellerth generally works: Analyzing more than 1,000 court decisions on organizational discrimination and harassment from 1965 onward, a 2011 continuing study in the American Journal of Sociology found that, by 2014, judges had bought the argument 50 to 70 percent of the time.

This is only a fraction of the relevant context people need to understand how our legal system does and does not work. But when reporters deep-fake readers by leaving out any reference to the entire body of law that governs the issue they’re reporting on, it’s more than just a journalistic failure: They’re perpetuating misogyny itself.

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