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Why Criminalizing Sexual Harassment Fosters Witch Hunts


Are you exhausted with sexual harassment allegations? Their noise and strut are turning into one of those chronic conditions that we schlep around with, like athlete’s foot. Or a hangnail.

As I write this, Tennessee State University announces that it considers whistling “in a suggestive manner” to be sexual harassment. Depending on the tune, it may lead to suspension or expulsion. The College Fix explains:

In sum, there are at least 20 different ways students and employees can be found guilty of sexual harassment, according to the policy. Campus officials state they will consider the ‘totality of the circumstances’ before deeming whether an act is sexual harassment.

In the expanding reach of sexual harassment, 20 ways today is a down payment on 30 ways tomorrow. Did this-or-that fellow do what a snowballing list of accusers claim he did half a lifetime ago? Are starlets-in-waiting gullible enough to go to a Hollywood mogul’s hotel room to watch a video? Do such naifs actually exist, or are they mythical creatures, like bread-and-butter flies? How many women posting on #MeToo are telling the truth?

There is a kind of baroque grandeur to the chorus of high dudgeon. But how much of it is bandwagon hysteria? How much free-floating animus?

A Vague Crime with Accusations Sufficing to Convict

Forgive me for wondering if there might be some gravy in the feedbag for women willing to cooperate with efforts to bring down men targeted for their politics. Or simply their authority. Harassment accusations are a handy tool for spite, jealousy, or retaliation for assorted grudges. In a widening pool of indicters, there are bound to be women channeling George Washington Plunkett: “I seen my opportunities and I took ‘em.”

Which ones are they? None of us know. Not really.

What we do know is that something called sexual harassment is an imprecise but stubborn old nuisance sharpened into a crime by Catherine MacKinnon in the late ‘70s and codified by the Equal Employment Opportunity Commission (EEOC). As first introduced, the term referred to a loose chain of workplace irritants never to be confused with sexual battery, rape, or attempted rape. By now it has expanded into an all-purpose indictment, a universal solvent for turning radical feminist choler into a blunt object.

Like that shapeless thing in the old sci-fi movie, “The Blob,” the concept of sexual harassment swallows everything it meets. It digests a degenerate thug like Harvey Weinstein together with a college student who makes an awkward pass at a girl, an office worker who tells a risqué joke, or a well-intentioned boss who compliments a woman on her dress. MacKinnon’s devouring blob is covered throughout the country by a mélange of federal, state, and city laws as a form of discrimination under human rights laws.

Delirium over harassment plays out like the courtroom scene in “Alice in Wonderland.” You remember it: The Queen of Hearts had made some tarts and someone took them quite away. Who did it? Theft is pinned on the Knave of Hearts, but evidence is a shambles, scanty at best. Accusations fly; denials tumble over each other. The king calls the jury to consider its verdict. His wife interrupts: “‘No, no!’ said the Queen. ‘Sentence first—verdict afterwards.’”

That is where we find ourselves now in the flood of unverifiable allegations hemorrhaging from college campuses and corporate offices to the Capitol. Huff and wrath arriving years, even decades, beyond their sell-by date ought to make us look closer at this inquisition.

People Could Have Resolved Many Incidents Long Ago

How many women had a knife at the throat while they were propositioned, their knees patted, or their backsides—maybe—fondled? It was not threat of bodily harm, actionable in itself, that kept women in resentful silence all these years. Timely retaliation seems to have been largely impolitic. Women—and a few men— kept mum until the coast was clear.

Not all but enough of them, particularly in Hollywood, seem to have been as much on the make as the men they rise to accuse years later. At the time, they were intent on other gains. Their silence-until-now tilts into collusion. It is too late to adopt the posture, hand over pudenda, of the Venus of Modesty.

Aphrodite of Knidos

Groping is high on the list of alleged offenses. Have women forgotten how to deal on the spot with the folkways of boors and lechers? We are not in crinolines. We can dig a high heel into an instep. Shout, kick, make a scene. Anne of Green Gables would have been capable of more grit than late-emerging complainants on network news.

But the codification of sexual harassment was intended less to enable women than to certify their victimhood and, simultaneously, to hobble masculinity. In the looking-glass world of harassment jurisprudence, every move, every exchange between a man and woman has become subject to forensic review. That is because heterosexuality was its intended target from the get-go.

The Idea Is to Subvert Cross-Sex Relationships

In “Toward a Feminist Theory of the State” (1989), Mackinnon famously characterized heterosexuality as “the eroticization of dominance and submission.” The social roles of men and women are “created through the eroticization of dominance and submission.” Sexuality itself is a form of power:

Gender, as socially constructed, embodies it, not the reverse. Men and women are divided by gender, made into the sexes as we know them by the social requirements of its dominant form, heterosexuality, which institutionalizes male sexual dominance and female sexual submission. . . . [Sexuality is] a social construct of male power: defined on men, forced on women, and constitutive of the meaning of gender.

In brief, masculinity is oppressive. Women need state clout to liberate them from the hierarchy of gender and its twin, harassment. Accordingly, at the height of the women’s movement, an obliging state adopted MacKinnon’s Marxoid reduction of sexuality to power relations.

The legal definition of sexual harassment is flexible, varying with the state you live in or in which you were allegedly harassed. It could range from a misdemeanor to a felony depending on . . . well, that depends.

Elasticity accommodates MacKinnon’s insistence on a woman’s feelings as the gauge of reality in these matters. She calls it rape “when a women has sex and feels violated.” Buyer’s remorse is indistinguishable from rape, as rape from harassment, because perception, not facts, is conclusive.

The subjectivity of perception intrudes on what might otherwise be no more than a private matter between two parties. Let me illustrate.

The subjectivity of perception intrudes on what might otherwise be no more than a private matter between two parties.

Not very long ago, a lesbian couple in my neighborhood wanted a baby. Not interested in adoption, they sought a pregnancy. Parishioners in the local Episcopal church, they asked their music director if he would donate semen.

Was the man made uncomfortable by the request? Did he consider himself humiliated? Might a request for his ejaculate constitute harassment? Had the choir loft suddenly become a hostile workplace? Possibly. But he did not say. He simply declined.

Imagine a heterosexual couple in the same parish approaching a single woman to ask if, perhaps, she would consider gestational surrogacy. Like the music director, she could agree or not. She could as easily call a lawyer to discuss grounds for a harassment suit. After all, the proposal was deeply distressing. She suffers the anguish of it whenever she tries to enter the church. How can she worship in a place haunted by a demeaning overture? Humiliation keeps her out.

Emphasis on personal response, however idiosyncratic or distorted, stacks the deck against men.

‘Consent Puts the Woman on Trial’

Earlier this month, in an interview in The Times of India, MacKinnon restated her signature contention that consent in sexual matters is an “unequal concept.” As her legal mind runs, “consent puts the woman on trial.” It is men as a class that harassment law was designed to target. Writing in the New York Times after the 1991 acquittal of William Kennedy Smith in a celebrated rape case, she declared that men are “sexually trained to woman-hating aggression.”

Lust for repressive measures with a chilling effect on free speech and association are intrinsic to harassment culture.

MacKinnon’s slander against heterosexual men is the gift that keeps on taking. Her assertion that gender is a tyrannical system of control, and that objectivity is mere cover for male bias, has moved like metastatic cancer through the bloodstream of contemporary culture.

One consequence—not wholly unintended—of four decades marinating in the language of gender oppression is the snowflake phenomenon on today’s campuses. Lust for repressive measures with a chilling effect on free speech and association are intrinsic to harassment culture. An entire generation has absorbed it. Error has no rights. Speech is violence. Threats to wellbeing lurk everywhere. Students are entitled to shelter from harassment by incorrect ideas, false ideals.

Harassment law was a calculated move in a grander project of revising the way the First Amendment is traditionally interpreted. Civil society must reject the limits of prior traditions, including standards of evidence. So, men can be convicted of harassment by the media, driven from their positions on the basis of hearsay without investigation into the validity of allegations. If they contest the charge, they face crushing court expenses and the maneuvers of enterprising or aggressive prosecutors.

Sexual Harassment Laws Are a Social Control Technique

Ultimately, what matters most in this cultural hysteria is not sexual harassment or female victimization. It is the ominous flight from due process. Sentence first—verdict afterwards. We are witnessing a replay on the level of farce of the old Soviet tactic of denunciation. Anyone can be an informer. Accusations alone, untested before a jury, are enough for today’s untiring people’s commissars.

Vague or overbroad harassment statutes are no mere oversight. They are a technique perfected by Lavrentiy Beria, chief of the secret police (NKVD) under Joseph Stalin. Stalin’s heirs thrive among campus officials, media pundits, EEOC bureaucrats, and politicians. Some 90 years after the purges of the 1930s, Stalin’s ghost is dressed in motley. But it still stalks. And under the parti-colored costume are bloody rags.

Could it be time to remove from criminal statutes an offense as pliable as sexual harassment? Consider returning it to where it belongs: in the domain of manners. By manners, I do not mean etiquette. I mean the principles that determine behavior and express the respect we owe one another. Return it, in short, to ethics and its sustaining virtues.