Defining terms. What exactly is “sexual misconduct” and who decides?

By Robin . . . Every day brings new charges, it seems, of sexual misconduct on the part of a man in a prominent position. No area is safe. Among the accused are those in the entertainment and media fields, political leaders, sports figures, and even a past president or two.

Like a tornado spinning off multiple, smaller tornados, every accusation results in dozens of stories and articles giving as many details as possible as to who, when, where, and how many, and then, inevitably, to new accusations. Little to nothing has been said that was not designed to ramp up the feeding frenzy to the next level.

Finally, ever so little, the tide is beginning to turn in that regard. Two pieces have been posted that remind us that not everyone accused is guilty, that even for those who are, there are different degrees of guilt, and that, for innocent and guilty alike, the erosion of constitutional protections and rights cannot be allowed without putting us all at risk.

Ruth Ann Daily, in “Overextending the definition of sexual assault is also harmful,” writes:

We are going to need some new words. As allegations of sexual misconduct continue to flood our mass media, the term “sexual misconduct” won’t suffice. Neither will “sexual assault” or “harassment.”

“Misconduct” is a handy catchall when we are not sure which actions under discussion are criminal and which are merely disgusting, but the legal terms of assault and harassment are surprisingly and unhelpfully broad.

Since the incidents recently revealed range from lewd remarks to forcible kissing to self-exposure to groping to rape, it’s clear we need new terminology and some careful redefinitions.

Why? Because degree of harm matters here, just as it does elsewhere.

Cathartic though it may be to share a #MeToo story, there’s a risk that labeling lesser offenses as “sexual assault” will give too many people a reason to roll their eyes and tune out those that are really serious.

The 93-year-old, wheelchair-bound George H.W. Bush brushing a woman’s posterior with his arm during a photo session and making a suggestive pun by way of apology? That may be socially inept, and the woman offended, but calling it “sexual assault” denigrates the more serious sufferings of others.

Rock star Gene Simmons greeting new female acquaintances with references to his (still-clothed) genitalia as “the fun machine”? It is gross, rude and stupid, but is it a crime?…

And she concludes:

If, in our rush to address a true problem, we are careless with definitions…we risk losing some good things: the consoling pat of a hand on one’s forearm, the affirming clap of a hand on one’s shoulder, words of affirmation or admiration that aren’t sexual, just human.

We will lose these things because doing and saying nothing will be the only safe course.

Punishment is needed for newly revealed crimes, but the punishment can’t fit the crime unless the crime is clearly defined. Far from the off-the-cuff world of Twitter and Facebook, we have some serious thinking to do.

And almost as though she were continuing the same thought, over at With Justice for All,  Shelly Stow in “It’s time to stop and think about accusations from years gone by” says:

Something is happening in this nation that should cause serious concern to every American.

It is being praised by many as being an incredible break-through, something whose time has finally come; and it bestows on those who are speaking out the status of brave heroes – or heroines – for opening the floodgates.

And those who have serious reservations aren’t saying much of anything. Why not?

They know all too well the fate that awaits them if they do, the sneers, the looks, the accusations. Rape apologist. Aiding and abetting the enemy. Victim-blamer.

And there’s something else. Deep in the heart of everyone who is thinking, “Wait a minute; slow down; this has the potential to destroy so many innocent,” there is the knowledge that some of it is true. People in power have, without doubt, used that power to extract sexual favors from those with less power. It is an abhorrent and vile truth.

And then she asks a series of questions that beg to be answered – or at least discussed.

But does that justify jumping on every bandwagon that leaves the starting gate and assuming the worst about every person, celebrity or not, about whom an accusation is made?

So what should we do? Should we just close our eyes and allow real abuse to continue? No. But should we slow down and have a conversation about how easy it would be, how easy it is, to destroy someone who is innocent? Should we recognize that this is a bandwagon that is too easy to jump on? Should we at least talk about the part that is played by the emergence of the “social justice warrior” movement and the new feminism, a feminism that appears to seek not fairness and equality but domination and even revenge?

Should we recognize that, with this issue, a highly cherished constitutional protection is disappearing right before our eyes? The burden of proof has always been on the accuser, on the state, to prove guilt. That is shifting and morphing every day, with every accusation. Each accused person is expected to prove he is innocent or else be judged guilty. That has terrifying implications, not only for those accused of crimes of a sexual nature but also for those accused of any crime.

And in attempting to prove innocence, is anyone talking about the sheer impossibility of proving a negative, especially in response to something alleged to have occurred decades ago? Or for those not so innocent, the impossibility of mounting a legal defense when the accusations and any possible witnesses are from a lifetime ago?

In answering her own questions, she says, “We must. Otherwise, who is safe? Not your father, your brother, your husband,  your son; not your friend. Not you.”

And I agree.







Robin Vander Wall

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Robin is NARSOL's chair, the managing editor of the Digest, director of development, and provides assistance to the webmaster in keeping our websites running smoothly. He also serves as founder and president of Vivante Espero, NARSOL's 501(c)(3) foundation and legal fund.