Sex and the State...of Affairs

by Wendy McElroy

The latest Bill Clinton joke making the rounds concerns an projected movie entitled "Wag the Doll." The plot: a President whose popularity is slipping due to an ill-advised declaration of war hires a producer to stage a tawdry affair in order to boost his ratings. One reason Clinton's popularity seems to rise with each fresh accusation of sexual misconduct is because he enjoys the support of prominent feminists, who not only know a political ally when they see one but who also recognize that many of Clinton's detractors are actually attacking sexual harassment laws.

As an individualist feminist and critic of current sexual harassment laws, I agree with the mainstream feminist assessment: the laws may be severely weakened by the scandal. Indeed, this may be the only happy outcome of an otherwise dreary episode. When government controls sexual attitudes, rather than acts to prevent or to redress the use of force, the first casualties are freedom of speech and the right of every human being to reach a wrong conclusion, a sexually incorrect conclusion. When government imposes a social agenda into the business realm, it deprives everyone of the right to contract freely.

I applaud the weakening of sexual harassment laws that do not address physical harm. Other feminists offer a more complex reaction.

A Tension Within Feminism

Commentators have long perceived a tension, if not an outright hypocrisy, in those feminists who have excoriated Paula Jones as a gold-digger for accusing Clinton of harassment. "Where are the 'I believe Paula!' buttons?, they ask. Critics argue that Jones provides an overwhelmingly high level of evidence compared to the case brought against Clarence Thomas by Anita Hill, whom feminists loudly championed. Within the feminism itself, the tension has caused fissures. Heretics, like Nerra Sohani, have denounced the First Lady for betraying the feminist ideals she is supposed to represent. In the March 4th Salon Magazine, Sohani describes Hillary as reacting "in the manner of the traditionally oppressed" by "standing by her man."

The response of pro-Clinton feminists has become more defensive over time. Lorna Brett, President of the Chicago Chapter of the National Organization for Women, recently felt it necessary to defend NOW in the Chicago Sun Times (March 4) against allegations of being "the president's lap dog." And, when the New York Observer recently reprinted a candid conversation about Monica Lewinski between "liberal lipstick feminists" -- e.g. Nancy Friday, Katie Roiphe -- the eavesdropping revealed salacious snickering rather than political concern. This is hardly an expression of sympathy for the sexual victim of a powerful man.

As the accusations become more frequent and more credible, as those made by Kathleen Willey, the snickering has softened and even N.O.W. has felt the need to take a provisionally critical stand on Clinton. If Willey's charges are true, N.O.W. spokeswoman Patricia Ireland contends tat Clinton's behavior is sexual assault rather than sexual harassment, a far more serious charge which involves making unwanted physical contact rather than merely making abusive comments or proposals. Assault is a criminal charge: harassment is a civil one.

Willey has not escaped criticism, of course. Applying standards never contemplated in the Anita Hill case, feminists wonder why Willey remained in contact and on good terms with the purportedly abusive Clinton. Hill remained friendly with Thomas for twelve years before speaking out. Why the shift in standards? Feminists become outraged when critics "blame" battered wives for staying with their abusive husbands, yet they reject the common sense explanation offered by Willey, who desperately needed a powerful mentor at the time of her abuse and thereafter. Willey explained her reason for not filing a complaint, "Complain to whom? This is the President of the United States." She could have added that this is the head of the branch of government under which the Equal Employment Opportunity Commission operates -- the agency to which her complaint would have been directed.

Amidst the growing cacophony and confusion on sexual harassment, one feminist statement on the Clinton scandal assumes particular importance: namely, a March 5th op-ed in the New York Times entitled "Harassment Law Under Siege" by Catharine A. MacKinnon. It is significant for two reasons. First, for over a decade, MacKinnon has been a defining voice within feminist theory. For example, MacKinnon was pivotal in convincing the legal establishment that sexual harassment should be viewed as sexual discrimination under Title VII, the fair employment provi- sion of the 1964 Civil Rights Act. Second, the op-ed appeared in the highest profiled publication in America, the New York Times. Both factors lend the air of a position paper to the op-ed.

MacKinnon forges new ground...again

MacKinnon's position, which amounts to a defense of sexual harassment laws, cries out for analysis and rebuttal. First, however, it is important to comment on what MacKinnon does not say in her op-ed. She neither defends nor condemns Clinton. Moreover, she seems to sympathize with Paula Jones without saying a word in the woman's defense. Then, the argument quickly and subtly shifts to the far weaker Monica Lewinski case, which MacKinnon correctly assesses as having no relevance to sexual harassment in the work place. Monica and Bill, we are accurately informed, were two adults who willingly acted on a mutual attraction. If, indeed, they acted at all.

In filtering the Monica debacle, MacKinnon makes an essential distinction repetitively clear. In a short op-ed, she uses the phrases "sexual harassment in the workplace," "sexual abuse at work," "sexual harassment at work," "subordinate to the same man at work," and "harassment at work by law." The distinction is between harassment at work and harassment at "school". Although MacKinnon acknowledges that "being an intern at the White House was more like being at school than at work", she clearly states, "Both she [Monica] and Paul Jones were women subordinate to the same man at work..." By the standards of mainstream feminisms, what is the difference?

Harassment in the workplace is basically defined in one of two manners: (1) a quid pro quo, by which sexual favors are directly traded for professional gain or against a threat of professional loss; and (2) 'a hostile working environment' -- a phrase coined by MacKinnon -- in which women are threatened and disempowered. Neither definition seems to cover eagerly rendered oral sex, which is the worst scenario suggested thus far in the Bill and Monica soap opera.

Harassment in a school environment is defined differently. In Sexual Harassment: Confrontations and Decisions -- an antholo- gy which includes two MacKinnon essays -- Nancy Tuana contended that even innocent academic meetings can be coercive because of the power differential between a professor and student. Tuana calls this harassment an 'implicit unintended threat, [with] no intention to harm'.

Universities have scrambled to prevent such harm. For example, in September 1989, Harvard issued a guideline stating that innocent remarks could constitute harassment: "Alienating messages may be subtle and even unintentional, but they nevertheless tend to compromise the learning experience of both sexes...For example...calling only upon women in a class on topics such as marriage and the family..."

In a school environment, harassment tends to be divorced from intention and refers, instead, to the power differential between two people. If an internship at the White House can be seen as student relationship rather than an employment one, the question of sexual harassment in the Lewinski scandal becomes far more debatable. It is a debate from which MacKinnon wishes to flee.

The Willey accusations only makes the context shift away from a learning environment to a working one more imperative. Willey was a volunteer when the alleged abuse occurred which leaves open the question of whether feminists should apply employment criteria or learning environment ones to determine the presence of sexual harassment. Although Ireland pointedly calls the alleged abuse 'sexual assault' and not harassment, this is far from clear. One of the most commonly cited definitions of learning environment harassment comes from the researcher F.J. Tilly whose 1980 report to the National Advisory Council of Women's Educational Programs identified five types of sexual harassment, including general sexual comments; inappropriate sexual advances, which occur without sanction; sexual advances, which have the promise of rewards; sexual advances, which hold the threat of punishment; and, sexual assaults. This highly regarded and much cited study has been long considered a standard by which to judge the presence of sexual harassment.

Toward Sanity on Sexual Harassment

Ireland's statements would protect sexual harassment laws by defining the Willey situation to be sexual assault. MacKinnon wishes to protect sexual harassment laws by defining the Lewinski situation to be a work environment, even though she was not an employee. Let me follow MacKinnon onto what, for her, is the less shaky ground of harassment in the workplace and argue for the repeal of current laws. I detest many of the attitudes men express toward women in the workplace. But, for me, the essential question remains: should the government mandate social and sexual attitudes? More fundamentally: what is the purpose of law in society? I believe law should protect rights: that is, law should prevent and redress acts of violence against the person and property of individuals. It should not address peacefully expressed attitudes, however offensive they may be. It should not enforce virtue.

Apart from the moral costs of sexual harassment laws -- e.g. the damage to free speech, the intrusion into privacy rights, the glorification of government as a father figure -- the social costs are immense. An estimated 75% of American companies have instituted sexual harassment policies. These businesses spend huge amounts of money to educate employees on this issue, to settle law suits and prevent such suits from occurring. But money is only one of the costs of sexual harassment.

The less visible costs include: women are cast in the role of victims; women are losing male mentors who fear prosecution; and, imposing legislation upon attitudes only tends to harden them. There is an undeniable social problem. Women are not given the respect they deserve in any realm. But government is not the solution. In the final analysis, government may be the problem. Do we need to look farther than Clinton to see this principle in action?

True sexual harassment involves touching or other physically invasive behavior. Women can protect themselves in several ways, including:

1. When the harassment is physical beyond reasonable standards of friendship, women should to press criminal charges, such as assault or battery.
2. When the harassment is verbal, women must stand up for themselves on a face-to-face basis by confronting the verbal abuse and refusing to tolerate it.
3. Women should aggressively use the grievance procedures and remedies that almost every company has established. Unfortunately, most of the women who report harassment to researchers and the government admit that they never bothered to complain to their employers.

A key to resolving the sexual harassment issue is to return it the realm of tort law, which provides civil redress for private harms. The courts have a long history of viewing unwanted sexual contact as tortious -- usually when it is expressed in the form of battery or assault, as Clinton's fondling of Willey would constitute. Most feminists, however, resist the return to tort law because it would make sexual comments and propositions unactionable unless accompanied by physical trespass.

Although MacKinnon and I define sexual harassment in radically different terms, we agree one point: the Clinton debacle threatens both of our definitions. According to a March 16th CNN poll 43% of Americans believe Willey's claims of being sexually assaulted (and harassed, depending on which feminist standard is applied), while 40% "sided with the President." Yet, an overwhelming percentage of Americans believe Clinton is doing a good job as President and should be left alone to continue. What does it say for sexual harassment laws when most people believe sexual assault has occurred, but the offender should remain unpunished in his employment? What happens to the law when the majority of Americans sympathize more with the sexual abuser than with the victims? No wonder N.O.W. is beginning to take a stand. No wonder MacKinnon is publishing position pieces in the New York Times. Sexual harassment laws are in deep water, and they are swimming against the current of popular opinion.

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