
The Transformation of Sexual-Harassment Law Will Be Double-Faced - jseliger
https://www.newyorker.com/news/news-desk/the-transformation-of-sexual-harassment-law-will-be-double-faced?mbid=social_twitter
======
jeffdavis
Putting employers and schools at the center seems like the wrong approach. If
there is a victim and a perpetrator, why can't it be handled in court between
them?

Asking the employer/school to handle it is a recipe for injustice. Their
interest is to limit their liability and favor their most useful employees, in
that order. Justice is a distant concern.

~~~
scarmig
Centering employers and schools in programs to reduce sexual harassment has
developed as the consensus approach because it is where relatively privileged
women (often rich, often white) are most keenly affected by it. That's despite
the fact that, even once age-adjusted, students are victimized by rape at a
lower rate than non-students.

Why not courts? Courts are constitutionally required to have a higher standard
of evidence than other institutions. In the usual case where a rape has
absolutely occurred, the evidence often amounts to he-said/she-said. That's
rarely enough for a conviction. That's understandably deeply dispiriting to
anti-rape activists, so they move activism toward places that can afford lower
evidentiary standards.

Is that the right way? Who knows. But I think it may be best to treat sexual
assault as an epidemiological problem. That's hard to swallow--after all,
rapists are bad people and deserve severe punishment, not dry statistical
treatments. But given how hard it is to "fairly" prosecute rape, treating
programs to end sexual assault as interventions to decrease incidence and then
measuring how effective they are seems like it may be more productive in the
long term.

~~~
forgotpassagan
Letting schools handle it because the standard of evidence is lower is insane.
Rape is a serious crime, and suggesting we should lower the standard of
evidence because it's hard to prove is appalling. The one thing more important
than protecting potential victims is not punishing innocent people.

I know someone that was accused of rape years ago in school. Expelled, lost
scholarships, reputation ruined. All from some 'arbitration board' with no
trial. Thing was, the girl was a frequent liar and had a grudge against him
for kindling a relationship then going off to date someone else. The group of
friends connected to her, me included, all knew that. This guy was not the
shady or violent type at all. He had never even been to court before that.

My friend even claims he was with him that night but since we lived in the
same building he had no proof.

None of that mattered, they decided that he 'might be guilty' on her word and
proceeded to ruin his life. The exact thing courts were created to prevent,
arbitrary justice with no laws and a low standard of evidence.

Maybe we need a simpler solution. Cameras in all public areas of student
housing would catch a much larger proportion of rape. But no, that's too
simple, we need to change the laws so it's possible to get your life fucked on
someone else's word

~~~
late2part
"Letting schools handle it because the standard of evidence is lower is
insane. "

Thank you for saying it properly and so concisely.

------
drtillberg
The article's link to the Chinese cultural revolution is a hidden gem.[1][2]

[1]
[https://en.wikipedia.org/wiki/Struggle_session](https://en.wikipedia.org/wiki/Struggle_session)
[2]
[https://www.washingtonpost.com/news/worldviews/wp/2013/10/03...](https://www.washingtonpost.com/news/worldviews/wp/2013/10/03/you-
have-to-be-careful-about-using-the-word-struggle-in-china)

~~~
explainplease
Thanks for pointing that out. The stories in the Wikipedia article are
sobering. I hope we are not seeing a modern equivalent of struggle sessions in
our media now, but...

------
readams
As a society we need to have a much more sober response to this sort of
allegation. Immediate career-ending consequences based on a mere accusation
are ultimately bad for both accuser and accused, because it raises the cost of
making an accusation.

~~~
rectang
We've reached this place in part because formal avenues of responding to
harassment are so terrible. A lot of harassment cases involve sexual assault
or other crimes, but the police and the courts are often so indifferent or
hostile that they cannot even come close to fulfilling the role they should.

Improving how the criminal justice system handles such crimes would be a big
help, but it's a monumental task.

~~~
sheepmullet
> A lot of harassment cases involve sexual assault or other crimes, but the
> police and the courts are often so indifferent

Are they? Or are most sexual assault cases incredibly messy and unclear?

~~~
Avshalom
[https://news.ycombinator.com/item?id=15953907](https://news.ycombinator.com/item?id=15953907)

~~~
sheepmullet
A bankrupt and highly corrupt county does not represent the country as a
whole.

I do mean it as an honest question - is there evidence of widespread police
indifference to rape?

I'd like to know how often getting a rape kit done leads to a criminal
conviction. Does it double the likelihood?

~~~
Avshalom
[http://www.endthebacklog.org/backlog/where-backlog-exists-
an...](http://www.endthebacklog.org/backlog/where-backlog-exists-and-whats-
happening-end-it)

~~~
sheepmullet
So I've read a few pages of that site and it seems like the main advantage is
we can detect serial rapists.

It turns out in certain parts of the country there are a lot of serial
rapists.

So now we have realised it is worthwhile and we are spending tens of millions
to make sure we go through the backlog of rape kits to detect serial rapists.

Now that there is money budgeted to do the work the police and courts are
following through.

That doesn't show police/court indifference or hostility at all.

------
rectang
I hope that as time goes on we are increasingly able to see ourselves as all
in this together, rather than in a zero-sum game between genders.

~~~
existencebox
While I share your aspiration, let me make an inflammatory question for the
purpose of prompting thought. (I would hope readers take this as a neutral
statement; since obviously the women entering the workforce see it as a net
positive, but it may be a line of questioning to attempt to explain why it's
so easy to see it as a gender battle)

What if it is zero sum, or at least, approaching that? There are two phenomena
going on that make me contemplate this; double income household normalization,
and a somewhat sticky total # of jobs. As women further enter the workforce,
the mean household income will trend towards double income, and the labor pool
will be contested with more applicants, in both cases rendering a male
applicant at a substantial disadvantage (comparatively to history).

The way one could rebut this would be to suggest that this inflation hasn't
taken place, and that the total # of jobs has scaled accordingly.

A brief search hasn't turned up anything on my end, so don't take this musing
as any more than posing questions. My pessimism lends me to think that the
conflict I summarized above will be a rallying call for certain groups on both
sides of the fold for many years to come; recent political discourse does not
lend me hope for a broad view of "togetherness".

~~~
avz
> [...] sticky total # of jobs. As women further enter the workforce, the mean
> household income will trend towards double income, and the labor pool will
> be contested with more applicants, in both cases rendering a male applicant
> at a substantial disadvantage (comparatively to history).

Isn't this the lump of labor fallacy [1]?

I think the economic theory leads to a different description: As more women
enter the workforce, the aggregate income goes up. Some of it is spent and
becomes someone else's income. Some of it is saved in a bank which loans it
out or invests it. The receiving business then spends it and once again the
money becomes someone else's income.

IOW, as more people work, both aggregate demand and aggregate income rise. The
economy shifts into a higher gear.

[1]
[https://en.wikipedia.org/wiki/Lump_of_labour_fallacy](https://en.wikipedia.org/wiki/Lump_of_labour_fallacy)

~~~
Spooky23
It seems a little sketchy to me that apparently labor is exempt from the basic
laws of supply and demand. Fundamentally, enlarging the supply of workers,
through the entry of women, ending systemic discrimination against minorities,
elimination of early retirement while reducing demand should have an effect on
the price of labor.

I’ve worked for large institutions that have been performing the same work for
decades and I’m familiar with their employment statistics. By any measure,
they are using fewer person-hours of labor annually. About 40% less since
1997, about 60% less than 1987. One subdivision in particular replaced about
3,000 workers with 50 IT guys and about $10M in annual IT spend circa 1995.
Those labor costs are held in check by a constant stream of cheap contractors.

~~~
mannykannot
The basic laws of supply and demand have two sides, but you are just looking
at supply. The post you are replying to contains a suggestion as to why the
demand side may, at least in some circumstances, mask or compensate for
supply-side effects.

Large institutions that have been performing the same work for decades do not
fully represent the economy as a whole.

~~~
Spooky23
Where’s the evidence for a big increase in demand for labor? All signals
suggest the opposite.

The article and post that I replied to talked about aggregate income, which
isn’t the same as demand. Aggregate income is a particularly weasel-ly and
misleading stat, as wages across the board have been falling in real terms,
and usually excludes the people out of the labor force. When you eliminate
midrange and low end jobs, and don’t include the people making $0 in the
average, the average goes up.

Even in tech, specific verticals are in high demand. Once things get stable,
the relentless pressure of offshoring and *aaS deflates labor value.

------
AlexCoventry
> For more than three decades, we have understood sexual harassment to be a
> form of sex discrimination

A minor derail: In fact checking this, I learned that because sexual
harassment is federally treated as a violation of Title VII of the Civil
Rights Act, which forbids discrimination on the basis of sex, _it is a defense
if you bisexually harass people._

[https://www.natlawreview.com/article/trouble-so-called-
equal...](https://www.natlawreview.com/article/trouble-so-called-equal-
opportunity-harasser-another-cautionary-case-out-minnesota)

It's good that the legal system has found a way to shoehorn a fairly effective
discouragement of a vile and destructive societal tendency out of a law which
was not intended for the purpose. (I also learned that the CRA amendment
prohibiting discrimination against sex was added at the last moment, as a
poison pill, in the hope that doing so would make the bill untenable.) I think
the country would probably benefit from dedicated sexual harassment laws,
though. The current situation is pretty ethically incoherent.

------
jancsika
> Among the imperatives of #MeToo is that employers, and, indeed, all
> institutions, must take care to implement orderly processes in which reports
> of harassment are fairly and impartially investigated, and yield results
> that inspire confidence—to the benefit of victims as well as the accused.

That's the _author 's_ imperative.

#metoo has three imperatives:

1\. A smoke signal to communicate across long distances and allege abuse
against powerful _serial_ abusers more quickly than those alleged serial
abusers can use their power to divide and conquer the allegations.

2\. It is a shared statement by victims of sexual abuse (including male
victims) that investigations of people who hold power inside institutions have
been anything but fair and impartial.

3\. It is a day of reckoning for the people who have enabled the serial
abusers, in a desperate attempt to create a minimally workable environment
where people can try to have careers without having their genitals grabbed,
their spirit broken, and their faith in institutions shaken.

The imperative the author erroneously attributes to #metoo is certainly
important, and related. But it's different, and it seems like #metoo is merely
shoe-horned to make the article more relevant. (Does anyone think the
definition of sexual harassment wasn't already being broadened before #metoo?)

It's unfortunate, too, because I'd love to know how both Title IX and Title
VII are impacted by students' growing ability and proclivity to accumulate
allegations over social media against serial abusers. What does a college's
"honor court" or whatever do when it's not victim vs. accused but instead
multiple victims across different classes and campus locations vs. one
accused?

~~~
AstralStorm
The problem with those initiatives it's lack of validation. It sometimes
happens that other people follow the crowd on accusations. These effects
should be tested and measured before implementing what is essentially public
shaming.

------
ScottBurson
Here's a thought: maybe it should become standard practice for companies to
issue a hidden body camera to any employee who requests one.

I'm sure there would be lots of issues around this that I haven't thought
through yet, but it would certainly solve the evidence problem. Indeed, I
would expect the mere existence of the policy to put a major damper on
misbehavior.

~~~
AlexandrB
I really hate that the answer offered to many modern social problem seems to
be "more surveillance". I'm not saying it wouldn't help or that we shouldn't
do it but like police body cams this is only as effective as the people
charged with following through on the consequences. If a company retains
control of the camera and wants to bury the evidence they'll still do it.

~~~
ScottBurson
Yes, I think the recordings should be under the control of the employee who
requested the camera. It should be their choice what parts, if any, to show
the company — and they should have the ability to show them to a lawyer if
they choose.

Your concern is very reasonable, but that's why I didn't suggest just
blanketing the office with surveillance cameras.

~~~
Spooky23
You can already do that. In the age of smartphones, it’s trivial to record
audio for a whole day.

It’s not necessary either. The downside of capturing everything is that you
capture everything. The employee ends up getting canned for claiming a 30
minute lunch when she was gone for 40. A good, factual journal is the best
weapon in most cases.

------
nerdponx
_what strikes a reasonable person as “severe or pervasive” has been evolving_

This is an important point, and I think it represents a tremendous victory.

