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Sexual Misconduct

devildavid said:
It is not.
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It is too. Now repeat yourself.

You've been shown how imprecise the law definition of sexual harassment is, and that is what makes it an umbrella law phrase. It is no different than the use of racism when religious bigotry is under discussion.

Remember what Jimmy Carter had in common with the Long Island Railroad? They both pulled out of Roslyn at 6:45 am. Per the definition of sexual harassment, repeating that lame joke to a woman is sexual harassment. A man rubbing himself against a woman in tightly packed commuter train during rush hour is sexual harassment. A woman supervisor demanding sexual satisfaction from an employee with a quickie in the janitor closet is sexual harassment. Looks like an umbrella, smells like an umbrella, walks like an umbrella. Cuba Gooding drunk is sexual harassment. I could go on for hours.
 
OldFatGuy said:
It is too. Now repeat yourself.

You've been shown how imprecise the law definition of sexual harassment is, and that is what makes it an umbrella law phrase. It is no different than the use of racism when religious bigotry is under discussion.

Remember what Jimmy Carter had in common with the Long Island Railroad? They both pulled out of Roslyn at 6:45 am. Per the definition of sexual harassment, repeating that lame joke to a woman is sexual harassment. A man rubbing himself against a woman in tightly packed commuter train during rush hour is sexual harassment. A woman supervisor demanding sexual satisfaction from an employee with a quickie in the janitor closet is sexual harassment. Looks like an umbrella, smells like an umbrella, walks like an umbrella. Cuba Gooding drunk is sexual harassment. I could go on for hours.
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It is not.
 
The Aussies conflate as well as the Americans.

Sexual harassment
Examples of sexual harassment include staring or leering, unwelcome touching, suggestive comments, taunts, insults or jokes, displaying pornographic images, sending sexually explicit emails or text messages, and repeated sexual or romantic requests. It also includes behaviours that may be considered criminal offences, such as sexual assault, stalking or indecent exposure.
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Rape, sexual assault and sexual harassment: what’s the difference?
 
For the benefit of those who need it.

Example of a Statute That Is Void for Vagueness
A state legislature enacts a statute that criminalizes “inappropriate attire on public beaches.” Larry, a law enforcement officer, arrests Kathy for wearing a two-piece bathing suit at the beach because in his belief, women should wear one-piece bathing suits. Two days later, Burt, another law enforcement officer, arrests Sarah for wearing a one-piece bathing suit at the beach because in his belief, women should not be seen in public in bathing suits. Kathy and Sarah can attack the statute on its face and as applied as void for vagueness. The term “inappropriate” is unclear and can mean different things to different people. Thus it gives too much discretion to law enforcement, is subject to uneven application, and does not give Kathy, Sarah, or the public adequate notice of what behavior is criminal.
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http://www.opentextbooks.org.hk/ditatopic/28196
 
Sexual Harassment: A Strange, Vague "Tort"
But the courts that don't enforce the requirement of discriminatory intent also typically interpret "unwelcomeness" so broadly as to make it meaningless as a limit on harassment claims. They assume that harassment is "unwelcome" whenever a plaintiff is subjectively offended by it, even if the defendant had no way of knowing that.... By interpreting "unwelcomess" as purely subjective, they have effectively dispensed with any notice to the accused, who is now deemed a harasser if his speech unintentionally creates a hostile environment.

What is a "hostile environment" is a very vague notion, as a court noted in Pasqua v. Metropolitan Life Ins. Co, 101 F.3d 514 (7th Cir. 1996). Indeed, a Maryland civil rights agency warned that "the legal boundaries" of what is actionable "are so poorly marked," that "the best course of action is to avoid" any potentially offensive remarks. Reflecting the ambiguity, federal appeals courts differ greatly among themselves as to what conduct they believe is severe or pervasive enough to create a hostile environment. Within the same district, different juries often find starkly similar conduct to either not constitute harassment at all, or to be so patently and egregiously harassing as to warrant punitive damages.
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Sexual Harassment: A Strange, Vague "Tort" - PointOfLaw Forum
 
Harassment Law and Free Speech Doctrine
Harassment Law and Free Speech Doctrine


What Speech Does "Hostile Work Environment" Harassment Law Restrict?
II. HOW THE LAW'S VAGUENESS INCREASES ITS BREADTH

If one takes at all seriously what the Supreme Court has said, this oversuppression is precisely the effect that vague laws have. Vagueness leads people "to `steer far wider of the unlawful zone,´ than if the boundaries of the forbidden areas were clearly marked. Those . . . sensitive to the perils posed by . . . indefinite language, avoid the risk . . . only by restricting their conduct to that which is unquestionably safe." 66 Unless the Court was talking through its hat when it said this, the risk of employers "steer[ing] far wider of the unlawful zone" because of the rule's vagueness has to be considered in determining the true magnitude of the speech restriction. 67 As the Court held in Reno v. ACLU, in determining the breadth of a law, we must look to whether "a speaker [could] confidently assume that [his speech] would not violate the CDA"; the "vague contours of [a law's] coverage" "present[] a greater threat of censoring speech that, in fact, falls outside the statute's scope." 68

In fact, consider the suggestion to employers given by Professor Deborah Epstein, who disagrees with my estimation of the breadth of harassment law. Contrary to the position I've just outlined, she argues that "an employer can easily create a narrow, speech-protective antiharassment policy that minimizes any chilling effect":

One strategy is to explain to workers that they may make gender-specific or sexual comments until they receive an indication from a particular employee that such statements are unwelcome. . . . Once a worker has indicated that the speech is unwelcome, the speaker should be directed to either stop or set up a meeting with a designated EEO officer for advice.​

Employees can thus only say "gender-specific or sexual" things -- and I assume this includes supposedly sexist political or social statements, sexually themed jokes, and so on 70 -- until one listener objects. At that point, they must either shut up or schedule a meeting with a "designated EEO officer" before speaking further.
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What Speech Does "Hostile Work Environment" Harassment Law Restrict?
 
Legislating #MeToo: Turning a Hashtag into Law
Title VII does not define the term “sexual harassment.” The Supreme Court, however, has referred to the Equal Employment Opportunity Commission (EEOC) Guidelines in interpreting what constitutes sexual harassment under Title VII. In Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64-67 (1986), the Supreme Court noted that the EEOC Guidelines, 29 C.F.R. § 1604.11(a), define sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” that are explicitly or implicitly made a condition of an individual’s employment, used as a basis for employment decisions affecting the individual, or have the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” The Supreme Court has also interpreted Title VII to prohibit sexual harassment as an unlawful form of gender discrimination that can occur in two ways. Quid pro quo harassment occurs when an employer conditions an employment decision on an employee’s fulfillment of a sexual demand, and hostile work environment harassment occurs when “severe orpervasive” conduct “create an abusive working environment” so as to alter conditions of employment. See Meritor, 477 U.S. 57, 64–67.

Similarly, the New York State Human Rights Law (NYSHRL) also does not provide a definition of sexual harassment. Nonetheless, New York courts follow Title VII in determining whether sexual harassment has occurred under the NYSHRL; thus, sexual harassment claims are typically evaluated similarly under Title VII and the NYSHRL. Perks v. Town of Huntington, 251 F.Supp.2d 1143, 1158 (E.D.N.Y. 2003) (citing Sowemimo v. D.A.O.R. Security, Inc., 43 F.Supp.2d 477, 484 (S.D.N.Y. 1999)).
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https://www.weil.com/~/media/mailings/2018/q3/july_2018_employer_update.pdf
 
The Feminist Reformation
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"Sinners in the Hands of an Angry Goddess"
by Angelique Huntz, BS, MSW, JD, OM, DBE, OBGYN
​
 
On cultural transformations of sexuality and gender in recent decades
Western cultures have witnessed a tremendous cultural and social transformation of sexuality in the years since the sexual revolution. Apart from a few public debates and scandals, the process has moved along gradually and quietly. Yet its real and symbolic effects are probably much more consequential than those generated by the sexual revolution of the sixties. Sigusch refers to the broad-based recoding and reassessment of the sexual sphere during the eighties and nineties as the "neosexual revolution". The neosexual revolution is dismantling the old patterns of sexuality and reassembling them anew. In the process, dimensions, intimate relationships, preferences and sexual fragments emerge, many of which had submerged, were unnamed or simply did not exist before. In general, sexuality has lost much of its symbolic meaning as a cultural phenomenon. Sexuality is no longer the great metaphor for pleasure and happiness, nor is it so greatly overestimated as it was during the sexual revolution. It is now widely taken for granted, much like egotism or motility. Whereas sex was once mystified in a positive sense - as ecstasy and transgression, it has now taken on a negative mystification characterized by abuse, violence and deadly infection. While the old sexuality was based primarily upon sexual instinct, orgasm and the heterosexual couple, neosexualities revolve predominantly around gender difference, thrills, self-gratification and prosthetic substitution. From the vast number of interrelated processes from which neosexualities emerge, three empirically observable phenomena have been selected for discussion here: the dissociation of the sexual sphere, the dispersion of sexual fragments and the diversification of intimate relationships. The outcome of the neosexual revolution may be described as "lean sexuality" and "self-sex".
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On cultural transformations of sexuality and gender in recent decades
 
Links to articles related to the thread theme:

#MeToo has a 'chilling effect' on workplace camaraderie
#MeToo has a 'chilling effect' on workplace camaraderie - Chicago Tribune

Five rules for the office in the #MeToo era
Subscribe to read | Financial Times

The #MeToo movement took the world by storm. Then it met the French resistance
The #MeToo movement took the world by storm. Then it met the French resistance - ABC News (Australian Broadcasting Corporation)

Has #MeToo divided women?
But as the allegations piled up against accused abusers and rapists, the phenomenon simultaneously exposed rifts and differences of opinion between women. There have been discussions about the aims of the movement: should it focus on workplace assaults, or be a much broader equality campaign? What tactics are useful? And what should happen when accusations turn out to be false?

One potential generational divide reared its head early on, with some older feminists decrying what they saw as a focus on victimhood. In essence, they were telling their younger counterparts to toughen up and get shrewder about the intentions of men.
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Has #MeToo divided women? - BBC News
 
Elegy
On the Vanishing of the Earth Mother



"The Fall of Modern Man" I calls it

or as Shakespeare somewhere put it:

"A Second Fall of Man"

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Women's Liberation that is to say

in a short half-century

has proven itself to be

the ascendancy of the Phallic Mother


Alas!

Alack!

We want our money back!


(Word order inverted

to protect the integrity of thought or

as Shakespeare nowhere put it:

to discourage facile thought

and entitled social-media-like vaporing—

both also in the ascendancy—

and instead to encourage as far as possible

the lost art of critical thinking

in soi-disant "enlightened" circles

and squares

triangulating

toward a new geometry of Eros

for a new millennium

or some such miracle of modern science)


—Angel Trismegistus​
 
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Lewis Carroll’s Shifting Reputation
Why has popular opinion of the author of Alice’s Adventures in Wonderland undergone such a dramatic reversal?
​
Since the 1930s, biographers and scholars have questioned the nature of Dodgson’s relationship with the 10-year-old girl to whom he first told the story, and since the 1960s his work has been associated with the psychedelic wing of the countercultural movement. When some of Dodgson’s photographs—he was an accomplished portraitist—were exhibited in 1999, a New York Times reviewer quoted Vladimir Nabokov (who had translated Alice into Russian) as saying there was “a pathetic affinity” between the photographer and the pedophilic narrator of Nabokov’s novel Lolita. Tim Burton recently described Dodgson’s stories as “drugs for children” and Wonderland as a place where “everything is slightly off, even the good people.”

The decades of interpretation and reinterpretation have created a widening chasm between how modern readers perceive the author and how they receive his work. “Lewis Carroll is treated like a man you wouldn’t want your kids to meet,” says Will Brooker, author of Alice’s Adventures: Lewis Carroll in Popular Culture, “yet his stories are still presented as classics of pure, innocent literature.” As Burton’s movie beckons us down the rabbit hole once again, it might be wise to ask: How did we arrive at this curious state of affairs?
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Lewis Carroll's Shifting Reputation
|
Arts & Culture
| Smithsonian
 
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Jeremy Piven says he's 'collateral damage' in #MeToo movement: 'I took one for the team'

The Entourage alum, 53, has said little about the multiple sexual misconduct allegations against him beyond his initial strong denial that they were "absolutely false and completely fabricated" and submitting to a detector test in an effort to clear his name. He lost his show, Wisdom of the Crowd, amid the controversy, and decided to go the road doing standup instead.

He blames the media for the #MeToo movement going off the rails. “Who benefits from putting that story out?” he asked. “It’s all about the clicks... The editors basically said: Go out there and get me more. Get me those Hollywood actors. Let’s round them up.” He describes the period as a “feeding frenzy.” He also brought up Geoffrey Rush winning his #MeToo defamation case in May. He said it wasn’t widely reported because it goes against the media’s #MeToo narrative.
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Jeremy Piven says he'''s '''collateral damage''' in #MeToo movement

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Geoffrey Rush Wins $1.9 Million In Defamation Case | PEOPLE.com
Geoffrey Rush wins $1.9m payout on #MeToo defamation case - CNN
 
"Heroic Rape"
A feminist interpretation

(See Post #219 above for an image of the famous Poussin painting.)

Images of Rape: The "Heroic" Tradition and its Alternatives​

Poussin's Rape of the Sabines, painted in the 1630s and today in the New York Metropolitan Museum, may well be the rape image most familiar to American art historians. It illustrates an episode from the early history of ancient Rome. The Romans, unable to obtain wives peacefully, staged a festival, invited the neighboring Sabines, and, at a signal from Romulus, each violently seized a Sabine woman. Art historians /p. 8: generally focus on Poussin's classical style or his sources in ancient art and literature. The painting is often termed "heroic" or cited as an embodiment of Poussin's belief that the highest goal of art is the depiction of noble human action. Avigdor Arikha, for example, finds the work "sublime...heroic...divine" and argues that "Poussin looked for nobility in his subject."

Not only does the artist reflect Roman attitudes by idealizing the crimes of their ancestors, he also accepts the Roman concept of raptus, which was quite different from the modern definition of rape. In ancient Rome, raptus meant "carrying off by force;" it was a crime of property and included thefts of all kinds. If violence was a necessary component of this crime, sexual intercourse was not. Similarly, in Poussin's painting, although the sexual aspect is implied, intercourse is not explicitly depicted. Roman law did not view the crime from the woman's point of view. Rather raptus was a crime against the woman's husband or guardian. Poussin reflects this view of rape in the major figure group on the right, which shows a Sabine father struggling against a Roman abductor.
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"Heroic" Rape Imagery
 
#MeTooFar​


When #MeToo goes too far

For the first time, the #MeToo movement has taken down a man who was accused not of sexual harassment or assault but of failing to respond to someone else's bad behavior with sufficient gravity and moral outrage.

That is what is fast becoming unacceptable. And it is what is likely to take down quite a few more powerful men before this cultural moment comes to an end. Not for harassing or assaulting women. But for failing to respond with adequate severity to the men who do.
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When #MeToo goes too far
 
Leda and the Swan​

Leda and the Swan
W. B. Yeats - 1865-1939

A sudden blow: the great wings beating still
Above the staggering girl, her thighs caressed
By the dark webs, her nape caught in his bill,
He holds her helpless breast upon his breast.

How can those terrified vague fingers push
The feathered glory from her loosening thighs?
And how can body, laid in that white rush,
But feel the strange heart beating where it lies?

A shudder in the loins engenders there
The broken wall, the burning roof and tower
And Agamemnon dead.
Being so caught up,
So mastered by the brute blood of the air,
Did she put on his knowledge with his power
Before the indifferent beak could let her drop?


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William Butler Yeats, widely considered one of the greatest poets of the English language, received the 1923 Nobel Prize for Literature. His work was greatly influenced by the heritage and politics of Ireland.
Leda and the Swan by W. B. Yeats - Poems | Academy of American Poets



Leda and the Swan
Paul Cézanne - circa 1880-1882
File:Paul Cezanne Leda au cygne.jpg - Wikimedia Commons

Correggio, Leda and the Swan
File:Correggio - Leda and the Swan - Google Art Project.jpg - Wikimedia Commons


 
The College Rape Overcorrection
Sexual assault on campus is a serious problem. But efforts to protect women from a putative epidemic of violence have led to misguided policies that infringe on the civil rights of men.
by Emily Yoffe
​
Unfortunately, under the worthy mandate of protecting victims of sexual assault, procedures are being put in place at colleges that presume the guilt of the accused. Colleges, encouraged by federal officials, are instituting solutions to sexual violence against women that abrogate the civil rights of men. Schools that hold hearings to adjudicate claims of sexual misconduct allow the accuser and the accused to be accompanied by legal counsel. But as Judith Shulevitz noted in the New Republic in October, many schools ban lawyers from speaking to their clients (only notes can be passed). During these proceedings, the two parties are not supposed to question or cross examine each other, a prohibition recommended by the federal government in order to protect the accuser. And by federal requirement, students can be found guilty under the lowest standard of proof: preponderance of the evidence, meaning just a 51 percent certainty is all that’s needed for a finding that can permanently alter the life of the accused.

More than two dozen Harvard Law School professors recently wrote a statement protesting the university’s new rules for handling sexual assault claims. “Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process,” they wrote. The professors note that the new rules call for a Title IX compliance officer who will be in charge of “investigation, prosecution, fact-finding, and appellate review.” Under the new system, there will be no hearing for the accused, and thus no opportunity to question witnesses and mount a defense. Harvard University, the professors wrote, is “jettisoning balance and fairness in the rush to appease certain federal administrative officials.” But to push back against Department of Education edicts means potentially putting a school’s federal funding in jeopardy, and no college, not even Harvard, the country’s richest, is willing to do that.
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College rape: Campus sexual assault is a serious problem. But the efforts to protect women are infringing on the civil rights of men.
 
The Philosophy of Sex

CONTENTS

PART 5: RAPE AND HARASSMENT

19. Is This Sexual Harassment?
Robin Warshaw

20. Sexual Harassment in the Law: The Demarcation Problem
Mane Hajdin

21. How Bad Is Rape?
H. E. Baber

22. The Harms of Consensual Sex
Robin West

23. Antioch’s “Sexual Offense Policy”: A Philosophical Exploration
Alan Soble

24. Consent and Sexual Relations
Alan Wertheimer​

https://philpapers.org/archive/SOBTPO-6.pdf
 
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