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Politics and Harassment

This is a very difficult issue but that doesn’t mean that we can’t write about it and discuss it. In fact, that is perhaps the reason why we should, because otherwise it takes its own course; and there are potential injustices going both ways.

The issue is sexual harassment in the workplace. This has likely always existed in societies, certainly not that this makes it any more acceptable. In our country, the first real public discussion of sexual harassment at work came from the Clarence Thomas hearings, where Anita Hill said that Thomas had more than a few times tried to have conversations about pornographic films, and had made a “joke” about pubic hair in his coke. The issue then was of course the fitness of Thomas to be put on the Supreme Court. He was confirmed despite Hill’s testimony; and perhaps because the Senate did not allow a woman who could have validated Hill’s statements, to testify And he is still there, one of the worst and most legally rigid and incurious Justices in history. And the issue of whether anyone at work should be required to put up with sexual harassment, and exactly what it is, has never gone away.

Sexual harassment is ordinarily looked at as something done by a man to a woman at work. Of course, there is no reason that it could not go the other way, and there are some such cases, as well as same-sex ones. The early concept of sexual harassment was usually focused on a man, a superior in position, making it obvious, or just suggesting, that if the woman does not sleep with him, or at the least go out with him, he will damage her career. In the days of say, the 1940’s, it was not uncommon for a powerful executive to hire a secretary for her looks, then have an affair with her, and then after he broke it off, to fire her This is certainly morally reprehensible, and it should be legally wrong. as well.The problem, as always, is proving the facts.

The concept of sexual harassment expanded, to include “hostile workplace environment,” which to me is an overbroad term, although of course in obvious cases, it should be punishable. For example, a “jocks’ club workplace,” where a bunch of men feel free to make remarks about sex, about women’s bodies in general, etc, is a classic case of hostile environment. But the term was expanded in a case two decades ago, to include a large judgment in favor of a woman who overheard a consensual conversation between a couple of men and women there who were telling sex jokes. She found it offensive to overhear, and got a monetary award. There was a situation where a woman objected to a man who had a picture of his wife in a bathing suit on his cubicle desk. I don’t know whether that was a legal case or not, but I did read that someone there ordered him to take it down. That kind of thing seems to me to go too far, and to be more about power and puritanism. But opinions always differ on these matters, of course.

There are so many examples. We could debate all day about what should be the boundaries in this area. Off course, there is more than legal damages at stake, there is the nature of the workplace environment. Companies desperately tried to protect against massive sexual harassment suits by making policies. Some made dating in the workplace absolutely terminable. Some made rules that any comments by a man about a woman’s clothes or appearance, no matter how complimentary, was to be considered sexual harassment, and punishable. How far do we want this to go? Some might say, all the way, the Mike Pence approach of never having any conversation at all with a woman unless your wife, or a third party, is present. Others would say that this is an overreaction; that many people have found romance in the workplace, and that it may well be their best chance to meet someone whom they can get to know over time, and maybe develop a deeper attraction than might be found n bars or matchmaking services. Do we want to throw all of that out, in the effort to balance the goal of having no one ever feel uncomfortable, without wanting to completely try to control nature? Put that way, it is not a simple balance.

Eventually,, businesses seemed to solve some of this, by hiring strong Human Resources departments, and instituting an approach where there were levels of complaints and punishments. The woman had to first go to an H.R. person and complain; then there usually was a disciplinary hearing in that department, and so on. Multiple or continued offenses would be grounds for termination, and there was a record,, to refute a claim of wrongful termination by the accused. Of course, that still did not stop all injustices either way, but it was an improvement.

In my legal field, I was aware of three male judges fired for sexual harassment. I knew them all, but of course don’t know all of the exact details. One involved a mild mannered-appearing judge who was accused of closing the door to his office when a female attorney was talking to him, and then trying to grab her in some fashion. Several people, including female attorneys, told me that they were pretty sure that this was a set-up, that the woman in question worked for a large entity which did not think that this judge was treating them fairly in cases, so they trumped up this charge. I have no real idea as to whether that was true or not. One was the presiding judge at one of the local courts,who was accused by a newer female judge at that court, who had actually been Anita Hill’s roommate at Yale; she was always very nice to me and the other attorneys in her courtroom. The male judge said that he was only trying to give her a hug after she had tried her first case. That sounded like a weak explanation, but it still seemed that firing was a strong punishment. However,, there may well have been some kind of internal investigation, to warrant the action. The other one involved an obvious firing of a judge who actually wrote what I guess used to be called “mash notes” to some female attorneys. He always seemed to be a nice enough guy, but that cannot be countenanced.

But now let’s look at the political world, and how sexual harassment allegations, in or even out of the workplace, have been used to ruin careers. That is not to imply that these allegations are made up, though sometimes they are. They are powerful, because the first reaction is often, “Oh, what a jerk, we must punish him and he must resign and never run for anything again!” There are many problems with that, most important of which is, the charges may not be true. Or they may be partially true, but exaggerated, or with parts made up; the power of wrapping lies or overstatements around one observable fact which makes it look like the others are also true. Or they may be out of context. There is no real way to know, and there is no trial, not even something equivalent to a workplace H.R. hearing.

We saw Eric Schneiderman, the Attorney General of New York, have his career destroyed by an article in the New Yorker which alleged that he had affairs with women subordinates, with whom he engaged in “rough sex.” This did not exactly fall under the usual definition of sexual harassment, but the effect was to force him to resign. No charges were ever filed, and it may have been that the crucial female who gave the story to the magazine, had been with him for over a year, engaging in a sexual relationship which he later wanted to break off. I did not study the case closely, and Schneiderman seemed like a jerk, but of course that was just in the story, not proven. Anyway, down he went.

We had Al Franken, where we first saw a photo, given to outlets by a model/TV personality named LeAnne Tweeden, whom I first knew about because she co-hosted a sports talk show in Los Angeles. She knew some sports; she had a relationship with a Dallas Cowboys player for a few years. She was a friend of Fox News, and apparently Roger Stone. She had a picture of a USO tour that she did with Franken, where she was supposedly asleep, and Franken was poised over her with a lascivious grin and his arms stretched out like in a horror movie. It seemed obvious to me that this was a staged photo, why else would it be there? I believe that the photographer said that it was staged There were other photos of Tweeden on the tour in provocative poses. That is sort of par for the course on USO tours. But when the Tweeden photo hit the media, there were immediate calls by some for Franken to resign. Then there were more women making various allegations of different sorts. One claimed that he put his arm around her for a publicity photo at a political event, and she felt that she was overweight, and was uncomfortable. A woman said that after Franken did a radio show which she was some part of; he tried to kiss her after the show but she turned her head away.

Eventually, there were eight or so women making various claims that Franken had done something or other that exceeded sexual bounds. None of these were investigated, apparently many people were ready to believe the women, thinking that there were so many of them, that they must be true. There were more widespread calls for him to resign. Franken denied the import of all the charges, and asked for a Senate investigation, as is the right of any senator. But the drumbeat was louder, and various Senate Democrats demanded that he resign, and he did. Some suggest that Democrats were concerned that if they let Franken have the investigation, they wouldn’t be able to go after Roy Moore. But there was immense difference between what Franken was accused of, and what Moore did. Meanwhile, Brett Kavanaugh is on the Supreme Court for life, and Franken is out of office. There has to be a lesson there, and if it is ignored, Democrats are perennial suckers.

Later, an article by Jane Mayer in the New Yorker, the same journalist who had worked with Ronan Farrow on the Schneiderman story, said that her interviews and followups with Franken accusers convinced her that they were all lying. This did not do Franken any good at that point, of course. The other day, I saw some random person ostensibly trying to defend Franken as compared to Trump, and saying, “At least Franken resigned for his actions.” What actions?

I believe, and I am certainly not the only one, that Franken was the victim of a planned and orchestrated political attack by Republicans. He was one of the most articulate and effective senators, he is the one who forced Sessions to recuse himself from the Russian collusion investigations, leading to the appointment of a Special Counsel. He was a threat to Trump, and Stone, and all of them, and they got rid of him, because they knew that Democrats would react in the way they did.

Katie Hill was a different story, but once again, we can note that no one said that she had an affair with Congressonal sttaff, she had one with a campaign staffer, a different matter. She chose to leave Congress, and we lost her seat; and I thought that she was a very effective Representative.

That brings us to Andrew Cuomo, not always popular in his home state, but who gained a great deal of praise for his leadership during an awful part of the Covid crisis. Then there was a recent story about nursing homes, and under-reported fatalities. He gave a news conference to try to explain. I do not know the details, I do not know if he is blameworthy. I do think that he has tried very hard to deal with the pandemic, and we know that Trump hates him. After this story, we now have two former female aides who claim that he sexually harassed them. Again, I have not read all the claims; they will change, anyway; there may be more, as with Franken. I have read that one woman claims that he asked her if she had ever had sex with an older man. There was another story that said that he mentioned strip poker. There are calls for him to resign, based on these allegations by the two women.

Even with all the problems and crises in this country, this story gains traction in the New York Times. One reason is obvious:sex sells. Another reason is that people who cannot figure out economics or political science, would rather latch onto something like this. A third reason, is that this is at least significantly engineered by Republicans, to get the focus off the insurrection and their votes against relief, and their cult. “Let’s get Cuomo!” is a fun game for them. And again, Trump, their idol, the person who had some kind of golden statue made of him, hates Cuomo.

I certainly don’t know what Cuomo said or didn’t say. I am not about to say that the allegations are completely false, or taken out of context, but they could be. What could out of context mean? Oh, if somehow he and the woman were talking about their dating lives, and he then asked her if she has ever had sex with an older man. If he said it, does it sound like a blatant come-on? Yes, the kind of thing some man might say if he hopes that the woman would evince an interest in him. It is not classy, and not appropriate in the workplace. I do not think it is awful, though. I don’t know how friendly they were. She could say, “Oh, I actually am only attracted to men younger than I am!” That would stop it. Or just honestly say, “Governor, I think we should get back to talking about our work.” Now, if she said that, and he persisted, that would be another matter. But one or two remarks, told out of context, in a work relationship of years, should certainly not be deserving of having Cuomo’s political career ruined. Who knows what she said before or after that? She is not going to tell us, of course.

And we should always remember that it is virtually impossible to prove the negative, unless it is a matter of locale; there is a bank robbery in Boston, and you can show that you were in Santa Fe on that day, with witnesses and hotel bills. But trying to prove that you did not say something, or that you only said it in response to what someone else was saying, is obviously futile. Far too many people think that allegations are almost equal to facts, but they are not. That is why we have a legal system, with rules of evidence. But in this era, people are virtually tried and convicted based on allegations alone,which seems terribly wrong.

Why would someone ever invent or exaggerate clams of being sexually harassed? Many motives come to mind. Money. Publicity. You are running for office and want to vault on this. One of the accusers of Cuomo is running for office. Dislike. Jealousy. Spite. Wanting attention. I am not saying that any of these are the case here, how would I know, but they should be taken into account. I am certainly not saying that most workplace claims of sexual harassment have any of those motivations, but some may. I am saying that when you are dealing with major political figures, there are those who want to destroy their careers, perhaps get someone in there who might be more favorable to them.

And we know that Republicans almost never resign in such situations, they just deny it all and go on. It is Democrats who are very willing to call for other Democrats to resign. It is a weapon which is ideal for Republicans, because it is never effectively used against them. Kavanaugh is on the Court, so is Thomas. Jim Jordan is a powerful Republican figure in the House. Meanwhile, Schnneiderman, Franken,and Hill are gone,and so may be Cuomo. Democrats need to think more about this issue, and not be so reflexively willing to accept allegations, particularly when they are almost always about words.

Our country is under serious assault from Republicans who are actually fascists.We cannot afford to let them pick off Democratic officials one by one, because of charges that one or the other said something a bit suggestive or inappropriate, unless we are trying for complete purity in our party, while the other party just focuses on winning and power.

One wishes that we could have both, but it is virtually impossible, by definition. We don’t want sexual harassment in the government workplace, but the definitions are not so easy to make. It is not like the criminal law, where there are well established and codified definitions of the various degrees of murder. They may slightly vary from state to state, but they are something that a prosecutor or defense attorney, a police officer,. or defendant can rely on as consistent. Beyond the obvious extremes, the area of sexual harassment, not a criminal offense, is open to interpretation. So what we have, in these public cases, are women coming forward at some point, maybe a year or five years later,, and saying that he said this, or made this joke, or asked them out, or leered at them, or said anything with any romantic or sexual connotation at all. And we don’t know if he said it, or in what tone, or following what conversation. And of course, if the accused person tries to explain or elucidate, he has probably lost from the start.

If I were an amoral political operative, which I would never be, and I wanted to eliminate a male political rival, I would try to do it through a sexual harassment allegation. You don’t have to prove it; it is amorphous in most cases, and there is no hearing or trial. Just amp it up through media, get a bunch of bots or followers to keep tweeting about how awful it is; wait for a few ambitious media members to write about it, and you’re about 80% of the way toward removing him from public office. Unless it is a Republican,of course, they just ignore it until it gets supplanted in the headlines.

This is not a game, of course, but I think it is to Republicans, who gleefully get Democrats removed from office in this way. It is their revenge for Anita Hill and Christine Blasey Ford, whose testimony did not even stop Thomas and Kavanaugh, but angered Republicans, who always want to get their way at every stage. When the facts are almost always ambiguous, trying to win some virtue points by sacrificing your own officials, is ultimately ineffective, and damaging to the interests of the people who need Democratic policies to be enacted,and to keep the fascists from seizing control, which is really what all this is about for them, just another “game” to try to rig in their favor.