Susan Estrich - It's not all the same

  • Published in Columns

"Me, too," says the girl who was raped when she was barely old enough to know the word.

"Me, too," says the young woman who gets catcalls every day as she twirls her umbrella on the way to work.

"Me, too," says the woman who sleeps with the boss to keep her job.

"Me, too," says the one who gives as good as she gets.

The thing is, it's not all the same.

It's important for men and women to speak out about what troubles them, especially regarding the oppressions of gender. But that doesn't mean it all fits in the same box.

Rape is nonconsensual sex, usually involving force. But force can consist of a person pushing another person down and getting on top of him or her, which, with the sound off, may or may not look like sex.

When you hear someone denying nonconsensual sex, they're denying rape. "Nonconsensual sex" just sounds better. When you hear someone claiming to have been raped, he or she is claiming that the sex was nonconsensual and that he or she felt forced. To prove it, the jury will have to buy the force part. If they settle, you'll hear that it was a settlement for nonconsensual sex. Or more likely, you'll hear nothing at all.

Sexual harassment — at least the kind that is unlawful — is something that happens at work, among employers and employees. It's not what happens on the way home. It's not just anything that you find offensive or makes you feel uncomfortable. Much of that, sadly, is known as Monday. Or Tuesday.

Sexual harassment can take two forms. The first, and the first to be recognized, was quid pro quo harassment — this for that. Sleep with me (I'm being rhetorical, obviously) and you get the promotion. Don't sleep with me and you get fired. It's hard to prove and not as common as you think. It's also far less effective than you might think: More women sleep their way to the middle, or the bottom, than the top. The jobs you get by having sex are the jobs you lose when someone takes your place. Worse yet, these days, the folks who didn't get the chance to sleep their way to the bottom are now suing for the lost opportunity, as if it were that. All in all, it's a bad career strategy and a tough legal case. The only upside is if you win your case and get recover damages for the job you didn't get, the promotion that went elsewhere.

The second form of harassment, more common and more debatable, is hostile-environment harassment. To qualify as a hostile environment, the hostility is supposed to be severe and pervasive. And it's not enough if the plaintiff finds it severely and pervasively offensive. The reasonable person ("reasonable woman," we argued for years, because "reasonable person" was automatically interpreted to mean a man) had to have found it severely and pervasively offensive — originally meant to be a tough standard, close to constructive discharge, i.e., so bad you couldn't work there. I've always thought a better test is whether the defendant knew or intended to offend. But either way, the test is (in all but the most extreme cases) a somewhat unpredictable one. It varies based on who's doing the judging.

And then there's the rest of the stuff: bad jokes, bad taste, bad talk, the kind of stuff we tell our kids not to say in the backseat when they're younger; and when they're older, the stuff we cringe to hear coming from the television they're watching in the next room. Is it really a federal case? Enough to cost someone a career? This week it is.

But my biggest worry — sorry, Woody — is not that men everywhere are going to be the subject of a witch hunt (by whom? The other powerful men?) but that decent men are thinking twice before choosing a young woman to mentor or take to professional lunches or invite to work on cases requiring out-of-town travel. I worry that young women, already starved for mentors, are going to find them even harder to find. Unintended consequences. If only #MeToo meant they had new mentors, too.

(Susan Estrich is a professor of Law and Political Science at the University of Southern California Law Center. A best-selling author, lawyer and politician, as well as a teacher, she first gained national prominence as national campaign manager for Dukakis for President in 1988.)