by Bruce S. Thornton<\/p>\n
FrontPage Magazine<\/em><\/p>\n We can\u2019t say much about the veracity of the sexual harassment complaints leveled against Herman Cain 15 years ago, given the lack of specific detail or even the names of the accusers. But this mini-scandal provides an opportunity to revisit one of the most pernicious examples of government intrusion into our lives and workplaces.<\/p>\n As with most bad laws, good intentions paved this road to Big Brother\u2019s regulatory hell. No one should get away with sexual quid-pro-quos, sleazy innuendos, the abuse of power to gain sexual favors, or grubby groping in the mailroom. But sexual harassment these days is seldom about those obvious offenses. Consider the legal definition of harassment, which occurs when \u201cunwelcome comments or conduct based on sex, race or other legally protected characteristics unreasonably interferes with an employee\u2019s work performance or creates an intimidating, hostile or offensive work environment,\u201d as the\u00a0FCC<\/a>Encyclopedia explains the law. You\u2019ll notice that harassment is no longer about victimized women, but a whole host of \u201cprotected characteristics,\u201d which include \u201crace, color, religion, sex (whether or not of a sexual nature and including same-gender harassment and gender identity harassment), national origin, age (40 and over), disability (mental or physical), sexual orientation, or retaliation.\u201d<\/p>\n We shouldn\u2019t be surprised that enshrining into law notions as vague and subjective as \u201cintimidating,\u201d \u201chostile,\u201d or \u201coffensive,\u201d and then applying them to such a broad group of potential victims, will end up with the government intruding into people\u2019s lives at the expense of their rights and freedom. Such elastic terms will mean whatever anybody, no matter how hypersensitive, neurotic, stupid, humorless, or Machiavellian thinks they do at any given time. Additionally, such subjectivity ends up in grossly unfair applications of harassment law. Flirtation that is clumsy or unwelcome suddenly becomes criminal harassment depending on the undesirability or repulsiveness or status of the perpetrator. Clever banter or sophisticated sexual wit likewise changes into harassment depending on the mood of the victim and her changing feelings for the person.<\/p>\n The consequences of the\u00a0ad hoc<\/em>\u00a0standards at the heart of sexual harassment law are most obvious in politics. Bill Clinton\u2019s antics as governor and president were textbook sexual harassment behavior. Yet the feminists and progressives gave him a pass, instructing puritanical, repressed Americans that it was none of their business. What a change from the sputtering high dudgeon on display when Clarence Thomas was nominated to the Supreme Court, or from the scrutiny Herman Cain is being subjected to based on anonymous accusers and vague charges about \u201cinappropriate\u201d behavior, even as the media barely mentions the numerous genuine sexual assaults and rapes going on at various Occupy Wall Street venues.<\/p>\n Yet it isn\u2019t just in politics that sexual harassment charges are weapons to be used against one\u2019s enemies. The same thing happens in mundane office disagreements or personality clashes. When I was the chairman of my department, I was considered \u201cmanagement\u201d and so had to be involved with sexual harassment complaints. Every single one was the result of a factional squabble among faculty that had nothing to do with sexuality or even gender discrimination. Actual charges included such silliness as the offender\u2019s wearing overpowering cologne, or failing to acknowledge something the complainant put in the offender\u2019s mailbox. No matter how juvenile, such charges can be effective. Faced with an investigation, most people will start monitoring their behavior and restricting their speech just to be on the safe side, since employers anxious about liability will err on the side of caution: they will investigate all charges, no matter how flimsy, and buy off accusers, as Cain\u2019s were, rather than face a potentially more expensive lawsuit and the intrusion of federal Equal Employment Opportunity Commissioners inquisitors into their business. It\u2019s simply more cost effective to enable a \u201cchilling effect\u201d on an individual employee\u2019s freedom than to take on a government bureaucracy backed by the coercive power of the courts.<\/p>\n Ultimately the worst danger of such a badly written law comes from bestowing on the state and the courts the power to regulate and intrude into our personal interactions and freedom. In a free, open, and diverse society, our encounters with one another are necessarily fraught with tension, disagreement, and conflict. The threshold of offense differs from person to person, or even from moment to moment in the same person. Given such a wide variety of standards and thresholds of offense, discomfort, distress, appropriateness, or insult, in a free society people have to accept the possibility of hearing or seeing something they don\u2019t like, for the alternative is a government-enforced limitation of freedom that in the long run is more pernicious than hurt feelings.<\/p>\n Such restrictions are precisely what have happened in universities, the presumed bastions of free thought and expression. Many university \u201charassment codes\u201d list jokes, cartoons, gestures, facial expressions, kidding, and \u201csexual\u201d remarks as punishable harassment.\u00a0For example<\/a>, at California State University Monterey, sexual harassment \u201cmay range from sexual innuendoes made at inappropriate times, perhaps in the guise of humor, to coerced sexual relations.\u201d At UC Berkeley, \u201chumor and jokes about sex in general that make someone feel uncomfortable\u201d counts as harassment. Alabama State University targets \u201cbehavior that causes discomfort, embarrassment or emotional distress.\u201d And Iowa State University harassment \u201ccan range from unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people to serious physical abuses such as sexual assault.\u201d Leaving aside sexual assault or coercion, the effect of such broad and vague categories is to criminalize normal teen-aged and young adult behavior, not to mention leaving the interpretation of just what constitutes a \u201csexually harassing gesture\u201d up to the alleged victim and whatever university commissar investigates the incident.<\/p>\n And if that \u201cchilling effect\u201d on individual freedom isn\u2019t enough, earlier this year the Department of Education\u2019s Office of Civil Rights sent a \u201cdear colleague\u201d\u00a0letter<\/a>\u00a0that instructed schools investigating harassment complaints to use the \u201cmore likely than not\u201d or \u201cpreponderance of the evidence\u201d standard of evidence rather than the \u201cclear and convincing\u201d one. Worse yet, the right of the accused to confront his accuser is suspended, for allowing such questioning may be \u201ctraumatic or intimidating.\u201d The DOE apparently is unconcerned with the \u201ctrauma\u201d of being falsely accused of sexual harassment and subjected to an investigation stacked against him. \u201cDue process\u201d rights are acknowledged for the perpetrator, but only if they \u201cdo not restrict or unnecessarily delay the Title IX protections for the complainant.\u201d As Wendy Kaminer\u00a0observed,<\/a>\u00a0\u201cElevating the feelings of a complainant over the rights of an alleged perpetrator, who may have been falsely accused, reflects a presumption of guilt\u201d rather than the presumption of innocence at the heart of our judicial system.<\/p>\n And here is the true significance of the attack on Herman Cain. The whole affair is made possible by a textbook case of the government regulatory overreach and intrusion that afflicts our society at every level. Behind these regulations lie the progressive ideology that believes a cadre of experts know better how to organize society and regulate our interactions in order to achieve some utopian goal of egalitarianism or \u201cjustice.\u201d The consequences, however, include the further empowering of the state at the expense of individual rights, and the infantilizing of citizens that in the end compromises their freedom, for personal responsibility and self-reliance are the indispensable preconditions for political freedom. As de Tocqueville said about the necessity of self-reliance for democratic freedom: \u201cIt profits me but little, after all, that a vigilant authority always protects the tranquility of my pleasures and constantly averts all dangers from my path, without my care or concern, if this same authority is the absolute master of my liberty and my life.\u201d<\/p>\n \u00a92011 Bruce S. Thornton<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":" by Bruce S. Thornton FrontPage Magazine We can\u2019t say much about the veracity of the sexual harassment complaints leveled against Herman Cain 15 years ago, given the lack of specific detail or even the names of the accusers.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_newsletter_tier_id":0,"footnotes":"","jetpack_publicize_message":"","jetpack_is_tweetstorm":false,"jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","enabled":false}}},"categories":[22,330,86],"tags":[57,281,1023,553,1078,389,338,594,277],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p466Sb-qp","jetpack_likes_enabled":true,"jetpack-related-posts":[{"id":1643,"url":"https:\/\/victorhanson.com\/wordpress\/cain-lost-in-the-labyrinth\/","url_meta":{"origin":1637,"position":0},"title":"Cain Lost in the Labyrinth","author":"victorhanson","date":"November 11, 2011","format":false,"excerpt":"by Victor Davis Hanson National Review Online \u2018Abandon All Hope, Ye Who Enter Here,\u201d is the placard that Herman Cain must have read last week when he descended into the Sexual Harassment Inferno, from which he has not yet emerged. I thought it was only a matter of when, not\u2026","rel":"","context":"In "Women"","block_context":{"text":"Women","link":"https:\/\/victorhanson.com\/wordpress\/ahref=\/index.php\/categories\/angry-reader\/categorylink\/a\/women\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":5177,"url":"https:\/\/victorhanson.com\/wordpress\/sexual-harassment-or-censorship\/","url_meta":{"origin":1637,"position":1},"title":"Sexual Harassment or Censorship?","author":"victorhanson","date":"February 16, 2006","format":false,"excerpt":"Vague language in Executive Order 927 leaves one to wonder who might harass whom. by Bruce S. Thornton Private Papers Even as the ACLU frets over the privacy of people chatting with Al Qaeda on their cell phones or googling bomb-making instructions on public library computers, a more serious threat\u2026","rel":"","context":"In "Bruce S. Thornton"","block_context":{"text":"Bruce S. Thornton","link":"https:\/\/victorhanson.com\/wordpress\/ahref=\/index.php\/categories\/angry-reader\/categorylink\/a\/our-contributors\/bruce-s-thornton\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":5334,"url":"https:\/\/victorhanson.com\/wordpress\/elastic-definitions-of-sexual-harassment\/","url_meta":{"origin":1637,"position":2},"title":"Elastic Definitions of Sexual Harassment","author":"victorhanson","date":"June 23, 2004","format":false,"excerpt":"The high costs to free speech of vague legal terms and frivolous cases. by Bruce S. Thornton Private Papers Even as the civil liberties fundamentalists continue to fret over the Patriot Act and the treatment of terrorists in our custody, a more insidious and dangerous assault on our freedom, one\u2026","rel":"","context":"In "Bruce S. Thornton"","block_context":{"text":"Bruce S. Thornton","link":"https:\/\/victorhanson.com\/wordpress\/ahref=\/index.php\/categories\/angry-reader\/categorylink\/a\/our-contributors\/bruce-s-thornton\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":1635,"url":"https:\/\/victorhanson.com\/wordpress\/the-news-behind-the-news-from-herman-cain-to-blue-wall-street\/","url_meta":{"origin":1637,"position":3},"title":"The News Behind the News: From Herman Cain to Blue Wall Street","author":"victorhanson","date":"November 12, 2011","format":false,"excerpt":"by Victor Davis Hanson PJ Media It Doesn\u2019t Add Up Here are some things in the daily news that do not quite make sense. I.The Joe Paterno Implosion To the outsider, it is inexplicable how a coach\/former coach like Mr. Sandusky could serially molest boys, even after the crimes were\u2026","rel":"","context":"In "Identity Politics"","block_context":{"text":"Identity Politics","link":"https:\/\/victorhanson.com\/wordpress\/ahref=\/index.php\/categories\/angry-reader\/categorylink\/a\/american-culture\/identity-politics\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":8066,"url":"https:\/\/victorhanson.com\/wordpress\/the-end-of-feminism\/","url_meta":{"origin":1637,"position":4},"title":"The End of Feminism","author":"victorhanson","date":"December 5, 2014","format":false,"excerpt":"by Bruce S. Thornton \/\/ Defining Ideas California recently passed a law requiring that sexual encounters between students in universities and colleges can proceed only on the basis of \u201caffirmative, conscious and voluntary agreement.\u201d Failure to resist or to ask the partner to stop the encounter can no longer be\u2026","rel":"","context":"In "Defining Ideas"","block_context":{"text":"Defining Ideas","link":"https:\/\/victorhanson.com\/wordpress\/ahref=\/index.php\/categories\/angry-reader\/categorylink\/a\/defining-ideas\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":9482,"url":"https:\/\/victorhanson.com\/wordpress\/trump-politics-and-our-sexual-schizophrenia\/","url_meta":{"origin":1637,"position":5},"title":"Trump, Politics, and Our Sexual Schizophrenia","author":"victorhanson","date":"October 10, 2016","format":false,"excerpt":"\u00a0Conservatives should know better than to so quickly validate a dishonest narrative that benefits the other side. By Bruce Thornton \/\/ Front Page Magazine Online \u00a0 A few minutes into Sunday\u2019s debate Donald Trump\u2019s decade-old crude sexual banter with a reporter from an entertainment show was mentioned by the CNN\u2026","rel":"","context":"In "Trump"","block_context":{"text":"Trump","link":"https:\/\/victorhanson.com\/wordpress\/ahref=\/index.php\/categories\/angry-reader\/categorylink\/a\/trump\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]}],"_links":{"self":[{"href":"https:\/\/victorhanson.com\/wordpress\/wp-json\/wp\/v2\/posts\/1637"}],"collection":[{"href":"https:\/\/victorhanson.com\/wordpress\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/victorhanson.com\/wordpress\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/victorhanson.com\/wordpress\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/victorhanson.com\/wordpress\/wp-json\/wp\/v2\/comments?post=1637"}],"version-history":[{"count":2,"href":"https:\/\/victorhanson.com\/wordpress\/wp-json\/wp\/v2\/posts\/1637\/revisions"}],"predecessor-version":[{"id":1639,"href":"https:\/\/victorhanson.com\/wordpress\/wp-json\/wp\/v2\/posts\/1637\/revisions\/1639"}],"wp:attachment":[{"href":"https:\/\/victorhanson.com\/wordpress\/wp-json\/wp\/v2\/media?parent=1637"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/victorhanson.com\/wordpress\/wp-json\/wp\/v2\/categories?post=1637"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/victorhanson.com\/wordpress\/wp-json\/wp\/v2\/tags?post=1637"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}