One thing that did stand out for me once you mentioned it, is the insufficiency of the term “quid pro quo.” Because while it’s usually all jumbled together in, say, HR orientations and even the lecture in my women’s studies class last quarter, there’s really not *one thing* called quid pro quo. Instead there’s solicitation of compensated sex (have sex with me and you’ll get that promotion), and then there’s extortion (have sex with me or kiss your bonus goodbye.)

In non-business settings (say, down by the waterfront) both solicitation and extortion are considered straight-up crimes. So unless someone’s prepared to argue that crimes committed on the job are somehow ok the way, say, assault with a deadly weapon isn’t a crime if it happens on the ice at a hockey rink I don’t see why solicitation and extortion should be legal just because it happens at work.

figleaf

The simple solution to that would be to not treat it as exactly rape, but to instead create a category of extortion that involves sexual “favors” - as the press likes to call them. (Or a category of harassment that mimics extortion charges.)

At the moment, the problem isn’t just that someone who uses sexual harassment to blackmail or extort someone won’t be charged with any kind of rape, it’s also that the perpetrator is less likely to be convicted of the sexual harassment if the victim did the normal thing and gave into the harassment. While this has a lot to do with attitudes of juries, it also has to do with the fact that the legal system itself doesn’t even acknowledge the difference between sexual harassment that is done simply to do harm in and of itself and sexual harassment that is done with a specific goal in mind - other than running certain people out of the workplace anyway.

It’s not terribly realistic to ask juries to understand the very real harm done by quid pro quo harassment when the legal system doesn’t even fully acknowledge it.

Changing the charges to something more like extortion of blackmail allows for the distinction between attempted [rape/extortion] and [rape/extortion]. Maybe I’m putting to much trust in the American public, but I think even that small change would help a lot in getting people to think about qui pro quo harassment in terms of coercion and not in terms of “well she said yes, so what’s the problem?”

I don’t disagree, with you or Mickel above, but the devil is in the details. “Some degree of rape” seems to describe all hetero sex under MacKinnon’s model, which always struck me as pretty valid. But it’s not something you can build a coherent legal regime on without radically restructuring legal attitudes toward almost every other social relation as well.

The problem is that if we started treating economic coercion the same as, say, physical coercion under the law, every employer in existence would be a felon many times over. They’d be on the hook for kidnapping, wrongful imprisonment, conversion, enslavement, and in many cases battery. Landlords would be on the hook for robbery.

Sexual harassment in the US is not illegal because it is coercive or abusive; it is illegal because it targets one gender and not another. I agree that this is bizarre, but it’s how the law operates. If we were to try to construct a legal regime that treated it as illegal coercion, it would be difficult not to extend that reasoning to other forms of economic coercion. Which might be nice, but it’s not going to happen in a nominally capitalist society.

(N.B., I realize that the story actually involves attempted sexual assault, not just sexual harassment. But I’m responding only to this one comment you made.)

I very much agree.

I don’t remember the thread exactly (it was one of the really long ones at Alas), but I’ve thought this ever since I got into an argument with a pseudo-ally about sexual harassment and his comment that “of course the right thing to do would be to say no [to his coercion].”

The comment felt wrong to me from the start. As I thought about why I realized that if the only logical response is for the harassee to not give in the harassment, then why would harassment be criminal in the first place? The whole reason why it is criminal is because there is no “of course” about her saying no.

The whole point of the harassment is to put her in a position where she can’t say no. At least not without consequences that are arguably worse than saying “yes.” Which makes the “yes” a coerced “yes” and therefore any sexual contact that results is rape.

It was at this point that I realized that in reality, such rapists are actually even less likely to get convicted of even just the harassment (after all, how can it be harassment if she said yes?) and I had one of those moments where you just want to be a hermit for a decade or two.

Also, what togolosh said.

Two women filed complaints against Gutierrez but Jessica Utovich was not one of them.

One of the complaints mentioned that Utovich was in Marc Dann’s apartment in her pajamas- something that may turn out to be a scandal in and of itself but is completely unrelated to the sexual assualt cases.

I’ve worked in publishing and advertising for years, in many cases that’s not even true and even if the responsible party does work for a huge corporate machine where it is true, that is no excuse for bullshit headlines. Catchy is good, but misleading and misogynist is just shoddy, ass-tastic writing no matter who does it — writer or editor.