To older criminal defense lawyers, the cognitive dissonance of some of our more passionate brethren is a matter of serious concern. There is simply no rational way to make sense of the simplistic knee-jerk condemnation born of social justice ideology for the constitutional rights upon which we rely, and for which we fight, every day.
At Above the Law, Toni Messina takes her best shot.
I don’t know a single woman who hasn’t been sexually harassed. Yet as criminal defense attorney who believes in the presumption of innocence, I wear two hats on how to deal with this. People guilty of sexual harassment and worse should be punished, but no person is guilty until proven so.
A curious way to begin, given the facial conflict in her words. To the extent there is a saving grace, perhaps it’s in the meaningless of the words “sexually harassed,” since she offers no definition and, perhaps like so many women, confuses them to mean whatever evokes a feeling of victimization rather than an offense that would require proof.
Women of my generation put up with it (at least in its less vicious forms) — slights, comments about clothes and body types, questions about how we could have made it so far in this or that business based on our brains alone. But the good news is that far less sexual harassment is tolerated today than when I was a younger.
With this, the mechanics of rationalization are revealed. “Slights, comments about clothes and body types.” The “less vicious forms” of sexual harassment. What is left unsaid is that these aren’t crimes, no less vicious in the least. Women of her generation “put up with it” because it was the ordinary way in which people interacted. A guy would compliment a woman’s appearance. A woman would mock a guy’s choice of tie. We could talk to each other without every word parsed for its violation of someone’s most delicate feelings.
And if someone overstepped their bounds, a strong woman would rip him a new one for doing so. Lesson learned, and everyone moved on with their day, off to the courtroom to fight for their clients. This wasn’t sexual harassment; this was how grown-ups dealt with each other, without crying about every comment or balling up in the corner suffering faux PTSD and demanding an emotional-support pig.
After speaking to my daughter, now 22, I’d say the younger generation’s tolerance for sexual harassment is zero. (My generation took it as the price of doing business.) But she worried me recently by, all too quickly, equating the allegations of sexual harassment against people like Kevin Spacey, Louis C.K., and Harvey Weinstein with rape.
They are not the same, nor should they be considered equal. Every crime has a name and a degree. Those degrees are established for a purpose — to mete out punishment fairly and to recognize distinctions in damages. Petit larceny is not the same as grand larceny.
While Messina hardly speaks for her generation, she’s entitled to her opinion, as is her 22-year-old daughter. But conflating the vagaries of sexual harassment with the conduct of Spacey, Louis and Harvey gives away the game. To the extent we know what they did, their conduct either meets the elements of a crime or not.
Messina’s point, that every act of sexual harassment doesn’t equate with rape, despite the fact that her daughter’s generation no longer gives a damn about definitions, doesn’t overcome the fact that Messina has done the same thing, except on the lower rung of sexual harassment. Every women is a victim, and every man is guilty, but only of sexual harassment, not rape?
I’m heartened that the issue of sexual harassment is finally garnering the attention it deserves. This onslaught of revelations about Hollywood and the entertainment industry might actually bring lasting change as women find courage in numbers to banish the “casting couch” to the junk heap. But let’s not make this an excuse to relegate the presumption of innocence and our own freedom of choice to the junk heap as well.
This isn’t an homage to the presumption of innocence at all, and no criminal defense lawyer with an iota of integrity would say this. This is just the presumption of guilt, but with a plea to a lesser offense based on the argument that the perp can be rehabilitated. Messina gave it her best try to make sense of the irrational, and failed miserably.
Too bad for all the male lawyers (and judges?) who engaged in sexual harassment against her during her legal career, for which she suffered as a “cost of doing business.” You’re all guilty, but at least Messina isn’t demanding you get life plus cancer for your crimes. That must be the criminal defense lawyer in her being so kind to the guilty men.
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A female colleague at work commented on my pants a few months ago. I think there was some innuendo involved. “Red pants, eh?…”, accompanied by raised eyebrows and that tone of voice. They were burgundy, not really red. She was harassing me, right? It hasn’t happened again, but I guess I should keep an ear out to see if this is a pattern.
Hard to say for sure without pics.
https://goo.gl/qKFuQW
That explains it.
Messina “doesn’t know a woman who hasn’t been sexually harassed.” If you include “slights, comments about clothes and body types, questions about how we could have made it so far in this or that business based on our brains alone” and if you only require one incident to qualify, then this is a pretty meaningless claim.
That said: Unlike most authors of her ilk, she does not expand that statement to say all men are harassers. Neither is that claim implied. I don’t think it’s fair to stick her in the “all men are guilty” pot; it should be reserved for the pool of folks who actually say as much.
Fair enough. All men who have never said anything to a woman not his wife or mother, or have never said words that could be considered a “slights, comments about clothes and body types, questions about how we could have made it so far in this or that business based on our brains alone” by any woman, are not guilty.
Upon reflection, I realize the error of my reply in including wives.
Messina and her songwriting partner addressed this theme long before it became fashionable.
A woman judge I interned with in law school had her own harassment story. It seems she was the first woman summer associate with a large downtown law firm. She heard stories from the staff about a certain senior partner who had harassed many of them, but thought it was just gossip.
One day while she was working at her desk, the senior partner came up behind her, reached around and cupped her breasts. Being a tough, no-nonsense woman, she simply took one of his hands and slammed it against the desk as hard as she could. He did not try to harass her again and the incident was never mentioned.
Of course, she didn’t get an offer from that firm, but felt that was for the best as she simply would not put up with that kind of crap.
I thought the resolution was fair and equitable, but I guess women today aren’t that assertive.
They want the offer first, and the victim points later.
Things were so much simpler then. Of course, a Texas jury would have been much more forgiving of a boyfriend or husband unleashing a good old Texas ass kicking on the perpetrator back then. 🙂