Has the law gone too far?
by Alan M. Dershowitz
Professor of Law, Harvard University,
Author of The Abuse Excuse and Sexual McCarthyism
The latest backdoor assault on freedom of speech by some radical feminists has taken the form of an expanded definition of sexual harassment. At is core, sexual harassment prohibits a person in an hierarchically superior position (for example, a boss or teacher) from exploiting that position to coerce sexual favors from an unwilling subordinate (for example, an employee or student). Limited to that core, rules against sexual harassment make good sense and should be vigorously enforced.
Free speech threatened
But now efforts are under way to broaden the definition to include constitutionally protected speech. For example, one proposed formulation of the new sexual harassment would cover verbal conduct of a sexual nature which has the purpose or effect of creating an intimidating, hostile, or offensive environment. This so-called hostile-environment addendum to sexual harassment has virtually nothing to do with the core offense. It is an entirely different concept and it threatens freedom of expression as well as the equal protection of the law.
Lest these concerns seem fanciful, let me relate to you a recent experience at Harvard Law School, where I teach. A group of feminists in my criminal-law class threatened hostile-environment charges against me because of the way in which I teach the law of rape. They found the atmosphere of my classroom hostile because I spent two days discussing false reports of rape and because I made arguments in favor of disclosing the names of complaining witnesses in rape cases. Despite the fact that the vast majority of students wanted to hear all sides off the important issues surrounding the law of rape, a small minority tried to use the law of sexual harassment as a tool of censorship.
Although the students in my class eventually decided against bringing the charges, the fact that it is even thinkable at a major university that controversial teaching techniques might constitute hostile-environment sexual harassment demonstrates the dangers of this expandable concept.
A singular protection
The hostile-environment angle also gives special power to women that is not available to others who may be the subjects of discrimination. Consider this scenario: A factory owned by bigots has reluctantly added several women, blacks, Latinos and Jews to what was previously an all-male, all-white, all-Christian work force. In a deliberate effort to encourage these newcomers to quit, the owners place offensive signs throughout the factory. These signs are sexist, racist and anti-Semitic. Under the hostile-environment subcategory of sexual harassment, only the offended women would have the right to sue, because they have been sexually harassed, while the others have just been deliberately offended.
That is simply not fair. If the law seeks to prohibit hostile environments in general, it ought to do so as a part of the across-the-board regulation, and not as a subcategory of sexual harassment.
An accusation of sexual harassment is an extremely serious charge that should be reserved only for cases at the core. By extending the core concept to include verbal conduct that has nothing to do with sexual favors, radical feminists are trivializing real sexual harassment and creating an unnecessary conflict between protecting vulnerable women from unwanted sex and the important protections of our Constitution.