Women's Issues

The Sexual Harassment Dilemma

We cannot assume that because these men committed crimes, their lives are now worthless and any past achievements they've made -- or future ones they've yet to realize -- should be relegated to the trash bin.

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Kevin Spacey (Photo by Tim P. Whitby/Getty Images for Sony Pictures)

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.

Sexual harassment has existed since time immemorial. As women slowly made their way up the ranks toward greater equality with men, the frequency and depth of it became more well-known and tolerance of it diminished.  But harassment still rears its ugly head on a daily basis in the U.S. and around the world.  It’s particularly endemic in certain professions like the entertainment industry and fashion modeling, but I wager there’s no business, including law, that escapes its vicissitudes.

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.  Any type of on-the-job harassment (if revealed) will be actionable — not necessarily in court, but in the workplace itself.  Human Resource departments devote yearly (or more frequent) training on what is and is not appropriate on the job.

This does not diminish the fact, however, that it’s still tough for any victim of sexual harassment to muster the courage to report it.  There’s always a risk of not being believed or even of being fired or not recommended for the next job.

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.  Drug possession of a quarter ounce of pot differs from possession of a kilo, and beating someone up in anger (misdemeanor assault) is different than hurting someone to take his property (robbery).  Different crimes (albeit similar) are punished differently and analyzed distinctly by a judge and jury.  Many of my cases deal with convincing a jury to see the difference in what my client was indicted for as opposed to what actually occurred.  While the person I represent generally did something criminal, it’s often less than the criminal act for which he was charged.  Appreciating distinctions is what gives the law its meaning.  One size does not fit all.  So it should be with sexual harassment versus rape.

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Rape laws have tightened up throughout our country.  As an example, New York State used to have a statute of limitations for when a rape had to be reported in order for it to be actionable.  Recently, that changed.  Now, crimes such as Rape in the First Degree have no statute of limitations.  A victim could wait until 20 years after the crime to tell police, although generally the longer the wait, the less strong the evidence. (Statutes of limitations still apply for lesser sexual offenses such as forcible touching. This is why it may be difficult for the New York County District Attorney’s Office to bring charges against Harvey Weinstein no matter how interested it may now be.)

But I do want to say something on behalf of the alleged offenders, no matter how heretical it seems in a justifiably zero-tolerance world.

People who commit crime, no matter how heinous the offense — whether sexual assault, robbery, or murder — should not be painted with the brush of evil just because of their crime.  People are complicated and so are their acts.  Even the worst criminal I’ve represented had something worth salvaging.  Maybe one took care of his mother, or loved his child, or worked hard at his job or, as in the recent cases, produced great art.   In short, just because a person committed a crime doesn’t mean he’s never made a contribution or still could in the future.

Louis C.K. apologized for having asked women to (among other things) look at his penis.  He acknowledged that the very question (whether they wanted to) “put them in a predicament” because of the power he wielded.  But does that mean he should no longer be considered a talented comic?

Kevin Spacey may have acted criminally in relation to the young men he’s dealt with.  He’s alleged to have used his power, position, and influence to force himself on others.  But, in spite of these allegations, he is still a damn good actor.

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I, for one, would have preferred Netflix to have permitted Kevin Spacey to finish the season of “House of Cards.”  The network could have had him escorted 24/7 by security guards to safeguard the staff and crew, but I would have liked to have had a choice to see (or not see) the show’s final season rather than having Netflix make that call for me.

I’ve represented people accused of crimes for decades, yet I never assume that because they’ve committed crimes, their lives are now worthless and any past achievements they’ve made — or future ones they’ve yet to realize — should be relegated to the trash bin.

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.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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