Defining terms. What exactly is “sexual misconduct” and who decides?

By Robin . . . Every day brings new charges, it seems, of sexual misconduct on the part of a man in a prominent position. No area is safe. Among the accused are those in the entertainment and media fields, political leaders, sports figures, and even a past president or two.

Like a tornado spinning off multiple, smaller tornados, every accusation results in dozens of stories and articles giving as many details as possible as to who, when, where, and how many, and then, inevitably, to new accusations. Little to nothing has been said that was not designed to ramp up the feeding frenzy to the next level.

Finally, ever so little, the tide is beginning to turn in that regard. Two pieces have been posted that remind us that not everyone accused is guilty, that even for those who are, there are different degrees of guilt, and that, for innocent and guilty alike, the erosion of constitutional protections and rights cannot be allowed without putting us all at risk.

Ruth Ann Daily, in “Overextending the definition of sexual assault is also harmful,” writes:

We are going to need some new words. As allegations of sexual misconduct continue to flood our mass media, the term “sexual misconduct” won’t suffice. Neither will “sexual assault” or “harassment.”

“Misconduct” is a handy catchall when we are not sure which actions under discussion are criminal and which are merely disgusting, but the legal terms of assault and harassment are surprisingly and unhelpfully broad.

Since the incidents recently revealed range from lewd remarks to forcible kissing to self-exposure to groping to rape, it’s clear we need new terminology and some careful redefinitions.

Why? Because degree of harm matters here, just as it does elsewhere.

Cathartic though it may be to share a #MeToo story, there’s a risk that labeling lesser offenses as “sexual assault” will give too many people a reason to roll their eyes and tune out those that are really serious.

The 93-year-old, wheelchair-bound George H.W. Bush brushing a woman’s posterior with his arm during a photo session and making a suggestive pun by way of apology? That may be socially inept, and the woman offended, but calling it “sexual assault” denigrates the more serious sufferings of others.

Rock star Gene Simmons greeting new female acquaintances with references to his (still-clothed) genitalia as “the fun machine”? It is gross, rude and stupid, but is it a crime?…

And she concludes:

If, in our rush to address a true problem, we are careless with definitions…we risk losing some good things: the consoling pat of a hand on one’s forearm, the affirming clap of a hand on one’s shoulder, words of affirmation or admiration that aren’t sexual, just human.

We will lose these things because doing and saying nothing will be the only safe course.

Punishment is needed for newly revealed crimes, but the punishment can’t fit the crime unless the crime is clearly defined. Far from the off-the-cuff world of Twitter and Facebook, we have some serious thinking to do.

And almost as though she were continuing the same thought, over at With Justice for All,  Shelly Stow in “It’s time to stop and think about accusations from years gone by” says:

Something is happening in this nation that should cause serious concern to every American.

It is being praised by many as being an incredible break-through, something whose time has finally come; and it bestows on those who are speaking out the status of brave heroes – or heroines – for opening the floodgates.

And those who have serious reservations aren’t saying much of anything. Why not?

They know all too well the fate that awaits them if they do, the sneers, the looks, the accusations. Rape apologist. Aiding and abetting the enemy. Victim-blamer.

And there’s something else. Deep in the heart of everyone who is thinking, “Wait a minute; slow down; this has the potential to destroy so many innocent,” there is the knowledge that some of it is true. People in power have, without doubt, used that power to extract sexual favors from those with less power. It is an abhorrent and vile truth.

And then she asks a series of questions that beg to be answered – or at least discussed.

But does that justify jumping on every bandwagon that leaves the starting gate and assuming the worst about every person, celebrity or not, about whom an accusation is made?

So what should we do? Should we just close our eyes and allow real abuse to continue? No. But should we slow down and have a conversation about how easy it would be, how easy it is, to destroy someone who is innocent? Should we recognize that this is a bandwagon that is too easy to jump on? Should we at least talk about the part that is played by the emergence of the “social justice warrior” movement and the new feminism, a feminism that appears to seek not fairness and equality but domination and even revenge?

Should we recognize that, with this issue, a highly cherished constitutional protection is disappearing right before our eyes? The burden of proof has always been on the accuser, on the state, to prove guilt. That is shifting and morphing every day, with every accusation. Each accused person is expected to prove he is innocent or else be judged guilty. That has terrifying implications, not only for those accused of crimes of a sexual nature but also for those accused of any crime.

And in attempting to prove innocence, is anyone talking about the sheer impossibility of proving a negative, especially in response to something alleged to have occurred decades ago? Or for those not so innocent, the impossibility of mounting a legal defense when the accusations and any possible witnesses are from a lifetime ago?

In answering her own questions, she says, “We must. Otherwise, who is safe? Not your father, your brother, your husband,  your son; not your friend. Not you.”

And I agree.







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Robin Vander Wall

As vice chair of NARSOL, Robin is the managing editor of the Digest, director of development, and provides assistance to the webmaster in keeping our websites running smoothly. He also serves as founder and president of Vivante Espero, NARSOL's 501(c)(3) foundation and legal fund.

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    • #27688 Reply
      Tod siegel

      I find it so amazing, especially with these holier than thou, evangelical Christians, are now coming to the defense of Roy Moore basically saying that in the Bible, it is OK for an adult to have sex with a teenage girl. They are going as far as saying that is how Jesus was created, God impregnating a young teen girl. Then you have the other evangelical anti-gay Christians getting caught in office with another man. I don’t know how, but changing the definitions, backing off on the extreme treatment of anyone accused or convicted of a sexual crime has to happen. We have a man that is supposed to be our president, who openly admitted to assaulting girls while in a position of trust, young teen girls, yet those Who ignorantly voted for this man, just put an offender in office has the most powerful man in the world. If there are not double standards before, there is now. Do you think some of these Republicans, and our president should have a stamp on their passport?

      • #27700 Reply

        Bill Clinton Enough said!

      • #27845 Reply

        “We have a man that is supposed to be our president, who openly admitted to assaulting girls while in a position of trust,”

        Tod, citation please…? Trump never said anything about assaulting anyone. He made a typical male sexual joke about “grab ’em by the p*ssy” but since you seem to be LIBERAL and liberals like to MAKE SH1T up, I cannot find a rhyme of reason to be on your side in your fight against our never ending punishment.
        If you’re offended by jestful words from Donald Trump, then please gather together with your fellow Social Justice Warriors and Antifa liberal buddies and go prostest EVERY. COMEDIAN. EVER. that has spoken that way about women in their stand up comedy routines. Surely they MUST BE CONFESSING TO AN ACTUAL CRIME.

        *drops the mic and walks away*

    • #27691 Reply
      Jonny everyman

      The Moore situation further highlights the issue with the registry. Once a person is on the registry they are treated like scum and labeled a “sex offender” otherwise they have a fighting chance. Even Kevin Spacey who has faced a lot of criticism will never get the vitrol your local registrant will.

    • #27705 Reply
      Tim Lawver

      Ultimately, I was forced to ask, who exactly benefited from making felons out of those whom are not?

      This question, when answered honestly lays bare the truth to formation of a “more perfect union.”

    • #27740 Reply

      Tod you are in certain aspects about this “Hoilier than thou” thing. I’ll keep my mustard seed faith. God to have faith in something thesed days. I don’t like sexual harassment but than we talk about the lesser of the two evils. Actually their is not a just man upon the face of the earth that doeth good and sinneth not. That mean’s woman also.
      Me and this lady had a discussion earlier this summer about Eve eating the fruit. Every since women have wanted to be the domiant force. Don’t get me wrong I like women and yes their cool and can be good companions at times but its all about relationships.
      Now this sexual harassment thing or sexually offending is a bit to much. Do women want some type of revenge, tarnish one’s name, or speak out like the women’s lib movement which I wasn’t to impressed with Helen Redding. Sure we all have rights but women are just as bad as men. You can find that out in the bible. Samson and Deliah, David & Basheba, and those Jebezel women that ploted and planed to overthrow their man.
      Why don’t some of these women just learn to bury the hatchet and forgive but since sex is the more spicy topic of today with the sex offenders, and what’s an offender… is it some type of physical or just someone saying kiss my grits as flow would say.
      So is sexual misconduct teetering on the same line as sexual harrassment?

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