What is the Difference?
After allegations of sexual harassment and assault came out against movie mogul Harvey Weinstein, the #MeToo movement went viral, sparking new levels of social awareness regarding power and sex. High profile men in the political, business and entertainment realms have been accused of “sexual misconduct” — but what does that mean, exactly?
With the rise of allegations, there has also been increasing backlash against the #MeToo movement, mostly because people do not understand what exactly these men are being accused of: is it a criminal act, a civil violation, or just abhorrent behavior? Some cases may involve all three while others, like the Aziz Ansari story, fall within the realm of gross behavior.
Media outlets commonly used the term “sexual misconduct” when reporting accusations made against these high profiled men and women. But sexual misconduct is not a legal term. It does not actually refer to a specific criminal behavior (e.g. sexual assault) or civil violation (e.g. sexual harassment). Rather, it is a broad term encompassing anything from dating a subordinate to pressuring him or her for sex in exchange for a benefit, like career advancement.
Although sexual harassment is not a federal crime, it is illegal in every state. As a form of gender discrimination forbidden by the Civil Rights Act of 1964, sexual harassment is a civil violation. Legally, sexual harassment is forbidden in professional settings; although, many states have also criminalized certain threatening behavior made outside of the professional setting.
There are two forms of illegal sexual harassment (the behavior must be unwelcome and against the law) in a professional setting:
1. Quid Pro Quo Harassment
A person in power demands that the subordinate tolerate harassment, such as sexual requests, groping, or unwanted sexual advances. If the subordinate does not, he or she could risk losing his or her job, or the opportunity for a raise, promotion or other job benefits. This only has to happen once for the conduct to be illegal.
2. Severe or Pervasive Behavior That Creates a Hostile Work Environment
What is “severe or pervasive” is subjective and open to interpretation. It is dependent on facts and circumstances and defined on a case-by-case basis. Judges and jurors would consider:
- Frequency of the behavior
- Number of participants
- the behavior was physical and/or verbal
- the accused was in a supervisory position
- a reasonable person would view the behavior as offensive
For example, at least nine women — lobbyist, newspaper publisher, and other female lawmakers — accused Representative Don Shooter of Arizona of sexual harassment, the first of whom was Representative Michelle Ugenti-Rita. She accused Shooter propositioned her for sex and repeatedly commenting on her breasts. After conducting an investigation, in a 56-3 vote the Arizona Legislature expelled Shooter for “engag[ing] in repeated pervasive conduct [that] created a hostile work environment for his colleagues and those with business before the legislature.”
However, in civil litigation, federal judges have created a high bar for what the courts should consider as “severe and pervasive” behavior that creates a hostile work environment.
State and federal law criminalize all forms of sexual assault; although what conduct or behavior is considered sexual assault varies by state. It is most often associated with rape, but could also describe violent or threatening sex crimes, including sodomy and unwanted groping or fondling. Under federal law, sexual assault encompasses any physical conduct or behavior that occurs without the recipient’s explicit consent.
State sexual assault laws are more complex. Some states narrowly define sexual assault, criminalizing contact with the anus or genitals of another person. Other states offer broad definitions, specifically including breasts and buttocks. Some states criminalize exposing one’s genitals to an unwilling audience.
Contact The Law Office of Howard A. Snader, LLC
Call our knowledgeable attorneys for more information regarding sexual misconduct, harassment, and assault at 602-7376-3195.