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207 E 5th Avenue, Suite 254, Eugene, Oregon 97402 | P: 458-221-2671 | F: 833-352-3615 | info@erisresolution.com

Sexual Harassment and the Law

April 16, 2019

 

Let's dive into Strategy 1: Law. 

 

Whether or not you are asking in the back of your mind, “Do I have a legal case?” it will help you to have an understanding of what the law can do for you – and what it can’t – in order to end harassment in your life for good. Because I don’t know your story, and I may not work in your state, this is not legal advice. This is a very, very rough description of how the law works federally and in many states and what it protects. Protections around discrimination are different from state to state and country to country, so it is very important to talk to a local attorney about how the law applies to your situation before you do anything that might affect a legal claim. I want what I’m telling you to help you and not hurt you, so please take this seriously.

 

If you don’t know a local attorney, I will find one for you. That is how seriously I take this. Just send me an email at Meredith@ErisResolution.com, include a very brief description of what is going on with you, and let me know where you live. If I can’t help you, I will help you find someone who can.

 

Criminal Versus Civil

The law is broken up into two parts: criminal and civil. Criminal law deals with people’s freedom. If you break a criminal law, you could go to jail or have a probation officer follow you around. Civil law deals almost exclusively with money. In very rare cases, civil law can provide something other than money to repair the wrong that happened, but for purposes of this rough understanding of the law, you should assume civil law only deals with money.

 

For example, imagine two neighbors have a dispute because the one neighbor drove over the other’s lawn and damaged the landscaping. On the criminal side, the police might investigate whether the offending neighbor intentionally trespassed or was driving while intoxicated (violations of criminal law). If the police and the district attorney’s office decided that the offending neighbor broke a criminal law, the DA would then decide whether to go to court to try to restrict the offending neighbor’s freedom (send her to jail) as punishment or put the offending neighbor in some kind of program to rehabilitate her and help her contribute positively to society. The purpose of that system is to protect the community from the offender and (hopefully sometimes) to rehabilitate the offender to society. It does not focus on helping the hurt person.

 

On the civil side, the hurt neighbor could decide whether to ask for some kind of reparation for the harm to the lawn. If the offending neighbor wouldn’t agree to a reparation, the hurt neighbor could file a lawsuit. A judge and jury might order the offending neighbor to pay the estimated cost of repairing the landscaping. A judge and jury would usually not be allowed to order the offending neighbor to physically repair the landscaping herself, though. One of the reasons is that it is way easier to enforce the transfer of money than to make sure the neighbor does a good job repairing the landscape. No one wants the judge to go stand over the neighbor and watch her plant shrubs to make sure it gets done. We want the hurt neighbor to be able to decide what landscaping to get, but the offending neighbor to still be responsible to pay for it. 

 

I am going to come back to this analogy of a neighbor driving over another neighbor’s lawn – not with any intent of being disrespectful by comparing it to how it can feel to be harassed or assaulted. But, in terms of the law, I think comparing the two can be helpful, and it is often less triggering to talk about a damaged lawn than harassment or assault.

 

But, now I am going to apply this analogy to the ways that harassment and assault cases can play out in the criminal and civil law, so be conscious of yourself and where you are when you read this. Read in a safe space, where you feel comfortable that you can set this aside and do something comforting if you start feeling overwhelmed. The information will be here when you get back. If you force yourself to learn this when you are not ready to receive it, it will not be helpful to you.

 

Also, feel free at any time to skip this post and go right to the next. If you know you are not planning to make a legal claim or you have an attorney to give you legal advice, then you do not need to put yourself through this, as it may just be more boring than triggering. For those of you still around, I’m here for ya.

 

The law only gets involved with a very, very narrow selection of harms – especially for women. The law changes very slowly, and there are still not enough women in government to create strong representation of women’s perspectives. We have a situation where the law was written by men. So, as with health insurance paying for Viagra but not birth control, the law is usually very specific about how it addresses traditionally male concerns, but it doesn’t do a lot for women. We also have a situation where we have a culture traditionally ashamed of anything to do with sex. So, even though men experience harassment, too, they may feel even more cultural pressure than women to pretend it doesn’t exist.

 

Below are specifics about how the law addresses harassment scenarios at home, work, or in the community. I do not address how the law handles cyber situations because it provides little to no protection in those situations. In many cyber instances, it actually provides more protection for the harasser than the harassed, but as with everything, there are always other strategies you can use to deal with harassment. You are not stuck. Again, this is not legal advice because I don’t know how this information applies to you specifically, but instead is meant to be practical information to be aware of what exists in the law.

 

 

Police

My experience with criminal law is from working in our Oregon state court and working with the police and district attorney’s office to coordinate with the criminal side of civil cases. So, take it for what it is worth in terms of how it applies to your local system.

 

No one is allowed to touch your body without your permission. Sometimes, if someone touches your body without your permission, it is a crime. Usually, but not always, if the harassment you experience does not involve harm to your body or your property, it would not fall under criminal law. Again, it is important to talk to an attorney or the police about how the law applies to your particular experience. 


In criminal law, the presumption is that the perpetrator of the crime is innocent, unless the government proves he is guilty (say it with me, Law & Order fans) “beyond a reasonable doubt.” If there is any reasonable doubt about the perpetrator’s innocence, the jury can’t convict him.

 

This is meant to be a high standard to keep the government from putting innocent people in prison. The problem is that it is usually very, very difficult to prove crimes against women beyond a reasonable doubt. Women often experience crimes in our homes or our workplaces when alone with perpetrators who are people we trust. No one sees what we experience, and our perpetrators lie if someone asks them what happened. If there is not a third-party witness, clear forensic evidence, or video or written evidence of some kind of confession, juries often feel they can find reasonable doubt as to the guilt of the defendant. A major pitfall I see in these situations is that people think recording their perpetrator confessing on audio will help – these recordings are sometimes a crime and usually not admissible in court, so be very careful if you are thinking about doing that.

 

The law was written by men in a culture that shames sexuality. It is only within the last 50 years that we have started to expect the police to arrest people for crimes committed between intimate partners. The standards we have now, especially on the criminal side, only allow the police to intervene when something has gone very, very wrong. They put the burden on women who are being harassed to clearly say no, fight back, and defend ourselves. If this is not a realistic solution in your case, Strategy 2 (Chapter 4 of my book) is for you. In order to help with the problem that the criminal law is not set up to keep women safe, police often recommend that women who are being harassed get restraining or stalking orders.

 

Restraining Orders

Sometimes, restraining orders are a good idea. If you have children with someone who is violent, sometimes it is necessary to take out a restraining order to have an emergency custody plan for the children. Other times, a court order can be appropriate if you have no relationship with your harasser. For example, I worked with a client who was a college instructor, and one of her students was threatening her because she did not want to date him. He made explicit physical threats, but also, he sent her super creepy emails all the time. Because she was eligible for a stalking order based on some of his conduct, each one of the emails he sent after the stalking order was in place became a crime, and her stalker actually faced criminal sanctions for them.

 

That situation is the exception, in my experience. In The Gift of Fear, Gavin de Becker recommends women be very careful before we file for stalking or restraining orders, and I have to agree with him. Often court orders can escalate violence because they put someone unstable into a threatening situation, where he feels undermined and ridiculed by society. The judge tells him not to contact someone again, and he suddenly needs to prove he has ownership over the woman he’s not supposed to contact. Unfortunately, women have been kidnapped or killed after filing for restraining orders.

 

A more common problem than escalating physical violence, though, is the problem of wanting to have ongoing contact. For example, I worked with a professional artist who was dating a violent, unstable man. At first, their relationship was exciting, but it soon turned co-dependent and dangerous. He threatened her life and her friends’ property. He physically hurt her and destroyed her belongings. But, because of her own story about him and about herself, she went back to him over and over again. At one point, she wanted to get a restraining order against him, not just to keep him away, but to keep herself from going back to him. But, that’s not how these orders work. A stalking, restraining, or protective order almost always restrains the perpetrator only.

 

What often happens in scenarios like that is the woman gets an order, but she hasn’t let go of the story that draws her back to the perpetrator, and so she goes back to him. She either dismisses the restraining order or gets the man to violate it. Then, he is violent again, and she calls the police, saying that the restraining order is violated. When he goes to court for the violation of the restraining order, his attorney undermines the woman’s credibility – after all, she went back to the perpetrator. She is just using the restraining order as a bargaining tool with the perpetrator, the attorney argues. She does not really believe she is in danger or she wouldn’t have gone back to him.

 

The law assumes everyone acts in his own best interest. I don’t know if I’ve mentioned this enough yet, but it was written by men in a culture that shames people around sex. The worst-case scenario in that situation is that the man commits a horrible crime against the woman, but she has already been shown to be not credible in court, so the government can’t prosecute and the man walks free. Unfortunately, this is not uncommon.

 

When I worked at my local courthouse, just out of law school, I walked the two miles to work and home. My friends would tell me not to walk in the dark and that it was dangerous to be out walking after work. Some of them would wait for me to be done with court to drive me home on a dark night. From everything we saw in court, I knew I was not the one in danger. While I worked there, I saw zero cases of stranger attacks, but almost every day of the week, I saw cases of “Assault – Domestic Violence,” “Strangulation,” and “Interference with a Report.” The stories were almost all the same: a man hit his partner, she reached for her cell phone to call the police, and he slammed her up against the wall with his hands to her throat, throwing the phone across the room. These charges came through the courthouse almost every single day.

 

Men are one of the leading sources of injury and death in women around the world. These are usually the men we work with, live with, and rely on, though – not strangers. This violence is a disease that is part of our communities and needs a cure. The amputation idea of restraining orders and jail isn’t working. Cutting off men from their victims for a little while is not a long-term solution.

 

When the artist I worked with came to me, we worked together on a step-by-step intervention that allowed her to remove herself from the toxic relationship as she was ready. She is now safe and away from that relationship. She is still processing her own thoughts, trauma, and how to plan for her safety, but she is out of immediate danger. We started with just practicing calling the police when she was in danger. If you are not able to get yourself into the mindset that you can call the police to protect yourself without a restraining order, it is unlikely that the restraining order itself will change that. You need to be able to call the police when you are in danger, with or without a restraining order. 

 

In her particular situation, she needed to move to a different city in order to remove herself from her perpetrator’s control. Moving is not always the best option, and I prefer to help people get to a position where they can stay where they are and defend their lives from the harassment, forcing the harasser to move or stop instead. But, if moving is a realistic way to protect yourself from physical danger, there is no shame in it.

 

Once she moved, though, the man still would not leave her alone, and so we sent a cease-and desist letter. A cease-and-desist letter is sometimes an appropriate substitute for a restraining or stalking order. The cease and desist provides written proof that you have told the perpetrator not to contact you, but it does not require the court process of a restraining order. Because it is still a formal letter, it is important that you have committed to not interacting with the perpetrator anymore at the time you send the cease and desist, but if you do end up seeing the perpetrator again, it does not have the same power to undermine your credibility. On average, people return to abusive situations between 8 and 16 times. It is important to have a flexible approach to training yourself to set boundaries around harassment and violence. Calling the police, leaving, and cease and desist letters can all be appropriate steps in that process.

 

A sample copy of a cease and desist letter is included as Appendix I in my book. Visit www.CareerDefense101.com to get your copy. Also, please talk to an attorney in your area before you send this so that you understand the impact that it could have on any legal (criminal or civil) case. I’m happy to talk to you about your situation, see if I can help, and connect you to someone in your area, as well (Meredith@ErisResolution.com).

 

 

Civil Claims

Basically, civil rights law makes it illegal for the government to discriminate based on certain protected characteristics. It also makes it illegal for some employers to discriminate against some employees and sometimes customers. Sex is almost always a protected characteristic, though it gets less protection than race under some legal analyses.

 

I’ll say it again, though, to make sure I was clear. These are the people who aren’t allowed to discriminate: the government, employers (against employees), and sometimes businesses against their customers. Otherwise, it’s a free-for-all, and you may not be protected against discrimination or most forms of harassment. What I’m talking about now is different than what we talk about as a “hate crime” – crimes are still crimes, and if they are motivated by discrimination, there may be stricter punishments for them. What I’m talking about now is discriminatory attitudes and conduct that don’t seriously injure someone’s body or their property. The good news is that this does not mean you are out of luck (as I’ll talk about in future blog posts), but it may mean the law does not protect you. It also may mean that even if the law technically prohibits what you’re experiencing, it doesn’t actually protect you in reality.

 

For example, commonly, there is no civil recourse in intimate partner violence or harassment. The reason for this is that even if the violence is illegal (which it is), your harasser’s liability insurance (if he has it) almost certainly does not cover violence, harassment, or any other intentional harm. If you think about it, this makes some theoretical sense, even though it screws you – we don’t want to have men buying insurance because they plan to beat up their partner. But, in reality, it is just a scheme that helps insurance companies and hurts people who are the most seriously injured.

 

Sometimes, a perpetrator has his own money and assets, and you are able to file a lawsuit to recover against those. This is tricky, because individuals can transfer their assets to trusts or business entities, and that makes it very difficult to actually recover anything. Sometimes, you can garnish wages, but again that can be tricky, and anything you do to chase your perpetrator’s money keeps you tied to him in a way that I won’t support.

 

Unfortunately, the next thing to know is that even if the person harassing you is the government, your employer, or a business owner, you still might not be protected, depending on their behavior and how you respond to it.

 

Generally, in order for the law to protect you against harassment, it has to have been (1) unwanted, (2) offensive to a reasonable person in your situation, and (3) severe or pervasive. You have to have alerted your employer to the harassment or, if you are being harassed by your supervisor, you have to have taken advantage of whatever reporting options are available. If there are no reporting options or your harasser is the owner of the company, you may be relieved of this expectation in some ways. Then, if you report, and your employer does not respond promptly and effectively, you may have a legal claim. If you report and get fired or demoted, or some other significant privilege taken away, you may have a legal claim. If your boss wants you to have sex with him, you say no, and he takes away some privilege of your job, you may have a legal claim.

 

You may be able to tell that the law assumes that the women it is protecting are low-level employees. When it was written, women were barely allowed to work in paying jobs, and so the concept was just to minimize some of the obstacles to women keeping their low-level jobs. As women go further and further up in their profession, even as they become entrepreneurs, this system becomes less and less realistic as a protection against harassment. If you own your company, and you have a competitor, colleague, or even ex-boyfriend harassing, threatening, and demeaning you, who are you supposed to report to? You are the boss. The law expects you, as the top-level player, to have an equal playing ground as the men in your field. That is not always realistic, and so, as with everything you’ve done to get where you are, you will need more strategies and support than your male counterparts. It’s not pretty, but it’s reality.

 

 

Tips for Reporting

If you are in a position where you have someone you can report to, I encourage you to follow up on your report in writing. What I usually see as most successful is reporting to an ally in a superior position in person. So, go to his or her office, sit down, and explain what’s happening. Make it clear that the harassment is unwanted, offensive, and severe or pervasive. If it is not any of those things yet, and you want to address the harassment before it gets worse, just make it clear why you think you are being harassed or experiencing discrimination. Sit with yourself before this meeting, and be clear with yourself about why you think you are being harassed or experiencing discrimination. A lot of times, we “just know” something is discriminatory, even if it is not explicit, but if we really think about why we “just know,” we can come up with a more specific reason than that. When you have the meeting, be open to other interpretations of what is going on. Consider the other interpretations, and if they don’t ring true to you, listen to your own intuition about why. 

 

Then, follow up with your report in writing. I recommend following up with an email, (Appendix II in my book contains a sample). Make sure the email is in your words, but be clear about the harassment you are experiencing and that it needs to stop.

 

Unfortunately, if you quit your job, it makes a legal claim much more difficult to pursue. The law on the civil side, like the law on the criminal side, expects women to fight for themselves, even when that is an unrealistic expectation.

 

If the harassment does not stop, making a legal claim is one way to continue to enforce your boundaries. Like with the example of the two neighbors and the ruined lawn, harassment that rises to the level of a legal claim is a boundary violation. Your physical integrity and emotional integrity are boundaries that no one is allowed to violate. If someone violates them, there are consequences. The law provides consequences for some of those violations, but not all of them. You can still set other consequences, and Chapter 7 talks about that more thoroughly.

 

When you have been in a harassing situation for a while, it can feel natural to expect bad things and even to turn to self-harm. Sometimes, then, when you’re trying to get out of a situation, the legal system can become another form of self-harm. If that idea raises a tickle in your brain or makes you squirm because you think it might be true of you, go to Chapter 5 and consider tools for managing your thinking around your harassment and trauma. None of this means something is wrong with you. It is totally normal stuff that our brains do. It is easy to use the legal system as a new perpetrator, to take your harasser’s place, and I would rather see you succeed and overcome what you’ve been through. I know you can do it. You have support.

 

If you don’t think the law applies to your situation or you don’t want to use the law, don’t worry. You are not out of luck. There are many, many practical and reality-based strategies for ending harassment. The law is only one, limited strategy for defending your career. 

______________________________

This is a selection from Career Defense 101: How to Stop Sexual Harassment Without Quitting Your Job. For a free copy of the book, visit www.CareerDefense101.com. Or you can purchase online via Amazon or Barnes & Noble (paperback $16.95, hardcover $24.95). 

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