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Stop describing the allegations against Supreme Court nominee Brett Kavanaugh as “misconduct.” It’s not.
Christine Blasey Ford is accusing Kavanaugh of sexual assault. There is no gray area here.
The New Yorker published the first details of Ford’s allegations against Kavanaugh on Friday, without identifying her by name. The article said Ford had alerted a senator about an incident involving Kavanaugh when they were both in high school.
Ronan Farrow and Jane Mayer, who wrote the article, said Kavanaugh allegedly “held her down, and that he attempted to force himself on her”; when she tried to protest, Kavanaugh “covered her mouth with his hand.”
Kavanaugh has denied the accusation, saying, “I have never done anything like what the accuser describes — to her or to anyone.”
The headline in the New Yorker described it as a “sexual-misconduct allegation,” and so did the flood of news reports that followed, including those published by Reuters, NPR, and the Wall Street Journal.
Misconduct is a generic term that is often used to describe inappropriate professional behavior that may or may not be illegal. Using it to describe Ford’s allegations obscures the fact that she is accusing someone — Supreme Court nominee or otherwise — of a violent crime.
On Sunday, Ford identified herself and discussed the incident publicly for the first time in an interview with the Washington Post. The article described a more detailed version of the alleged incident:
Kavanaugh pinned her to a bed on her back and groped her over her clothes, grinding his body against hers and clumsily attempting to pull off her one-piece bathing suit and the clothing she wore over it. When she tried to scream, she said, he put his hand over her mouth.
In the headline, the Post described the allegation as sexual assault, and that’s what it is. Other media outlets have followed suit, but too many national news organizations (including the Atlantic, CNN, the Hill, and CNBC) are still publishing headlines referring to sexual assault as “misconduct.”
Whether Ford’s allegations are true and whether she has enough evidence to support her claim are still at issue. But this much is clear: Ford is accusing Kavanaugh of committing a violent crime. And it could be a felony under current Maryland law (where the alleged assault took place).
Describing Ford’s allegations as “misconduct” diminishes the harm of sexual assault and the experiences of sexual assault survivors. It also perpetuates the view that violence against women is not a serious problem.
Here is the difference between sexual misconduct, harassment, and assault:
Sexual misconduct
This is probably the most commonly used term in media reports to describe accusations against powerful men. There’s good reason for that: Sexual misconduct is not a legal term (in most states), so it’s usually not referring to specific criminal behavior or even a civil violation, like sexual harassment.
It’s the safest description to use because it does not necessarily mean that someone did something illegal. But “sexual misconduct” is pretty broad — it can cover everything from repeatedly asking a work subordinate out on a date to pressuring them for sex in exchange for career advancement.
In some cases, though, sexual misconduct can be illegal, depending on the state. Take the accusations against former Sen. Al Franken. At least eight women came forward to accuse the Minnesota Democrat of making unwanted sexual advances toward them. Some of the incidents allegedly involved Franken groping women’s buttocks and breasts.
Many media outlets described the behavior merely as misconduct. But in some states, this type of groping is actually a crime. It’s sexual battery, which is a form of sexual assault.
That’s how it’s viewed in Franken’s home state. In Minnesota, groping can lead to a charge of criminal sexual conduct. Touching a person’s breast or buttocks without their consent — even over clothing — is a misdemeanor, punishable by up to a year in jail and a $3,000 fine. Not all of Franken’s alleged advances took place in Minnesota, and none of his accusers have pressed criminal charges against him.
Ford’s accusation against Kavanaugh is far more serious than anything that would fit the description of “misconduct.” It’s also not sexual harassment.
Sexual harassment
Under federal law, sexual harassment is not a crime, but it is illegal in every state. It is a civil violation, a form of gender discrimination prohibited by the Civil Rights Act of 1964.
From a legal viewpoint, sexual harassment is only prohibited in professional settings. Catcalling or verbally harassing someone on the street is not against federal law, though many states have outlawed certain types of threatening behavior.
The high courts have defined two forms of sexual harassment that are illegal at work. In both, the behavior must be unwelcome to be against the law.
The first is called quid pro quo harassment. In these scenarios, a person in a position of power demands that a subordinate tolerate harassment (like groping or sexual requests) to keep his or her job, or to get a salary raise or other job benefits. These are the most obvious cases and the easiest to prove. It only has to happen once to be illegal.
The second form of illegal harassment is more subjective. It’s behavior that is “severe or pervasive” enough to create a hostile work environment for the victim. This is open to interpretation, because there is no definition as to what makes harassment severe or pervasive enough to create a hostile work environment.
Instead, juries and judges are supposed to consider how often the behavior happened, whether it was physical or verbal, whether the perpetrator was a supervisor, whether more than one person participated, and whether a reasonable person would view the behavior as offensive.
Lawsuits describing the second form of harassment are the ones that federal judges are most likely to dismiss.
In the past three decades, federal judges have created a high bar for what the courts consider harassment that is “severe and pervasive” enough to create a hostile work environment, says Sandra Sperino, a law professor at the University of Cincinnati and co-author of the book Unequal: How American Courts Undermine Discrimination Law.
“It’s shocking,” Sperino told Vox in December 2017. “You read about women being groped or rubbed against a lot at work, and judges don’t think that creates a hostile work environment.”
A law that is open to that much interpretation makes it hard for victims to get legal compensation. It helps explain why less than 2 percent of job discrimination lawsuits — a category that includes sexual harassment — make it to a jury and why only about 4 percent end up awarding damages to victims. And many of these cases are also settled out of court.
Sexual assault
All forms of sexual assault are considered criminal behavior under state and federal law. But how exactly sexual assault is defined varies by state.
Sexual assault is most often associated with rape, but it’s actually an umbrella term used to describe a number of violent or threatening sex crimes, from rape to unwanted fondling to groping.
The US Justice Department, which can prosecute these cases, considers sexual assault “any type of sexual contact or behavior that occurs without the explicit consent of the recipient.”
The US Code views unwanted physical touching and penetration to be criminal actions. There are two types that are illegal: an unwanted “sexual act,” and unwanted “sexual contact.” A sexual act is a more serious crime and involves penetrating or touching someone’s genitals without their consent, or forcing someone to touch another person’s genitals. Illegal sexual contact involves touching the intimate parts of a person’s body, with or without clothing.
So under federal law, sexual assault must involve some physical contact. Making sexualized comments, or even exposing oneself, is not considered sexual assault under federal law (though it can be considered sexual harassment if it happens at work).
Where this all gets confusing is on the state level.
”There’s a lot of variation in every state’s legal code on what [sexual assault] is,” said Laura Palumbo, the communications director for the National Sexual Violence Resource Center. “Some states don’t even call it sexual assault.”
In most states, groping is a misdemeanor crime that is considered sexual battery. But which kind of groping is illegal also varies from state to state, according to Joanna Grossman, a law professor at Southern Methodist University.
In a column for Vox, she explained it this way:
States diverge on whether breasts are covered under sexual battery law; in some states, sexual battery only occurs when the perpetrator touches the anus or genitals of another person. But many other state laws sweep more broadly and specifically include touching of the breasts and buttocks.
In states like Minnesota, exposing one’s genitals to an unwilling audience (as comedian Louis C.K. admitted to doing) is considered a crime.
But there’s one common factor in most state laws: Using force to commit a sexual act without someone’s consent definitely fits the definition of sexual assault. Whether it’s violent or egregious enough to be a felony may vary.
In Maryland, where the alleged incident involving Kavanaugh took place, using force to molest someone without their consent is a felony, with a maximum sentence of 10 years in prison.
