Matt Damon, among other men, is concerned that we are treating all acts of sexual misconduct the same. “I do believe there’s a spectrum of behavior,” he explained to Rolling Stone, in an interview that drew considerable attention. For him, that spectrum extends from “rape and child molestation,” which merits prison, to “other stuff” that’s merely “shameful and gross.”
He’s quite sure that Louis C.K.’s behavior, which includes masturbating in front of female colleagues, falls on the “shameful and gross” end of the spectrum. Damon asks us to consider that maybe Louis C.K. has suffered enough already.
And as for Al Franken? Well, “putting his hands on that woman’s flak jacket and mugging for the camera, going like that, you know, that is just like a terrible joke.” Although Damon says these actions were wrong, he also pleads that they “don’t belong in the same category” as Weinstein’s.
Damon is right that sexual misconduct falls on a continuum, and right that we need to differentiate among different allegations. But there are some pretty important demarcations on the spectrum between “prison” and “gross” — or “prison” and “bad joke.”
And it’s safe to say that “groping,” under the law, is considered much more than a joke.
Some of the confusion we’re hearing in discussion of the recent predatory offenses is understandable, because the law is complicated: Sexual misconduct is regulated by both civil and criminal laws, and the two don’t always match up exactly. And in every case, much depends on the specific circumstances, and on the identities of the perpetrator and victim.
That’s true of groping, as of other sexual offenses. Merriam-Webster defines the verb “to grope” as “to feel about blindly or uncertainly in search.” But as an intransitive verb, “grope” means to “feel up,” as in what boss might do to his female subordinate. Culturally, the word “grope” connotes unwelcome sexual touching.
Should groping a woman land you in prison or just make you feel ashamed? Probably something in between.
The line between sexual assault and battery
No state classifies “groping” as either rape or sexual assault, but that doesn’t mean it’s not a crime. Most state criminal codes also prohibit both sexual and nonsexual “battery” — an offense that involves unwanted touching of a person’s body and that reflects our deeply held sense that people have a right to be left alone. This conduct is usually a misdemeanor, especially for a first offense.
Now, obviously, not all unwanted bodily touching is a criminal act (or we would have been forced to shut down most public transportation a long time ago). Battery is typically defined to include intentional touching that is “harmful or offensive.” Cutting or punching someone qualifies as harmful; spitting in someone’s face would count as offensive. And while the perpetrator must intend the touching, he need not intend that it cause harm or offense in order to commit a crime. It simply must qualify for that description in the eyes of a “reasonable person.”
States also typically have a separate offense called “sexual battery” reserved for intentional touching of a person’s private parts, especially if done for the purpose of the perpetrator’s sexual gratification, or to abuse or degrade the victim.
But what if some hilarious person — say, a US senator — grabs a woman’s breasts? (There’s some dispute about whether Sen. Franken actually grabbed the breasts of the radio host Leeann Tweeden or just made it look like that for the now-infamous photo.) Is that battery? 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 or another person. But many other state laws sweep more broadly and specifically include touching of the breasts and buttocks.
Even where the sexual battery law does not apply, the regular battery law might because an ordinary person would almost certainly find the breast-grab offensive. (Again, if the groper is following the president’s grab-’em-by-the-pussy playbook, there is no question that the sexual battery laws apply.)
Criminal law, however, is just one of the ways in which groping can be deemed wrongful. Battery, for one thing, is also a tort, a civil cause of action that allows a person to sue another person for money damages. So the victim of a breast (or other body-part) groping might be able to get some measure of justice that way. Think Taylor Swift, who successfully obtained a battery verdict against a radio host who reached up her skirt and grabbed her ass during a photo shoot. She was awarded the $1 she sought, which she said was a symbol for victims who could not speak out.
Groping and workplace sexual harassment
But crucially, given the national conversation about sexual harassment by powerful bosses, groping in almost all cases will meet the definition of unlawful sexual harassment.
Sexual harassment in the workplace is a form of intentional discrimination that can trigger action under state or federal anti-discrimination laws. Groping falls on a long list of behaviors that can create a hostile working environment.
Actions that create such an environment must be unwelcome, severe, or pervasive, and committed because of the victim’s sex. And they must create an environment that a reasonable person would find hostile, offensive, or abusive.
Groping outside of a consensual sexual interaction is almost always unwelcome, so we can check that box. The “because of sex” requirement will often be met either because heterosexual men grope people to whom they are attracted (who happen to be women). And appellate courts routinely classify physical harassment as severe, which means that it shouldn’t have to happen regularly in order to be actionable in court. In contrast, a boss might be able to get away with a stray sexist comment or two.
That said, many plaintiffs will find that courts dismiss their cases even though what they have alleged seems to meet the legal definition of a hostile environment. But while you might not win the case, it would not be because the discrimination law relegates groping to a semi-benign category of being merely “shameful and gross.” A court might just not be convinced that the groping was sufficient to transform the environment into a hostile one—at least not without repetition or other forms of misconduct alongside it. (I believe — as do law professors Sandra Sperino and Suja Thomas, who recently discussed this issue in the New York Times — that this represents a misreading of the law.)
Employers have a responsibility to act against groping. Gropers may be prosecuted for battery (although there is no guarantee), but they can’t be held individually liable for workplace discrimination. Only employers can. They thus have an incentive — dramatically heightened by the current feeling of collective outrage about the widespread ignoring of, and implicit condoning of sexual misconduct — to penalize the harassers. Working within the legal standard, employers have almost unfettered discretion to decide whether and what punishment might be appropriate.
What seems like appropriate punishment to some may seem like vast over- or under-punishment to others. The controversy over the treatment of New York Times reporter Glenn Thrush — suspended but not fired for allegations of groping and related misconduct — provides a current example of such differences of opinion.
Standard HR dogma counsels a system of escalating and proportional punishments for violation of employment policies. But in this particular cultural moment, employers face pressures much more powerful than the fear of civil liability. Whether these actions represent a much-needed correction of a regime that has systematically under-enforced harassment laws and under-punished harassers, or whether in some cases companies are over-punishing, is one of the many topics our culture and institutions are currently working through.
So where does that leave Franken and Louis C.K.? Franken’s conduct, if it was at it appeared in the photo, was surely unwelcome — the woman whose breasts he allegedly grabbed was asleep. But it wasn’t in the workplace, and she was not protected by anti-discrimination laws. It was probably battery, however. We leave that call to prosecutors in the relevant jurisdiction (and here statutes of limitation have lapsed).
Louis C.K.’s behavior occurred (at least sometimes) in the workplace and might have been covered by anti-discrimination laws. That could depend on whether the women he forced to watch him masturbate were employees protected by anti-discrimination laws, or unprotected individuals including independent contractors or third parties. (Masturbating in front of people is not battery, which requires touching another person, but many states also have public nuisance and other laws that could be used, but only if the conduct had occurred in a public place.)
Perhaps the more important question raised by Damon’s semi-defense of Louis C.K. and Al Franken is whether these behaviors violate our collective social norms, rather than just whether they violate a particular civil or criminal law. It is true that, like legal penalties, social outrage should be proportional. While it can be tempting to throw up our hands and demand exile of all perpetrators of sexual misconduct, that wouldn’t be fair or reasonable.
Nonetheless, drawing a simplistic line in the sand between “prison” and “gross” really is not going to cut it. Groping is more than a joke — and quite often it’s a crime.
Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law. Her most recent book is Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace. She is a regular columnist for Justia’s Verdict.
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