What Does 'Sexual Misconduct' Actually Mean?

The almost infinite shades of creepy misbehavior on display are challenging the legal and cultural categories used to describe them.

Lucy Nicholson / Reuters

“Enough is enough,” proclaimed Senator Kirsten Gillibrand at a December 6 press conference. Whatever the details of her colleague Al Franken’s sexual misbehavior, said Gillibrand, who has been aggressively pushing for Congress to tackle its harassment problem, he needed to step down. “I think when we start having to talk about the differences between sexual assault and sexual harassment and unwanted groping, you are having the wrong conversation. You need to draw a line in the sand and say: None of it is OK. None of it is acceptable.”

It most definitely is not. But as the public outrage over sexual misconduct gains force, it is swallowing up an increasingly diverse range of allegations, from the relatively petty (such as those lodged against Franken) to the truly monstrous (such as the claims regarding Harvey Weinstein and Roger Ailes). In between those poles exist almost infinite shades of creepy—which, sadly, will necessitate a great many discussions about how to deal with, and even talk about, the different types of offenses and offenders.

This is, in some ways, uncharted territory. In the past, questions of culpability were largely left to the legal realm: As long as a man didn’t get arrested or lose a lawsuit—and sometimes even if he did—he could get away with an awful lot while suffering little more than a bad-boy reputation. But the current reckoning is different, a rising tide of public shaming driven in part by shifting attitudes and expectations among younger women. Going forward, it’s hard to tell how the new lines will be drawn, much less where.

Women should be respected. Period. But not all offenders are created equal. The pattern of coercive harassment of employees allegedly perpetrated by chat show host Charlie Rose or former Representative John Conyers is not the same as the fumbling, drunken stupidity of which The New York Times’ Glenn Thrush stands accused. Thrush may or may not deserve to lose his current job for having made booze-fueled passes at, and subsequently talked smack about, female colleagues at his previous job. But his alleged offenses pale when compared to, say, ex-ABC pundit Mark Halperin’s alleged practice of groping, rubbing his erections against, and even masturbating in front of junior staffers—and then threatening to kill the careers of those who rebuffed him. (Like many of the men caught in this whirlwind, Halperin disputes at least some of the allegations against him.)

Some of the misbehavior being detailed is flat-out bizarre. Comedian Louis C.K. admitted to being a nonviolent but nevertheless intrusive exhibitionist-masturbator. It remains a public mystery precisely what Garrison Keillor did to get his radio show killed. (Something about touching a woman’s bare back when her shirt fluttered open?) Representative Joe Barton had every right to text naked pics of himself to one of his girlfriends, but threatening to use the Capitol Police to keep her quiet about their relationship was a no-no. As for former Representative Trent Franks, who felt it appropriate to pressure multiple young aides to serve as surrogate mothers for him and his wife: Someone needs to explain that The Handmaid’s Tale is dystopian fiction, not a how-to guide.

Then, of course, there are the many and varied accusations circling President Donald Trump, not to mention his own boasts in this area—none of which he has addressed in a remotely coherent, much less persuasive fashion. (The Access Hollywood tape is empty locker room talk! No, wait, it’s a fake! He has never met these women! Not even the ones he’s been photographed with! Or the one who was on his show!) But that, alas, is a special topic to be saved for another day.

It is precisely because this movement is so powerful that it’s important to avoid (through frustration or disgust, exhaustion or confusion) sweeping every bad act and actor into the same mushy heap. That kind of sloppiness breeds excess and backlash. Right now, even our language is inadequate to the moment. Shoving Weinstein and Ailes under the same umbrella of sexual “misconduct” or “misbehavior” as Franken or Thrush renders such terms all but meaningless. Weinstein terrorized scores of women—psychologically, professionally, and physically—for multiple decades and is currently under investigation for rape. That’s not “misconduct” or “harassment.” It’s an atrocity, possibly wrapped in multiple felonies. Both genders need to find a way to address some of these qualitative distinctions without sounding like anyone is being let off the hook.

This may sound obvious, until, for instance, you wander into an angry Twitter mob of John Conyers supporters demanding to know why the ex-congressman’s sins are seen by many to be worse than Franken’s. Well, for starters, Franken didn’t use tens of thousands of taxpayer dollars to secretly settle an aide’s harassment claim. As for the underlying misconduct, if one believes the accusations, Conyers’s transgressions—committed repeatedly against his own employees in direct abuse of his power over them—were empirically more egregious and revolting. (Asking an aide to touch his junk or else find him another woman who would? Come on.) This isn’t to say that Franken didn’t behave like an entitled pig. But, until the drip, drip, drip of low-level grope-and-slobber stories accumulated, the case for his being pushed from office was not nearly as clear as the one against Conyers.

In the world of Hollywood, meanwhile, Matt Damon took a beating on social media last week for trying to place misbehavior on a “spectrum” of gravity. “There’s a difference between, you know, patting someone on the butt and rape or child molestation, right?” he said to ABC’s Peter Travers. “Both of those behaviors need to be confronted and eradicated without question, but they shouldn’t be conflated, right?” Actress Alyssa Milano and others quickly pushed back with a frustrated tweet that all forms of sexual misconduct “hurt.”

Part of the challenge in getting a handle on these scandals is that a cultural shift has occurred. Until this reckoning, women’s efforts to hold men accountable for bad behavior largely took place in the legal realm, where definitions and procedures tend to be more specific. The law recognizes a number of categories of sexual offenses (with some states getting more granular than others): assault, abuse, battery, rape, statutory rape, and so on. Drilling down on workplace misbehavior, Title VII of the Civil Rights Act makes it unlawful “to harass a person (an applicant or employee) because of that person’s sex. Harassment can include ‘sexual harassment’ or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature” and breaks down into two basic categories: quid pro quo and hostile environment.

Even with all these guidelines and definitions, determining whether sexually offensive behavior is pervasive or severe enough to qualify as prohibited harassment can be tricky. (How many dirty jokes during staff meetings does it take to constitute a hostile environment? What about episodes of leering by one’s supervisor? By a co-worker?) And that’s before wading into questions of evidentiary standards and statutes of limitations and so on. It is a system limited in its ability to cope with many of the permutations of misbehavior, especially in those gray areas that don’t neatly fit into a category, that women too often find themselves confronting.

In any case, what is taking place now is not the rule of law, but of public outrage—the rebirth of shaming. It is a force less particular and less constrained than the legal system: The language is fuzzier, the burden of proof is lower, and the connection between offense and punishment not as clear. (In the media world, Matt Lauer, Bill O’Reilly, and Leon Wieseltier all received more-or-less the same sentence for a wide range of alleged misbehavior.) Complainants need not prove their case beyond a reasonable doubt; they need only to persuade the general public of their basic credibility. The more women who step up and are believed, the easier it becomes for the next woman to step up and be believed. The movement fuels itself. This is a prospect both liberating (for too long, the targets of sexual predators have been disbelieved or dismissed) and unsettling in its potential for abuse. (Two words: Project Veritas.)

At some point the torrent of scandal will wane, if only because the current tempest is unsustainable. But it seems unlikely things will revert to the way they were before the fall of Weinstein—or the election of Trump. Women aren’t merely angry, they are fed up. Younger women in particular evince a growing unwillingness to shake off a man’s bad behavior as “just the way things are.”

There’s scant research on generational differences in outlook regarding sexual misconduct, but a recent NBC/WSJ poll found younger women more likely than their older counterparts to say that they had ever experienced harassment at work. Similarly, a YouGov survey of British women found that younger women were much more likely than those over 55 to disapprove of behavior like wolf-whistling and even winking.

I’ve found a similar dynamic in my reporting. Millennials and younger Gen Xers seem to have a broader definition of what constitutes harassment as well as less hesitation about discussing their experiences. Multiple Gen Xers told me that, when discussing this subject with their moms, the older women expressed not outrage but rather an eye-rolling exasperation at younger gals’ failure to learn early on how to deftly deflect unwanted male attention. Blame it on the messages of gender equality that younger women were reared on; or on all that self-esteem-boosting Millennials received from their parents, teachers, and coaches; or on the gradual fading of the attitude that gals should be grateful simply to be allowed into certain workplaces. (I’m not yet 50, and when I was in school, there were still no female fighter pilots.) Whatever the reasons, the days when women’s dominant concern was fitting in as “one of the boys” are ever-so-slowly giving way to expectations that “the boys” should bloody well learn to adapt—that women are, in fact, entitled to be treated with the same respect as their male counterparts. Weinstein was not wrong when he whined that the sexual mores of the 1970s workplace he came up in were different than those of today. He just made the mistake of thinking that was an excuse.

One question going forward is the degree to which the law will—or even should—catch up with the changing mores. Is it possible for Kirsten Gillibrand’s bright dividing line to be codified for Congress, much less the broader society? Does everything need to be illegal to be unacceptable? But keeping these questions in the court of public opinion and relying on shaming carries its own downsides. The same men who are confused by rapidly developing new norms may opt not to hire or promote women after all, fearing that just having them around is risky. No one wants to go back to the days of Hester Prynne. (Well, most don’t.) And Trump is a glaring example of the limits of trying to shame the shameless. As Representative John Yarmuth noted in arguing that Congress needs a formal mechanism for ousting members who misbehave, instead of relying on them to do the right thing: “Resignation’s not the right issue, because resignation is basically a function of your capacity for shame.”