Manufacturing Consent

Why is it so difficult to wage a legal campaign against sexual harassment?


As American society reckons with the fallout from the #MeToo campaign to call out sexual harassment in various high-profile workplaces, two questions recur: Why has the practice of sexual harassment endured, and indeed flourished, for so long beyond the first legal efforts to rein it in? And why is there still no widespread public embrace of a legal norm prohibiting sexually harassing behavior?

Or, to put things differently: Why has the law prohibiting this behavior failed to make a greater impact? It was forty years ago that the term “sexual harassment” was introduced in a lawsuit; and more than thirty years ago that the U.S. Supreme Court definitively read Title VII, the statute protecting women from gender discrimination, as prohibiting unwelcome sexual advances at work. In a stunning and much-celebrated 1986 decision, Meritor Savings Bank v. Vinson, a unanimous Burger court declared that sexual harassment at work is a civil rights violation. Meritor acknowledged that women’s experiences at work can be the basis for a federal common law rule forbidding unwelcome advances. The court further found that sexual harassment at work is a condition of employment imposed “because of sex”; and that it inhibits the ability of a woman or man to do a job or be fairly compensated.

Therefore, the court explained, harassment represents a discriminatory harm upon the many women (and some men) who endure it as a condition of employment—and thus it violates Title VII’s prohibition against discrimination on the basis of sex. Employees who suffer harassment in the workplace must be compensated for their injuries, and employers who condone it are liable—both for their own sexually harassing behavior and for that of their employees.

The basic contours of the law of sexual harassment were thus laid down in a unanimous ruling written by William Rehnquist, who would become Chief Justice a few months later. Yet we are now seeing in the #MeToo movement a resounding, and ongoing, testament that many American sexual harassers have operated with virtual impunity over the past generation. Since last year’s blockbuster revelations in the New York Times about the conduct of movie mogul Harvey Weinstein, the basic narrative of sexual predation in the workplace has played out in Groundhog Day fashion: report after report shows that inexplicably large numbers of women suffer sexual harassment on the job in Hollywood, at media outlets, in academia, in law firms, in judicial chambers, in legislative halls, in executive office suites, on factory floors, in restaurants, and in retail outlets. And we’ve seen again and again that the victims consistently felt unable to gain access to the justice system and seek relief.

Some of the reasons behind such blocked access are now familiar: a mandatory arbitration clause in an employment contract; the prospect of worse treatment while on the job during the period of litigation; unfamiliarity with their rights as itemized under Title VII; an inability to afford the lawyer’s fee or the time off of work or the expenses of a lawsuit. The creation of a civil right against sexual harassment in the workplace was a profound achievement. But the law in practice has failed to provide recourse for too many of those whose civil rights are violated.

A Culture of Noncompliance

There’s another sense in which the law has come up short: thirty years after the fact, the precarious civil right to be free of sexual harassment at work still faces powerful headwinds in the various courts of public opinion. A minority but substantial number of professional legal commentators—including, prominently, Harvard Law School professor Janet Halley—have long warned that sexual harassment law stigmatizes healthy sexual expression, and more specifically that it may empower those who suffer from little but their own neurotic sexual self-loathing to persecute co-workers whose otherwise harmless advances may have triggered their own sexual impulses they are at such pains to deny. American writer Caitlin Flanagan wonders whether the spillover effect of #MeToo is destroying the lives of unlucky men who are guilty of little more than undertaking clumsy sexual overtures or (what often amounts to the same thing) failing to read the minds of women who have been rendered passive and mute by this overly protective movement. Meanwhile, preserves of male impunity in such matters—notably the Trump White House—have loudly complained that men are denied due process when complaints are made public. A veritable chorus of the law’s critics has emerged with a shared refrain: women have more to lose than gain from this purported legal revolution. Much of the anxious talk of media and legal excesses concerning the curtailment of harassment boils down to one still-undemonstrated claim: all of the handwringing over the issue is the product of a sex panic—one that will trigger a costly backlash for the cause of true gender justice.

The basic narrative of sexual predation in the workplace has played out in Groundhog Day fashion.

The #MeToo movement may, as its visionary originators intended, create a greater sense of cultural and political solidarity around the wrongness of sexual harassment. Or it may unintentionally backfire, creating an ever-greater sense of sympathy for the accused and suspicion toward the law that clamps down on us all. What’s gone wrong?

We are not wanting for explanations. Consider, first, the scale of cultural resistance facing the recognition of harassment as a harm. We live in a rampantly sexualized popular culture, with attendant booms in pornography, on and offline. We’ve seen the unchallenged rise of a vaguely left-wing sex-positive movement designed in part to blunt the effectiveness of sexual harassment law. And behind all of these flashier celebrations of sex as untrammeled liberation is a well-documented conspiracy of patriarchal silence: an abiding reluctance to hear or believe women’s accounts of their assaults or harassment by men. Taken together, these cultural forces resemble nothing so much as a nonstop tsunami hurling itself against a weak, jury-rigged, and recently erected legalistic dike. The dike’s not going to do much, but it might be doing something. At least it’s still standing.

Second, the robust enforcement of harassment law is mired in sometimes legalistic obstacles, such as the mandatory arbitration and nondisclosure agreements mentioned above. The specifics of the law are also sometimes unfavorable to plaintiffs. A decade after the Meritor ruling, Berkeley law professor Kathryn Abrams argued that sexual harassment law might solidify status quo norms, if the hostility of a work environment is subjected to a norm of “reasonableness” that turns on male perceptions of what is and isn’t “hostile.” More recently, law professors Deborah Brake and Joanna Grossman have catalogued the ways that Title VII in general ill serves plaintiffs, by failing to provide sufficient safeguards against retaliation, and requiring a prompt and definitive filing of grievances. As Brake and Grossman argue, this latter condition in particular overlooks the sheer difficulties of recognizing and confronting discriminatory behavior, while also perversely requiring defendants to prove too little when mounting defenses.

Losing from Behind

Finally, aside from the specifics of the law, there are political or social problems with its overall thrust. Unlike other civil rights that are eventually codified in law, sexual harassment law was not preceded by a social movement; the law was ahead of public opinion on this issue, and quite possibly still is. This speaks well of law, and particularly of the judges who crafted the early opinions leading to the Meritor decision, but we may be now reaping the all-too-steep and evident social costs of that history. A number of women as well as men regard their sexuality as an asset in the workplace, and don’t want to lose the ability to wield it. Meanwhile, a number of other women forcefully resent rather than identify with those who complain that their sexuality has led to their harassment.

Many regard the law as fatally overbroad—meaning either that it focuses unduly on harms that are trivial, or that it doesn’t sufficiently weed out claims involving trivial harms. The cultural mandate now to “believe the women” doesn’t accord due process rights to the accused when cases are tried in the press—and, some critics now complain that the courts are, if anything, over-crediting women’s accounts by employing a “reasonable woman” standard in assessing conduct.

However we go about cataloguing its symptoms, this deep and ongoing dissension around the basic understanding of what counts as harassment and its punishment stems in no small part from the vanguard formulation of harassment law under Meritor. After three-plus decades of the law moving too far in front of public opinion, public attitudes are still in flux.

These variable explanations of our present state of confusion are all worth working out in greater detail. But I’d like to highlight two additional reasons for the law’s rough reception, in the courts of law and public opinion alike. The first concerns some features of the way our sexual harassment law has been framed. The second concerns the nature of the behavior sexual harassment law declares wrongful: unwelcome sex.

Of Touchings and Torts

What is the legal wrong of sexual harassment? Sexual harassment is not simply boorish, immoral sexual behavior on the job. Nor is it nonconsensual—and therefore criminal—sexual assault or sexual battery. Sexual harassment is the imposition of unwelcome—not necessarily nonconsensual—sexual advances or behavior, either physical or nonphysical, at work or school. When it interferes with one’s ability to engage in work, it’s a violation of the victim’s civil right to a nondiscriminatory workplace. And when it occurs at school, it likewise impermissibly obstructs a victim’s right to equal and nondiscriminatory education, guaranteed by Title IX of our Civil Rights Acts. In both settings, the status of harassment as a Title VII or Title IX violation means that it can result in actionable claims for damages and injunctions in civil suits.

It’s important to note that much of the behavior that harassment law targets, when construed under ordinary state law, is also a tort—i.e., an actionable infringement on the integrity of one’s person—or, if sufficiently severe, a crime. Nonconsensual sexual touching at work (or elsewhere) are batteries, and sexualized aggression that falls short of physical touching might qualify as assaults or the intentional infliction of emotional distress. Before the advent of Titles VII and IX, and before the turn to civil rights as the framing of sexual harassment, courts did at least occasionally treat these touchings or assaults as common, or garden-variety, intentional torts.

However, modern courts have not developed a robust body of tort law addressing these behaviors. Instead, virtually all judges and lawyers, as well as most ordinary Americans, have adopted a view of sexual harassment as primarily a form of discrimination at work or school, and for that reason only secondarily or incidentally a tortious assault or any other kind of personal injury. Sexual harassment is thus, in the eyes of law, now understood as being more akin to the group-based wrong of discrimination than it is to the “personal” wrong of assault or battery. It is an instance of treating someone differently “because of their sex”—i.e., akin to the manner in which discrimination generally is a wrong because its victims are treated differently because of their race or some other innate and irrelevant characteristic. Given this framing, the act of harassment often loses what might be termed its common-sense character as a wrongful personal injury—an assault, a battery, or an infliction of emotional distress that, because it is a violation of a person’s physical sovereignty, renders it a tort, i.e., a private, compensable wrong, giving rise to a judicially imposed remedy.

There were good reasons that second-wave feminists of the late seventies urged the courts to rethink, or reframe, harassment as a form of Title VII discrimination, rather than (or rather than only) as an intentional tort, actionable under state law. As Catharine MacKinnon convincingly showed in her breakthrough 1979 book, The Sexual Harassment of Working Women, the older tort law of assault and battery was compromised by moralistic assumptions about the nature of sexual behavior—and even modern tort law fails to grasp the systemic and economic nature of the harm. Then as now, tort law had no language with which to express or condemn the deep connections between sexual harassment at work and women’s unequal condition in American society at large.

Conceptualizing sexual harassment as a form of discrimination, and therefore as a civil rights violation, occasioned a profound shift in legal and (by extension) public consciousness: it put forth the claim that this form of personal aggression and its routinely expected sufferance represent a linchpin of the subordination of women, forbidden by our civil rights acts, and not only by state tort law. The emerging consensus around harassment as a discriminatory harm elevated the legal recourse against it accordingly as a strike for women’s equality—much as, say, voting-rights and anti-redlining court decisions codified a slowly emerging consensus against racial discrimination in our legal system. They couldn’t be effectively waved away via legal compensation for batteries or assaults suffered by individuals, and treated as though they were no different in kind from the injuries sustained in a barroom brawl. This consensus marks a deep, qualitative shift in our understanding of equality between the sexes, and we have Catharine MacKinnon and the early lawyers and activists who framed the issue this way to thank, and to credit.

Worked Over

But any legal strategy can also entail opportunity costs for both aggrieved complainants and the elaboration of social consensus, and that’s plainly been the case here. Some of our current public ambivalence over the wrongs of sexual harassment and the benefits of the law proscribing it can be traced to this legal framing of the wrong: the first-order definition of sexual harassment as, at heart, a form of discrimination rather than a personal injury, which might be adjudicated through tort law. First, it’s simply confusing. Is sexual harassment really sex discrimination? And is it really discrimination? Is the harm in being treated differently, because of your sex? Is that what you think when you suffer it? “Goddamn it, I’m being treated differently because I’m female. This wouldn’t be happening to me if I were a man. That’s unfair.” Or do you think “get your goddamned hands off of me”? The construction of sexual harassment as wrong because it’s discriminatory seems at odds with our experience of it as wrong because it’s assaultive—an unwanted touching, or battery, that violates our physical integrity at work.

But there are other problems stemming from the formulation of sexual harassment as sex discrimination—or more broadly, as a civil rights violation—that may be a little less obvious. First, that formulation seems to many, not at all without reason, as badly under-inclusive. As Yale Law Professor Vicki Schultz has persuasively argued, women often suffer harassment at work that may be unrelated to anything having to do with their sexuality but everything to do with their gender: being repeatedly referred to as a bitch or girl or stupid, being presumed incompetent, being the object of looks-based ridicule, or being required to perform non-work but gendered tasks such as babysitting, gift-shopping, and so on, may have everything to do with gender and literally nothing to do with sex. Gender harassment of this sort may be every bit as much an obstacle to advancement as sexual harassment.

The U.S. Equal Employment Opportunity Commission has now recognized as much, and treats these forms of gender harassment as discriminatory violations of a worker’s civil rights. But adding the category of gender harassment doesn’t cure the problem of under-inclusiveness—if anything, it underscores the basic difficulty. All workers—men, women, trans, cis, gay, straight, and bi—suffer harassment on the job constantly by virtue of their status as workers, and have absolutely no “civil right” under the law to be free of it, unless by chance it can be regarded as racially or sexually charged.

Who owns access to a woman’s body?

The bullying, the belittlement, the undermining, and the generally shitty, uncivil, and sometimes sadistic treatment of workers that is a part of so many workplaces goes at best unchallenged under the prevailing legal definition of harassment as discrimination. At worst, this consensus actively shores up this destructive status quo, by homing in on a civil right to be free of only some of the more egregious forms of gender harassment—and only then if it can be characterized as sexual and aimed at a victim because of sex. That some harassment at work is a civil rights violation, in other words, helps legitimate the considerable harassment that cannot be so characterized.

This is a regrettable implication of the structure of virtually all of our civil rights laws, including our law of sexual harassment. All workers should enjoy a civil right to a harassment-free workplace. All workers should enjoy a right to be treated with dignity and respect in their place of employment. Work matters, hugely, to virtually everyone; it is often our central place of civil identity. Civil rights should not only address discrimination, regardless of how we interpret sexual harassment as an elementary mode of discrimination. Civil rights and civil equality should fundamentally sustain our rights to inclusion as equals in public spaces, which most profoundly include our work spaces. We all should have a right to civil treatment: in fact, that should be our absolutely non-negotiable core civil right.

Emily Haasch

Harassment Off the Clock

There is a second way, however, in which the folding of sexual harassment into Title VII’s antidiscrimination law has proven under-inclusive. The legal understanding of sexual harassment as discrimination rests on the claim that sexual harassment at work is wrong because it is both discriminatory and interferes with women’s work, and therefore undercuts women’s equality.

And indeed it does. However, there’s a more colloquial understanding of “sexual harassment” that refers not to the abrogation of workplace rights or the undermining of workplace equality, but rather to the underlying behavior—the sufferance of unwanted or unwelcome sexual touching or advances. This brand of sexual harassment clearly doesn’t only happen at work. It happens on the street, in public spaces other than work spaces, and perhaps most persistently, in homes. Unwelcome sexual advances at work are suffered basically because of economic coercion that pertains to labor: the conditions of harassment are endured because one’s work and paycheck are conditions of survival. But unwelcome sexual advances at home or in the street are suffered because of other forms of coercion, or other forces of social life—some subtle, some not. Targeting sexual harassment at work as a civil rights violation has the unintended but predictable consequence of rendering sexual harassment everywhere else to be less understood, and perhaps even invisible, in both cultural and legal terms.

The law’s message is pretty clear: if the sexual harassment you’re suffering isn’t happening at school or work, it’s not remediable, at least as a matter of Title VII law. This looks and feels wrong. Doesn’t the sufferance of unwelcome sexual advances in other spheres also undercut women’s equality? Does all of the unwelcome sex and sexual attention women endure only injure them if and when it is coerced through the mechanisms of the paycheck? Does that mean that in all those other spheres of life—home, the street, the public square—sexual harassment, understood as the imposition and sufferance of unwelcome sex, is okay? Is harassment elsewhere normal or unobjectionable—a kind of persistent cultural white noise that’s just something women are supposed to put up with?

Maybe sexual harassment is only a civil rights violation—and therefore only a wrong—if it’s accompanied by the coercive power that comes at the end of the stick of employment. Maybe in other spheres it is what it has always been: what women put up with. Maybe in those non-work-related contexts, in other words, women’s bodies are still up for grabs.

Or maybe not. But the very strength of that inspired legal revolution, dating from the 1970s, to treat unwelcome sexual assaults, batteries, and advances at work as civil rights violations, has led inexorably to confusion over the status, nature, and harmfulness of all of that conduct outside of work. And outside of work, even more now than within workplaces, that’s a fearsomely tangled web.

The Body of Precedent

Much of the public is demonstrably confused about both the forensic and the larger social meaning of the central defining concept in harassment law: “unwelcome sex.” When unwelcome sex or the sufferance of unwelcome sexual advances happens at work, it might be actionable. But what is unwelcome sex, whether it happens at work or elsewhere? In part because we’ve settled on the legal understanding of sexual harassment as a form of discrimination imposed differentially on women (and some men) because of sex, an awful lot of scholarship and jurisprudence has been devoted to the task of articulating the sense in which unwelcome sex is discriminatory, and hence a civil rights violation. Much less legal thinking has been devoted to the task of articulating what unwelcome sex is, and why it might be injurious, at work and elsewhere.

That is unfortunate. It also badly undersells the profundity of the initial formulation of sexual harassment as a legal wrong. Recall that this formulation rested on not one, but two ground-changing insights: that sexual harassment should be a civil rights violation because it undercuts women’s equality; and that unwelcome sex is the foundational component of the harm. The former is novel, to be sure, but the latter is flat-out bizarre. To put it lightly, virtually no one, prior to this movement, had ever discussed or much thought of violations of bodily sovereignty—something universally regarded as wrongful—as including something called “unwelcome sex.”

So again, what is unwelcome sex, the chief behavior targeted by sexual harassment law? First, it is not the same as nonconsensual sex, the behavior targeted by criminal law. Of course, nonconsensual sex is virtually always unwelcome. But unwelcome sex is not necessarily nonconsensual. Unwelcome sex can, indeed, be fully consensual. When it is, it is not rape. More generally, unwelcome sex may be, but is not necessarily, assaultive. So if it’s not rape or sexual assault, what is it? How do we go about defining and remedying it when it happens outside the structures of employment? And how bad does it have to be, to be rightly regarded as harmful?

The law was ahead of public opinion on this issue, and quite possibly still is.

These are truly hard questions, and so far our discussions of them, inspired by the #MeToo campaign, have only barely begun to scratch the surface. Let me suggest that we might break this down a bit, by looking at three different types of “unwelcome sex.” The first is the most familiar. Much sex that is unwelcome is the result of coercion, and much of that coercion is the result of financial necessity. But employing financial reward or punishment as a means to obtain unwelcome sex does not meet the legal standard of rape. More generally, sex that you have because if you don’t, you might lose something you care deeply about, such as your job, or your lease agreement, or a meal, or approval from a teacher, or acceptance by your community, or your husband or boyfriend’s good graces or civility, might be or feel coerced, but it is not for that reason rape. The law doesn’t regard these forms of coercion as sufficiently immediate, or frightening, or threatening to life and limb to vitiate consent. Unless and until that changes, there is a great deal of coercive sex—sex procured through the exercise of power, by basically threatening the withholding of something necessary or strongly desired by the coerced party, that is legally regarded as consensual and therefore non-criminal. When it occurs between bosses and workers, such coerced, unwelcome sex can become, via the strictures of the Meritor ruling, sexual harassment. Coerced, unwelcome sex outside of the workplace, however, is neither criminal, if consensual, nor is it sexual harassment—because it doesn’t interfere with one’s rights to employment. Perhaps it should be criminal, or perhaps some of it should be. But it currently is not.

Touch and Go

There is, however, a much broader category of unwelcome sex that might or might not be sexual harassment, again largely depending upon where it happens: unwelcome sexual touchings, by dates, strangers, co-workers, family members, or acquaintances. Imagine you are in line at a drinking fountain at work, and a co-worker who you know comes up behind you and slaps your rear. Imagine your friend’s boyfriend does the same thing at a public swimming pool. Imagine a stranger on a subway places his hand on your rear or breast or crotch, or that he grabs your hand and places it on his penis. Imagine that a stranger walks up behind you on the street and puts his hand between your legs, as the president bragged he gets to do because he’s famous, without consequence. Unless they happen at work or school, these encounters are not sexual harassment, as defined by law. They all are, however, or might be, invasive and uninvited. They’re all examples, presumably, of unwelcome sex.

But is that presumption fair? Are they, in fact, unwelcome? How can we be so sure? Again, none of these touchings are consensual, obviously: you didn’t consent to any of them. But, and this point is too often overlooked, you didn’t withhold consent to them either. You didn’t say “no” to any of this physical contact because you weren’t given the opportunity; you didn’t have time to. In fact, you gave absolutely no “cues” that you weren’t consenting—again, for the simple reason that they happened too fast, and you obviously weren’t asked. So, if you didn’t either consent nor withhold consent, how do we know that they were unwelcome? Should we presume as much?

A comparison is enlightening. If a stranger, acquaintance, or co-worker comes up behind you and intentionally pushes you down on the street, you don’t either actively consent or actively withhold consent. And tellingly, in that nonsexual context we have no difficulty at all construing that attack as an assault and battery—largely because we can readily presume that you didn’t welcome it. Had you been asked, you would not have consented, so the fact that you didn’t have time to withhold consent doesn’t keep us from concluding that you were criminally and tortiously battered. We don’t really need to spell out why, either: no one enjoys or welcomes being pushed down on a street or in a subway car. We don’t tolerate that kind of behavior. It’s assaultive.

But where the touching is sexual, even between strangers, but even more so between co-workers or acquaintances or friends, intuitions are seemingly less clear. Some of us may well not have the intuition in the first place. Who knows? Maybe the worker at the water fountain welcomed the pat on the ass from her co-worker down the hall. Maybe the girl at the pool had been craving sexual attention from just that boy at just that moment at the swimming pool. Maybe if either had been asked, unlike the victim of the assaultive shover on the street, they would have consented to the touching. Maybe the woman touched on the street or subway is just the kind of person who always likes to be touched sexually, by practically everybody, so it’s safe to presume that if asked, she would have happily—affirmatively even—consented. Maybe she likes sex as much as he does, and welcomes it across the board. Maybe since sex always feels good, what the hell. Maybe it’s all just—at worst—unreciprocated flirtation, and if she doesn’t like it she should just accept it as the compliment it might have been intended to be, say no thanks and move on.

The very radical idea implied by the formulation of “sexual harassment” as “unwelcome sex” highlights just this real-world ambivalence. In effect, it declares that, contrary to the “what if” assumptions spelled out above, much, most, or all of this “sexual touching” by strangers or co-workers or acquaintances or friends’ boyfriends and husbands in public or semi-public places is indeed unwelcome. It is so clearly unwelcome that, like the nonsexual intentional shove on the street, it should be regarded as assaultive—just as clearly nonconsensual. The central idea implied by the initial formulation of sexual harassment law, in other words, is that in point of fact we should assume, in many or all of these cases, that these sexual acts are not harmless flirtations. We should rather adopt the view that they are unwelcome and assaultive.

This has proven to be, for many people, a hard pill to swallow. Aren’t these actions at worst, boorish, crude flirtations that are for whatever reason unreciprocated? Are they really wrongful? Even if no harm and no foul was intended? After all, they were motivated by—at worst—lust, not any intent to harm. Are they really so close to a brazen physical confrontation that we should assume they’re assaultive?

To Each His Ownership

Answering “well, actually, yes” to those questions, even if that answer is obviously true to many of us, nevertheless constitutes a major resetting of a number of deeply held assumptions about women’s bodies, their availability, and whose pleasure counts. I’ll just note two. The first assumption regards ownership. Who owns access to a woman’s body? History here counts. Recall that prior to the repeal of marital rape exemptions, and changes in our no-fault divorce law, and the availability of legal abortion—all less than half a century ago—the answer to that question was relatively clear at least within the bonds of marriage: a husband basically owned access to his wife’s body. And as befit his status as owner, he could use it, maybe not entirely as he wished, but pretty close to that, at least for either or both of two purposes: his sexual gratification, and her impregnation. He could have sex with her when he pleased; it didn’t matter whether she consented, welcomed, or wanted the sex. He could impregnate her also as he pleased.

Without access to legal abortion or reliable birth control to control the number of pregnancies, to say nothing of the children, that were the natural issue of all of that unwelcome sex, she held no veto power. He could, pretty much, “grab her by the pussy,” stick his tongue in her mouth, or penetrate her however else he pleased while she stood at the kitchen doing the dishes, or while she tried to do the homework for her GED or community college course, or while she weeded her garden or read or watched television. In the process of procuring his access to her body, he could also call her whatever obscene or belittling or hurtful words he pleased.

He could do all of this without legal constraint. Outside of marriage, of course, was a different story: all of this sex and all of these sexual advances were forbidden even if entered into entirely as a matter of mutual consent, or otherwise welcomed, wanted, and desired. This omerta on extramarital sex was enshrined in laws against sodomy, fornication, and adultery, as well as via the powerful cultural stigma of childbirth outside of marriage. Inside marriage, though, sex was not only permitted but permitted without constraint—without, specifically, the constraints of legal or moral requirements of mutual consent, mutual welcomeness, or mutual desire. Inside marriage, at least, a married man could “get away with it.” That’s part of what it meant—among much else of course—to be married.

A Man’s Prerogative

Between then and now, the sexual revolution intervened, and marriage is no longer the line between the licit and illicit in all matters sexual. That’s proven a liberating development in all sorts of now obvious ways. The downsides of that revolution are not so obvious and much less discussed. And one key such downside might be this: the dissolution of marriage as the marker between the licit and illicit may also mean that the privileges of ownership once enjoyed by the husband and suffered by the wife in marriage now extend, so to speak, willy-nilly, to, well, all men.

We got rid of the marital line as the marker between licit and illicit sex, and part of what we did when we did that was perhaps to extend ownership rights, albeit in a watered-down form, to men as an amorphous social class. The ownership that a man once had of sexual access to his wife, might now be regarded—by some—as having been granted to men generally, rather than to a particular man. Women’s bodies—for some—have in effect become not owned by husbands but rather annexed into part of the commons. The entitlement a man enjoyed to his wife’s body by virtue of marriage, to whatever degree that habits die hard, may now be felt far more broadly. We don’t restrict sex to marriage. Nor, then, do we restrict the rights of accessibility that came with it.

If there’s anything to that account, then the radical claim from 1970s feminism that “unwelcome sex” is a wrong visited by men upon women pretty much totally upends it. If unwelcome sex is a wrong, it’s wrong whether imposed by husbands, strangers, co-workers, boyfriends, hook-up dates, or acquaintances. The formulation of “sexual harassment” as “unwelcome sex” suggests, without explicitly claiming, that it is indeed a wrong, not only at work when under the gun of the employment contract, but generally so. And this same equation of unwelcome sex with harassment further suggests, again without explicitly claiming, that women themselves, not husbands and not men, own access to women’s bodies. Again, for some that’s just a hard pill to swallow.

Sex Rights and Sex Wrongs

The second and likely far more commonly held assumption about the question of access to women’s bodies is that the category of “unwelcome sex” is actually an empty set, or close to it, at least shy of rape. The idea here is that women do welcome sexual touchings, and if they don’t, it’s because of unhealthy frigidity or anti-sex or “sex negative” attitudes or beliefs. Frigidity is unhealthy and sex-negative beliefs are false, so women who don’t welcome sexual touching should just get over it. There’s plenty of cultural support for this assumption: sex has, after all, been liberated, and it has been liberated, largely, on the most often unstated assumption that sexual repression has always and everywhere been a great evil, and, contra Freud, an unnecessary one at that.

What is the legal wrong of sexual harassment?

The enlightened post-Freudian view of things is that civilization doesn’t depend upon sexual repression, so we should all just relax and enjoy available sexual connections. This message does not simply emanate from cultural sources. It also comes from the highest sources of our law. As any number of constitutional commentators have argued, we now have something like a “constitutional right to sex” that is pretty much on a par with our penumbral constitutional right to privacy. And we have that right at least in part because of the near-universal belief that since sexuality is a deeply human impulse, no less so than creativity and sociability, its expression is something like a birthright. Pornography of course has long conveyed the message that women naturally crave nonstop sexual attention, and pornography is now utterly mainstream, thanks to the internet. One somewhat predictable consequence of all this rights-talk around sex has been that high-status, liberated, left-wing men were shocked to find themselves the target of #MeToo complaints. They are not blowing smoke (or at least not exclusively doing so) when they protest that they are just flabbergasted—caught up short—by some of their accusers.

Finally, there is one more type of “unwelcome sex” that has come to light through the #MeToo movement. The idea of “unwelcome sex” as wrongful directly threatens moral or social censure of untold amounts of normal, ordinary, unremarkable, and usually unremarked-upon sex—including, for example, some romantic sex between dating partners, perfunctory sex in hookups, and the dulled and obligatory sex in committed relationships or in longstanding marriages. This humdrum brand of consented-to sex is often not mutually welcomed, or wanted, or desired, or ultimately enjoyed by both parties—but is also neither nonconsensual nor coerced, at least not by fists and knives or by the withholding of a paycheck. It isn’t rape or anything even remotely like it, nor is it actionable sexual harassment, so long as it doesn’t happen at work or school. Unwelcome, unwanted, undesired, but nevertheless consensual sex is ubiquitous, and has been so for god knows how many millennia.

Many women and girls, and some men and boys, engage in sex they do not want, desire, welcome, or enjoy for scores of individual or personal reasons. A girl may seek status from her peers, or the attention or affection of a high-status boy; a woman may submit to routinized unwelcome sex because she is dependent upon the man for economic support. A wife may do it because she needs her husband to leave money for the groceries in order to make the kids’ lunches in the morning, or because she wants his protection against other men she may rightly perceive to be dangerous, or because she wants to ward off a vague possibility that eventually he will rape her if she withholds her consent this time. A girlfriend may do it because she wants to avoid her boyfriend’s foul mood should she say no, or because she loves him and doesn’t want to hurt his ego or his feelings, or because she feels duty-bound to provide sex regardless of her own desire by virtue of the prescriptions of her religion. Or—and most complex, and impenetrable—a girl or woman (or a boy or man) may consent to sex she doesn’t want simply because she realizes how badly her partner wants it and she has internalized his desire as some sort of motivating command that should determine her sexual availability. She may consent to sex she doesn’t want or welcome because she thinks he will suffer physical pain if she does not provide him a means of sexual release and she doesn’t want to cause him pain. All of this sex is neither rape nor, in most cases, harassment. Nor, again, in most of these cases, is it even coerced. But it is unwanted and undesired and in many cases, at least, it is also unwelcome.

Emily Haasch

What Price Consent?

Suffering undesired sex, particularly over long periods of time, can be hurtful or injurious. Unwelcome invasive sex itself can be physically painful. It can also constitute, if engaged in repeatedly and over time, a massive psychic assault on one’s own sense of self. More specifically, it can completely undermine the sense of coherence, or unity, of one’s own assessment of well-being, on the one hand, and one’s choices, decisions, and actions in the world, on the other. It breaks the connection, widely assumed in Western and liberal cultures, between one’s own pleasures and pains, one’s desires, one’s preferences, and one’s choices. To be sure, the routine sufferance of unwelcome sex is the end result of choices and actions taken on the basis of pains and pleasures—but those actions and choices are taken on the basis of someone else’s desires, rather than one’s own. It is damaging to one’s physical integrity to be so constantly borne in upon, and it is damaging to one’s moral integrity to lie about one’s enjoyment of it.

These are not the harms of rape, and they are not the harms of sexual harassment sustained at work, either. But they are real. They are not well understood, but they are massive. And they are coming to light, slowly, and painfully, and with the deck stacked heavily against their exposure: we are, in this anti-paternalistic and market-loving culture, loath to acknowledge that we ever consent to behaviors or transactions that might harm us, whether in economic or political or intimate markets, and we are particularly loath to do so where the thing we’re consenting to is sexual. The moral and legal pass that we give to consensual sex rests on our rock-bottom refusal to examine the worthiness of that to which we consent, as well as our love now of all things sexual.

Nevertheless, those harms are increasingly in the spotlight, and in part because of the spillover effect of the sexual harassment targeted most directly by the #MeToo movement. Unwelcome sex—even when consensual, even when not rape, even when not coerced, and even when outside of school or work and not actionable as sexual harassment, is harmful, and should rightly be understood as such. Women in the #MeToo movement like “Grace,” who came forward with a pseudonymous account of a date gone badly wrong with the comedian Aziz Ansari, women not raped, not harassed, not coerced, even, but who nevertheless are harmed by unwelcome sex—are trying to get that message across.

Unknown Pleasures

So sexual harassment law faces real and forbidding obstacles—some legal, some cultural, some social. The behavior it addresses is ubiquitous, and the law does not often target ubiquitous behavior for extinction, or even for censure. What’s more, the law is beset by problems in contemporary legal culture quite generally: nondisclosure agreements and mandatory arbitration clauses blunt the effectiveness of sexual harassment law as well as private and civil rights law broadly understood.

Some hurdles, though, are indeed specific to sexual harassment law, and might stem from its initial framing as a civil rights violation. The law seems under-inclusive, if it is basically mandating workplace civility, and that weakens it in the minds of many. Why should we go down the road of enshrining another “special right” under the protections of our civil rights laws? And lastly, the norm the law expresses—that sexual harassment at work is wrong, because unwelcome sex is wrong—is hard for many to understand or accept, because its central construct—the wrongness of unwelcome sex—sweeps so broadly. When it is understood, it is by no means universally acknowledged.

What to do? Obviously, the essential work of publicizing the widespread practice of harassment in the workplace and the classroom must continue, as should political advocacy for the recognition of a civil right that should be enjoyed by all workers to a civilized workplace where all are treated with respect and dignity. But with respect to sexual harassment, more precision would help. Sexual harassment, delineated as a legal harm, is not necessarily nonconsensual, and therefore it is not necessarily rape or sexual assault, although of course some of it may be. It is the imposition and sufferance of unwelcome sex or sexual advances that interferes with work or education, and therefore undercuts equality.

But that same behavior targeted by sexual harassment law also undercuts the enjoyment of an individual’s physical integrity, personal sovereignty, and sense of self possession of one’s body. Those are the universal interests that have historically been protected, legally speaking, by tort law, and when sufficiently severe, by criminal law. It would behoove us to remember, and to underscore, that those interests as well are invaded and sometimes destroyed by sexual harassing behavior. While the interests in personal physical integrity and self-possession have long been recognized as central to tort law, it has not long been recognized that those universal interests can be—and quite routinely are—undermined, and sometimes destroyed, by sexually harassing behaviors, whether at work, school, on the streets, or in homes.

That simple fact can be elucidated by some of these #MeToo narratives, and could be underscored by emphasizing their nature as torts, protected by very ordinary tort law as well as civil rights violations. Indeed, it’s worth recalling that Catharine MacKinnon, who argued so persuasively almost four decades ago that sexual harassment should be regarded as a civil rights violation, also urged that these cases should also be understood, and pleaded, as torts, violating ordinary rights of personal physical integrity.

That sex is consensual means only that it’s not rape—not that the sex is either morally or hedonically good.

And finally, the legally recognized and actionable sexual harassment at work and school is an important, but limited, subset of all sexually harassing behavior, as now being explored by the #MeToo movement in all of its ramifications. Nevertheless, it was sexual harassment law and its expositors that put on the table, so to speak, the idea that unwelcome sex is harmful. That’s one powerful idea. A fuller exposition of the harms of unwelcome sex, without undue conflation of them with the harms of either rape or sexual harassment, is called for. Some of the unwelcome sex sustained outside work or school is rape, if nonconsensual. Even more of it, though, is coerced. Some of that coerced sex, where the coercion is severe, perhaps should be understood as rape or as some degree of sexual assault: sex obtained with the threat of terminating a lease, or challenging the custody of a child, or withholding a job or promotion, might be examples.

Less immediate or severe forms of coercion—the coercion of a peer group, or the threat of the withheld approval of a religious leader or a community—that are not criminal and should not be so regarded, are nevertheless harmful, and should be understood, criticized, and resisted as such. And as we’ve seen, a good deal of what counts as unwelcome sex comes in the form of unwelcome, unwanted, and nonconsensual sexual touchings, on the street, in social gatherings, and in homes. These encounters could and should be understood as batteries, no less than would be nonsexual nonconsensual touchings; their sexual nature does not, so to speak, purify them of their potential to harm, the imaginings of sex-positive utopians notwithstanding.

Finally, we need to reckon somehow with the vast amount of sex engaged by women and girls and plenty of boys and men as well, on campus as well as off, which falls outside the ambit of nonconsensual or obviously coercive sex but which nevertheless is both unwelcome and unwanted. Why do so many men expect women’s sexual compliance regardless of their desire, and why do so many women comply, regardless of the hedonic inclinations of their own bodies? Why do so many men—but also so many women—regard women’s sexual bodies as the means primarily of the fulfillment or satiation of others’ sexual desires rather than their own, such that they consent to unwelcome sex even under non-coercive conditions? Do they suffer harms by so doing? Shouldn’t we address this? Why don’t we, for example, when we fashion sex education curricula, insist that our children be taught to have sex only when they both welcome and want it, and not simply when both partners, for god knows what reasons, have “consented”?

What we seem to have a hard time recognizing is that while consent works fairly well as the demarcation of the legal from the illegal in the realm of sex—nonconsensual sex is rape, assaultive, and criminal, while consensual sex is none of that—at the same time consent is only a necessary, and clearly not a sufficient condition of good sex, i.e., sex that’s both hedonically and morally good.

This is partly because of the overvaluation, in this consumerist culture, of consent itself as a marker of value, and hence the prime moral determinant of virtually all personal transactions. Consent, after all, demarcates not only rape from legal sex, but also theft from gifts and bargains: nonconsensual takings are thefts, and hence illegal, while consensual transactions—bargains and gifts—are legal. That a commercial or gift exchange is consensual implies that it isn’t theft. But the same reasoning surely doesn’t mean that it is therefore a good, fair, or even mutually beneficial exchange, as the entire consumer movement from the 1950s to the present attests.

Likewise, consent (among other things) demarcates illegal slavery from legal work: if work is consensual, it’s not slavery. But that doesn’t mean the work or labor contract is good: it might be exploitative, dangerous, demeaning, and underpaid. Labor law and labor movements wouldn’t be necessary if consent alone was sufficient to guarantee that our labor contracts are always good.

Sex is parallel in this regard to labor and commerce, but in the sexual realm, our difficulties seeing the harms in the transactions to which we consent seem even more acute. That sex is consensual means only that it’s not rape—it’s not any sort of guarantor that the sex is either morally or hedonically good. Yet, with sex, we only have a vague sense of what the relevant moral constraints might be—beyond the minimal constraint of consent—that might follow from this. We’ve only just begun to put that question on the table. That consensual sex should be welcome by both sides—mutually desired and mutually pleasing, at least in aspiration—might be a good place to start. When women are, eventually, fully included in what my Kantian friend Heidi Li Feldman loves to call “the empire of subjects who are always treated as ends, and never as means,” I believe this will be understood. In fact, when that happens, all of this will likely be too obvious for words. But we’re not there yet.

Robin West is the Frederick J. Haas Professor of Law and Philosophy and Associate Dean at the Georgetown University Law Center.

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