Prof. Eugene Volokh, UCLA Law School
Cite as Eugene Volokh, If Everything Is Harassment, Then Nothing Is, Baltimore Sun, Jan. 12, 1995, at 19A. (Also printed in the L.A. Daily News and in the Deseret News.)
Consider the following: The typical hour of TV sit-coms in 1990, a recent report said, showed 9 incidents of sexual harassment. And instead of condemning this behavior, the TV programs actually seemed to approve of it. The report was written by two Ph.D.s and a grad student at the University of Dayton, presented at the November 1994 national meeting of the Speech Communication Association, and cited in USA Today and other newspapers throughout the country. Television, the report concludes, "may actually encourage sexual[ly] harassing actions by failing to portray the unacceptability of the behaviors."
Indeed, if TV really does condone sexual harassment, that's something to worry about. But look a little closer at the report, and you see a different picture. What, in the researchers' view, counts as harassment? Well, here are the categories: Sexual Remarks. Sexually Suggestive Looks and Gestures. Kissing. Touching or Grabbing with Sexual Intent. Date Requests. Physical Space Violations with Sexual Intent. Of course, they all have to be "unwelcome" -- if the conduct "was cordially accepted by the recipient," or if it was "ignored or not heard" -- it doesn't qualify.
Interesting. John says "Sue, would you go out with me?" Sue says "No thanks, John, I'd rather not."
John meets Sue at a bar, talks to her a bit, and tells her "Baby, you are one hot mama" (this quote is the researchers' own example). Sue says "Well, actually, I think you're a dweeb."
John is at a party and looks at Sue suggestively. Sue turns to her friend and asks "Who is that jerk?"
Each of these cases would be harassment under the researchers' definitions. Over 90% of the so-called harassment the researchers found was sexual remarks, sexually suggestive looks and gestures, and requests for dates. Only 5.6% of the incidents fell into more serious categories -- unwelcomed kissing, touching, or grabbing; another 1.6% were physical space violations. Nearly 95% of the conduct occurred outside the workplace.
In fact, the great majority of this is certainly not harassment from a legal point of view. The researchers claim they used the "legal definition of sexual harassment," but the law, wisely, doesn't ban sexual remarks or leering or asking people out at parties or in bars. It covers only the workplace and, to some extent, the schoolhouse. And even at work or in school, to be illegal the conduct must be "severe or pervasive" enough to create a "hostile or abusive" environment. One remark or look or date request -- or even a few -- are, understandably, not enough.
But even setting aside the law, most of what the researchers describe ranges from the unobjectionable -- sometimes, if you ask someone out, they'll say no -- to the merely mildly rude. Perhaps some of the remarks, gestures, looks, or date requests were indeed harassment: sexual extortion by people in a position of power, or persistent insults or date requests that are so frequent that they become threatening. But the Dayton researchers made no effort to separate the real harassment from the spurious.
The word "harassment" sounds nasty, as well it should. But it's chronically redefined by people to mean whatever best suits their theory. A year ago there was a lot of press about the American Association of University Women's "Hostile Hallways" report. 85% of all high school girls and 76% of all high school boys, the report said, had been sexually harassed in high school.
The problem was that the report defined harassment to cover any "sexual comments, jokes, gestures, or looks." The numbers included anyone who has even once, in the three-year hormonal pressure-cooker of high school, been the target of a sexual comment, joke, gesture, or look. Given that, the only surprise is that 20% of all high-school graduates had never been leered at.
Surveys like these are a troubling sign. To begin with, they don't speak well of the academy. Definitions which lump so much acceptable conduct together with the unacceptable can't possibly yield any useful data. One would hope social scientists would know better than to waste money this way.
But beyond this, the definitions in the surveys reveal a deeply wrongheaded view of relations between the sexes. Consider one of the Dayton researchers' complaints: TV may give viewers "inaccurate conceptions about the appropriateness of sexually suggestive looks, gestures and remarks. In this study, these behaviors were frequently portrayed as a favorable and positive way to initiate relationships."
The simple response, of course, is that sexually suggestive looks sometimes are a positive way to initiate a relationship. Humans don't mate through antiseptic exchanges of formal proposals, calculated to avoid the slightest risk of offense. They look, they talk, they flirt. Sometimes they get rejected; sometimes they miscalculate, and come across as vulgar or juvenile. "Harassment"? Let's have some sense of proportion.
Finally, the fanaticism that it takes to condemn "sexually suggestive looks" as harassment is not easily cabined. The last few sentences of the Dayton report are chilling. "This current study has established that sexual harassment" -- as the authors define it -- "is prevalent in the popular media. . . . Ultimately, the escalation of this debate will surely test the relationship between the right to free expression and the expectation of socially responsible behavior."
The right to free expression is endangered because TV doesn't condemn rejected suitors, or even mildly vulgar louts. Something here is deeply wrong.