Time once again to revisit the obnoxious feature of sexual harassment complaints that I tried to enlighten NPR listeners about when I was rudely cut off by my alleged friend, NPR host Michel Martin, who chose anti-Trump bias over what I was there for: to explain what almost no one understands about sexual harassment, including, apparently, Martin. (Yes, I am still furious about this episode, which resulted in my being black-balled from NPR, which I had assisted on short notice for several years. I will keep referencing it until I receive a full apology from Martin, and maybe a gift, which, of course, will happen when NPR starts being non-partisan, or in other words, never.)
My point in the fateful appearance on NPR years ago was that middle-aged (or older) men of power, celebrity and influence are often at risk from a phenomenon that springs from the weird aspect of sexual harassment as both a law and a phenomenon. It isn’t sexual harassment if it is genuinely welcome and appreciated by who would otherwise be the victim. However, neither the law nor the culture considers the situation in which a victim changes his or her mind over time. Thus a young, rich, single, famous young buck impulsively kisses a young woman in his employ, and she is thrilled. Maybe he really likes her! Maybe this is a life-changing event! She is neither offended nor upset, so it isn’t sexual harassment. Then decades pass, and the impulsive kisser is no longer young. Worse, he’s hated by all of the former employee’s friends, and that impulsive kiss all those years ago is no long welcome—except as a way to embarrass and hurt the current version of the rich and powerful man she once admired and even lusted after. She has decided now that she was harassed (or even sexually assaulted) then.
Is that fair? Is that even sexual harassment? As far as I can determine, I am the only commentator, ethicist or lawyer who has raised that question, and my reward for it was to be accused of being a Trump apologist, though my comment was not restricted to accusations against Donald Trump. The related ethical issue is whether it is fair and just for a women who took no action to report an incident that might have been harassment for decades keeps the incident in reserve just in case it might come in useful–to destroy the reputation of the man involved, shake him down, or otherwise harm him while benefiting herself. It’s like a treasure squirreled away to be cashed in on a rainy day.
That issue was raised this week, when Shelley Ross, who was an executive producer at ABC News who had been Cuomo’s supervisor, authored an op-ed describing the time Cuomo grabbed her read end during a going-away party for a colleague. She says she told him this was inappropriate—which does not prove she found it unwelcome—and that he later apologized, which only means that he was worried he might get in trouble. Now, she says, she is making her accusation only to inspire Cuomo to respond by educating his “Cuomo Prime Time” viewers on sexism in the workplace.
You know, just like Anita Hill decided to pull out the sword of Damocles she had been saving to hand over Clarence Thomas’s head in case Democrats wanted to block him from joining the Supreme Court.
Ethics foul. She is exploiting Chris Cuomo’s entanglement with his brother’s sexual harassment scandal for her own ends, and deliberately harming him with a dubious accusation that probably cannot be proven. It is unconscionable. I am gravitating to the position that if a sexual harassment episode isn’t reported within a reasonable amount of time, there should be a rebuttable presumption that the incident was welcome, and thus not sexual harassment. This would place the burden of proof on the accuser, not just to prove the episode took place, but to prove that she was upset by it.
I last wrote about this problem when Monica Lewinsky suddenly announced that she realized Bill Clinton had sexually abused her. But in Monica’s case, at least she can justly argue that she could not meaningfully consent to how the President of the United States treated her because of the power disparity between them. Ross has no such excuse: she had been Cuomo’s boss.
This phenomenon abuses the purpose of sexual harassment law, and gives former associates of the powerful and famous the means to destroy them by simply changing their minds. If it can’t be prevented, then at least it need to be understood, recognized, flagged and condemned.
I have little but contempt for Chris Cuomo as a journalist and talking head, but heis the victim here. Now.
Ethics Alarms 
There’s some period of time that’s required for victims to process what happened, which will vary, depending on the maturity of the victim and the nastiness of the perpetrator. But there does have to be some sort of statute of limitations on bringing these things to light. I think the me too people seem to think the damage can remain unknowable almost indefinitely. See, eg., Blasey Ford v. Kavanaugh. But that’s simply not practicable. I guess Jonathan Turley would say that’s “problematical.”
Jack wrote, “I am gravitating to the position that if a sexual harassment episode isn’t reported within a reasonable amount of time, there should be a rebuttable presumption that the incident was welcome, and thus not sexual harassment.”
I suggest that you delete the “welcomed” as that is a bit of distraction. I would write the sentence as “a rebuttable presumption that the incident was not sexual harassment.” Welcome vs. unwelcome muddies the water, as far as this somewhat befuddled commenter is concerned. Why? Sexual harassment is about disparity in power. Lewinsky was never on equal footing with Clinton. Deshaun Watson and his numerous accusers were on equal footing because the incident occurred in a “spa” where certain “activities” might just be part of the contract.
Cuomo and his accuser are reverse – she was the power broker, and he was the subordinate, though being son of the New York Governor might just tip those scales in his direction. I am certain Cuomo used that position to his advantage all the time. He is not overly bright, insightful, or articulate. He served a purpose at CNN while his father and brother were governors. Now, this scandal breaks? Timing is everything, no?
I said before that Chris Cuomo’s days at CNN were numbered because he no longer had access to the halls of power in Albany, and his ratings are not great (Gutfeld, in a few short months, has obliterated him and the other late night comedy shows), so what does Cuomo bring to CNN other than more distraction. I will not be surprised if he takes a “sabbatical” soon.
jvb
“Welcome vs. unwelcome muddies the water”
It may muddy the water, but it’s part of the law. Disparity of power isn’t, and it’s not even universally accepted as making “welcome” irrelevant, as it was in Monica’s case. You can’t determone whether conduct was sexual harassment based on the conduct itself, unlike with most forbidden conduct. If the “victim” accepts and appreciates it, then it’s not harassment. That’s the key point almost nobody understands.
I can see why your NPR friend cut you off. Sexual harassment and certain types of sexual assault come into a gray area, especially if the accusation is levied long afterwards when the accused is being considered for a high profile position. The more I hear from Democrats, the less nuance they feel obliged to disclose. There cannot be more than two explanations.
Our mounted CBP agents are a recent example. The visceral reaction is now unimpeachable fact. Whether their leader knows if it is inappropriate to condemn the incident prior to having any facts is another matter, but by doing so, today’s Democrats have no choice but to agree. Can’t have the public getting too curious about such things.
OB
The issue is whether or not the advance was welcomed and not if damage was done. If the behavior was no big deal or welcomed at the time, deciding later that the one can get a benefit from going public and saying it was unwelcome is grossly unfair to the accused.
I would allow a person to create a contemporaneus account of events and file it away if the victim felt that filing a charge at the time could be adverse to the victim’s professional interests. Such an account should include corroberation from a person or persons the victim confided to at the time. However any account must be made public at the first opportunity after the adverse conditions cease to exist.
I guess I wasn’t really focused on the welcome or not thing. Chris. I think the underlying argument in favor of unlimited time to report is the theory that what in the past was considered acceptable behavior or consent by the victim, is now considered not acceptable behavior and, for example, unequal power dynamics, therefore it can be reported and have consequences at any time whatsoever. This incident is alleged to have occurred in 2005, sixteen years ago. I think this woman’s supporters would argue that in 2005, this was just considered a harmless bit of grab ass. But now, it’s sexual harassment, clear and simple. Ironically, I think the Me Too people consider the long ago aspect of the accusation an element in their favor.
OB
The concept of power dynamics is debatable in the era when a mere accusation can get a CEO fired. If we want to equilibrate power between the two parties then both sides have to have something to lose in the case. An accuser who faces no repercussions or costs for making an allegation has far more power as time passes and memories fade especially when social attitudes continue to believe men are sexual predators.
You’re right, Chris. I just have some personal history that influences my views on this. I lost my college girlfriend/common law wife in my mind, to a predator college professor. He raped her whereupone she jettisoned me (with no explanation whatever) to take up with him for five or six months until she realized he was an alcoholic and a predator. I’m not saying believe all women, but, Jesus H. Christ, there are a lot of really bad guys out there.
Cheers. How are things in Hagerstown?
You have reminded me of a line in Aristophanes: “How are things in Sparta?”, “Hard, sir, hard”.