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Hoisted from Comments: Spiff on David Brooks

Apropos of David Brooks's attack on Herman Cain's critics:

David Brooks: Now we turn to ethical issues. My first question, and this is a genuine question, concerns the victims. Let’s detach ourselves from the specifics of the Cain case and consider a general question: If you are the victim of sexual harassment, and you agree to remain silent in exchange for a five-figure payoff, should any moral taint attach to you? In the old days, somebody who allowed a predator to continue his hunting in exchange for money would certainly be considered a sinner. I’m reluctant to judge people in these circumstances, but I’m inclined to agree. Am I missing something?...

Finally we turn to what Cain is alleged to have done. Where is the harassment line these days? If an employer asks a woman to come to his hotel room and she says no and he lets the matter drop, is that harassment? I confess I’m not sure. I’ve worked at places where people who worked together had romantic relationships. I presume those relationships started with one person making an overture. Is it harassment if the overture is rejected but not harassment if the overture is accepted or is any overture between people at the same firm harassment on its face? Again, I’m not saying this is proper behavior, I’m just wondering if it’s harassment....

Then there are other vaguely described infractions. Cain is alleged to have made physical gestures that were not overtly sexual. These made people uncomfortable. Don’t know what to think of that. Is someone else’s discomfort automatically a sign that something egregious is going on?


David Brooks: Property and Contract Rights Are Not for Little Female People: The point about silence seems to arise from a convergence here of civil and criminal law. A civil tort suit may incidentally be in the public interest, but is brought by an individual or group to remedy a personal wrong. On the other hand, the criminal system represents action by a government authority on behalf of the public.

Sexual assault brings a criminal tinge to the area of civil compensation. No one says it's wrong to settle a car accident case because the public won't know what a terrible driver the defendant was. But sexual harassment is, or might be, criminal conduct, so there is a desire to have the perpetrator stopped.

If they considered it in the public interest, authorities could investigate whether there is a crime in cases where they learn of the parties to a civil nondisclosure agreement. As far as I know this doesn't happen; I don't know whether it should. (Note also that a civil nondisclosure agreement may include an agreement not to press potential criminal charges, but not an agreement to testify falsely in the future. "But I have a contract" is not a recognized legal privilege.)

Turning someone in to the police is a right, not an obligation, of the victim of harassment. The implication of Brooks's "moral taint" is that sexual harassment should be pushed into the criminal system exclusively, or else give rise to a civil payment only upon a jury/court verdict. This would make it harder to receive private remedy for sexual claims (and maybe other potentially criminal claims), than for other tort claims for physical or emotional injury.

And that turns the whole thing around: sexual or criminal claims become legally disfavored because they are embarrassing to the accuser and/or the accused. The implied recommendation: let's make it harder to pursue one remedy for sexual harassment, so that only the one true remedy may be pursued, even if the actual victim doesn't want the true remedy.