Speaking Truth to Power - Anita Hill [75]
Hatch’s statement harks back to an oft-quoted and equally erroneous statement made by an English judge who said that an accusation of rape is easy to make but difficult to disprove. A litany of facts about the crime of rape shows the total lack of merit in that claim. Many women who are victims of rape or sexual assault do not even discuss the matter with close friends because of the social stigma attached to being raped. Only one of ten rapes that occurs in this country is reported to law officials, making rape the most underreported crime. Convictions in rape trials are the most difficult to obtain of all criminal convictions, and sentencings for sex crimes the most lenient among sentencing for violent crimes. In 1995 a Pennsylvania court found that the prosecution had not proved the elements of rape, though it successfully showed that an intruder had broken into the complainant’s home, thrown her to the bed, and assaulted her. The complainant resisted throughout, constantly saying, “No.” The court based its findings of insufficient evidence on the fact that the assailant did not force the act upon her with a gun or a knife. In 1990 the jury acquitted two of five defendants in a notorious New York case involving the sexual assault of a woman whose assailants drugged her during the encounter. One juror, polled after the verdict, explained that his vote for acquittal was based on his belief that the nineteen-year-old plaintiff was a “scorned woman.”
Sexual harassment is also an underreported offense. As I have said, only 3 percent of the incidents of sexual harassment culminate in a formal complaint being filed against the harasser. And by most accounts, employers rarely sanction those who are found to have harassed an employee or colleague. The same kinds of explanations offered for dismissals in rape cases are offered to dismiss sexual harassment claims.
Hatch’s complaint described the law as overly broad. Senator Specter erred in the opposite direction, basing his decision to ignore my claim partly on the mistaken assumption that sexual harassment law governed only touching or threats. Under Specter’s reasoning the only time sexual harassment is cognizable is when it includes sexual assault or battery. Since 1986, when the Supreme Court decided its first sexual harassment case, all courts have recognized not only the “quid pro quo” form of sexual harassment but the “hostile environment” form as well. Quid pro quo harassment is the equivalent of sexual extortion. A supervisor informs an employee that retaining her job or gaining promotion or raises is contingent on complying with sexual requests. Hostile environment harassment does not require the explicit threat of being dismissed, but can exist where the supervisor’s or fellow employees’ persistent unwanted sexual requests, comments, suggestions, or other conduct pervades the workplace, making it antagonistic or otherwise hostile. The law has never required unwanted touching as a prerequisite to a claim of sexual harassment. And underlying the recognition of the hostile environment form of sexual harassment is the assumption that certain workplace conditions can produce a level of intimidation even though the harasser does not assault the target or threaten retaliation for not acceding to sexual requests.
Whereas Hatch’s overstatement lumps false and legitimate claims together in the minds of potential claimants and the public, Specter erroneously elevates the burden in a sexual harassment complaint to some tortious or criminal act, so that individuals who have not experienced physical contact or outright coercion at the hands of their harassers may wrongly conclude that they have no cause of action. Both statements are unfortunate reflections of the senators’ ignorance, passed into the public