By Rod Van Mechelen
Standard. Stability, general recognition, and conformity to established practice. -- Black's Law Dictionary
Picture this: Late one night you're driving home from work. Rush-hour is over, there's relatively little traffic on the freeway, and everyone is cruising along at 55 miles per hour when a State trooper pulls you over and cites you for speeding. Is this some kind of joke, you wonder? So you go to court:
"You're charged with doing 55 in a pink Cadillac," the magistrate growls. "How do you plead?"
Clearly, were our traffic laws determined and enforced so capriciously, we'd never stand for it. We expect our laws to be consistent, unbiased, and objective. This is one of the characteristics that distinguishes our society from the monarchies of old, when legal infractions could occur ex post facto.
"I plead insanity, you're honor."
"Insanity is not a permissible plea in traffic court," he glowered, "another wise crack like that and I'll cite you for contempt!"
"But this whole thing is insane! The speed limit is 55, road conditions were clear, I was doing 55, everyone else was doing 55, why pick on me?"
"Oh, didn't you know," rumbles the magistrate, "under the reasonable State Trooper standard, we now leave it up to our individual troopers to decide the speed limit for each individual driver. In your case, Officer Smith, the trooper who pulled you over, had just come from an accident where a man in a pink Cadillac just like yours lost control of his vehicle." Shaking his head, the grizzled magistrate sighs. "Killed himself, but not before jumping a guard rail and putting two other people in the hospital. Tied up traffic for hours," he tsk's, "what a mess."
A look of consternation crosses your face. "That's really too bad, but what does it have to do with me?"
"Everyone knows," he harumphs, "that drivers of pink Cadillacs can be eccentric. In her frame of mind at the time, Officer Smith felt no one driving a pink Cadillac should be allowed to exceed 40 MPH. You exceeded her speed limit for pink Cadillacs by 15 MPH." He looks down at you, disapproval furrowing his brow. "Now, are you ready to pay the fine, or would you rather do jail time?"
"But, this is preposterous!" you sputter.
"Thirty days!" the magistrate bellows with a resounding bang of his gavel. "Next case!"
Long ago, a person could do a thing every day until it became a crime. On the day it became a crime, he stopped doing it and abided by the new law. Nevertheless, the king tries and convicts him for having broken the law before there was a law. This practice made an act a crime ex post facto, or after the fact. Ex post facto laws are unconstitutional in the United States. (Black's Law Dictionary, Sixth Edition)
Ex Post Facto Law
In our society, we expect crime to be knowable. That is, we expect to be able to know ahead of time whether a given act is illegal or not, and we would never tolerate anything as subjective as the scenario described above. Yet the reasonable woman standard defines behaviors as creating hostile environment sexual harassment ex post facto. In other words, we can't really know if a given behavior will be construed as sexual harassment until after the fact. The only thing we can know for sure is that the best way to stay out of trouble is to act as though members of the opposite sex are asexual aristocrats who are unapproachable, unpredictable, and volatile. That's insane, but the subjective, ex post facto nature of the reasonable woman standard makes it a reasonable precaution.
This is not to knock the concept of general legal standards -- they are necessary because it's almost impossible for the Courts and legislatures to foresee every situation possible and pass laws to address them all. But such standards must be universal -- a law or legal standard that "depends" on gender is just as oppressive and discriminatory as a "reasonable white person" standard, to differentiate between the rights and privileges accorded to each race, would be. Thus, the reasonable woman standard is sexist and should be replaced with an objective and generic reasonable victim standard.
Certainly, if a man threatens to harm a woman if she refuses to date him, or if a woman threatens to harm a man if he refuses to have sex with her, these should be considered crimes because the initiation of the use of force should be treated as a crime and we should neither tolerate nor condone criminal behaviors. But sometime-prohibition of ill-defined behaviors is not only ex post facto law in effect, but when enforced on no other basis than the gender of the "perpetrator," is also discriminatory. What we need and must demand, therefore, is unbiased objectivity.
If it is sometimes a crime to ask a woman out for a date, or for men to admire female beauty, then we must demand that these always be considered crimes. Ludicrous, but to be fair and unbiased, women must also be subject to a similar, but uniquely male reasonable man standard. Either that, or it must never be a crime for men to admire women, ask for dates, and treat women like equals.
To be objective and unbiased, a reasonable victim standard must apply to everyone regardless of gender, and the "victim" should be able to prove he or she had reasonable cause to feel victimized. Thus, a woman couldn't charge hostile environment sexual harassment simply because the wrong man responded to her sexual advertising (makeup, sensuality-enhancing clothing, and flirtatious behaviors) and asked her for a date. Similarly, a man could not be charged for doing what it is okay for a woman to do. That is, if it is okay for a woman to compliment a man or another woman, then it should be okay for men, too. Everybody should have equal rights; the Law should be gender-neutral.
Finally, the reasonable victim standard should depend on objective external conditions, and not on the subjective reality of the alleged victim. This may violate the principles of victim ethics favored in American law today, but victim ethics are the ethics of domination in disguise.
Justice is the principle that attributes to every act all the consequences of that act. In absolute terms, therefore, if a man does something that pushes a woman's irrational buttons, then that is one of the consequences of his act and, under the principles of justice, he is accountable. In one sense, therefore, we might laud pop-feminists as champions of justice were they not so one-sided about it (they oppose the idea of holding women accountable for pushing men's buttons). But pop-feminist prejudice aside, a large and complex society cannot function if we try to protect everybody from having their irrational buttons pushed. Hence, the doctrine of fairness, as embodied in the American Constitution provides the leeway necessary for all of us to more or less get along. Ideally, this means the principle of justice is concerned only with objective conditions, as epitomized by the children's chant, "sticks and stones may break my bones, but words will never hurt me."
Objectively, therefore, where there is not a general prohibition against publicly acceptable poster art on office walls, if a man hangs a poster of a Cosmo magazine cover in his office, he is not responsible for how anyone else feels about it. If a female coworker feels the poster creates a hostile environment, he is not responsible for her misogyny -- that's her problem, not his, and she would probably benefit more from seeking professional help than from blaming her irrational feelings on him.
Hogan's r-right whin he says: "Justice is blind." Blind she is, an' deef an' dumb an' has a wooden leg." - Peter Dunne Finley, 1867 to 1936>
Justice should be blind to gender, race, political affiliations, everything except the individual's fundamental humanity. Nothing else should matter. There is a difference, however, between justice and law. Law cannot be blind else, for example, we'd be trying to enforce American law on the entire world. (Some might say we already are, but that's not the issue, here.) Consequently, the best we can require of our law is that it be utterly fair.
An objective, generic reasonable victim standard is the only standard that would be fair. What we have in the dichotomized standard (one for women, one for men), however, is less a true standard than pliable public opinion codified into law. As it is presently politically correct to assume men are villains and women are victims, this guarantees the standard will be prejudiced against men because Justice is no longer blind, but biased.
The "woman as victim/man as villain" dichotomy has been promoted in the media for so many years that most writers, reporters, broadcasters, politicians and jurists don't see this bias. Thus, as all men can be victims of this prejudice, we must all work together to demonstrate the need for an objective, generic reasonable victim standard.
We cannot do this alone: if a few men lobby for a generic standard, and many women lobby for unique standards for women, then all men will certainly lose. Therefore, we must persuade women to help us, and the best way to do that is to show them how unreasonable the reasonable woman/man standard is. We can do that by refusing to allow the reasonable man standard to be the bastard child of the reasonable woman standard, and demand the right for men to define the uniquely male reasonable man standard for ourselves. But how can we do this? By taking our fight into the courts and suing?
In my case, the EEOC did grant me notice of right to "pursue the matter further by filing suit against the Respondent named in the charge in Federal District Court within 90 days of the Charging Party's (that's me) receipt of this letter." But when they've already decided you're the villain, it's almost impossible to prove you've been victimized. What's more, this entire affair rendered me virtually unemployable. Fighting the "good ol' girl network" in human resource management and a multi-billion dollar corporation when you're trying to figure out where your next meal will come from is more than most of us can handle on our own.
What we must do is organize. First, men who have been victimized must file claims with the EEOC. This is probably better than filing a grievance with your employer's human resource department because, if you file with the EEOC first, then the Federal government is supposed to protect you from retaliation.
This is a course of action all men can take, regardless of whether they've been branded, themselves, as villains. Men who start out from a position of presumed innocence, however, obviously have a better chance of succeeding.
Men need to begin filing hostile environment sexual harassment complaints with the EEOC. If you work in an environment where women distract you from your work with make-up, perfumes, clothing and behaviors that enhance and accentuate their sensuality, then you have a justifiable complaint. Remember, you can be charged with hostile environment sexual harassment for responding to these sexual signals. Or even if a female coworker thinks you're responding! So shouldn't you have the right to a work-environment free from female behaviors that may get you into trouble? In Feminism Unmodified, Catharine MacKinnon asserts that "a major part of the harm of sexual harassment is the public and private sexualization of a woman against her will." What about a woman who forces her self-sexualization upon her male coworkers against their will? Is there no harm, here?
The EEOC is there to protect your rights against, among other things, sex discrimination. And if allowing women to create a hostile environment by broadcasting their self-sexualization at work while holding men responsible for the consequences of that self-sexualization isn't sex discrimination, then what is?
Men who have been unreasonably charged with and punished for hostile environment sexual harassment should not do what I did. I made a big mistake by trying to reason with the people in Human Resources. A much wiser course of action would have been to go directly to the EEOC.
Another option, and one already used with some success, is to sue the employer and your accuser(s) for wrongful discharge, defamation of character and financial devastation. (Sexual Harassment: Know Your Rights!, by Attorneys Martin Eskenazi and David Gallen, p 76) As Rita Risser notes in Managing Within The Law, "the courts say the only remedy is for the person who was falsely accused to sue the accuser for defamation." (Managing Within The Law, Rita Risser, 1993, p 3-28) We do have recourse.
As men, we must support one another in this effort. At every level of government, women have offices of women's rights that work to promote laws and policies that either legitimately protect women's rights, or attack men. There's nothing wrong with protecting women's rights, but we must respond to their specious attacks upon men by organizing offices to protect men's rights, and establishing funds to finance their efforts.
When men begin standing up for their own rights to an environment free from women's displays of sexual power, women will begin to understand the present plight of men. They will realize that pop-feminists may have taken this too far. When women realize they can legitimately be judged guilty of sexual harassment for wearing makeup and provocative dress to work, then most will better understand the need to renew our national commitment to a Justice that is blind.
Rod Van Mechelen