Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P18 pot

decision in Schmerber v. California (384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 [1966]), that a routine blood alcohol test is not a substantial intrusion into one’s bodily integrity. Reasoning by analogy, most courts have held that a blood test for AIDS, where necessary to further an important government interest in the health and safety of the victim, is constitutional. Sexual Psychopath Legislation Approximately 20 states have statutes that address dangerous sex offenders and sexual psychopaths. These statutes are designed to protect public safety by removing habitual sex offenders from society for extended periods of time. Criminal defendants treated differently from others based on their classification as sexual psychopaths have challenged these laws, arguing that they violate the equal protection and the due process clauses, but the laws have withstood such challenges (Kansas v Hendricks, 521 U.S. 346 [1997]; Seling v. Young, 531 U.S. 250 [2001]). Do Offender Laws Protect Public Safety or Invade Privacy? T he enactment of state and federal sex offender notification and registration laws came at a fast pace in the 1990s and has continued through the first decade of the 2000s. Legislators and their constituents have endorsed notification and registration as simple but effective ways of protecting public safety. Even though support for such laws has been overwhelming, concerns have been raised by some legal commentators that these laws invade the privacy of released sex offenders and make it difficult for them to rebuild their lives. Defenders of these laws note that requiring released offenders to register with the police is an easy way for police to keep tabs on potentially dangerous persons. With the release of large num- bers of sex offenders into the general population, public safety demands that the police know where these potentially dangerous persons live. In the event of a new sex offense, the police have the ability to round up possible suspects quickly. Registration also gives police in nearby towns and cities the opportunity to share information on suspects and to help find suspects for questioning. The law’s proponents believe, however, that notification is the most important element. Prior to the passage of Megan’s Law in New Jersey, as well as similar laws throughout the United States, citizens did not know when a released sex offender moved in next door or down the block. Because certain sex offenders are likely to commit criminal acts again, no notification means that offenders can use their anonymity to help conceal their criminal activity. Community notification laws rob the released offender of anonymity by letting neighbors know the offender’s criminal history and his place of residence. Public safety is enhanced, and, armed with this information, neighbors can be on guard and assist in the monitoring of the released offender’s activities. Communities also use notification to prevent a released offender from moving into the neighborhood. Once a public hearing is held and information is distributed, landlords often become reluc- tant to rent housing to a person who makes community members apprehen- sive. Even if the released offender does move into the community, the person will be isolated from his neighbors. Commu- nities are, therefore, empowered to take control of their neighborhoods and assert their right to safe and secure homes. Defenders of these laws agree that registration and notification do have an impact on the lives of released sex offenders. However, they believe that society as a whole should have more rights than an individual sex offender. Felons, for example, are not entitled to vote or possess firearms and can suffer other civil disabilities because of their criminal convictions. Registration and notification are legitimate civil disabilities that flow from the underlying criminal act. Public safety mandates that such laws be used effectively. Critics of registration and notification are troubled by the departure these laws take from the traditional belief that once individuals serve a criminal sentence, they have paid their debt to society and should be allowed to reenter society without significant restrictions on privacy or liberty. According to the critics, released offenders share the same expec- tations of privacy as other citizens. Though some courts have acknowledged that notification laws infringe upon sex offenders’ privacy interest by disseminat- ing in a packaged form, various pieces of the registrant’s personal history, the state’s strong interest in protecting its citizens through public disclosure substantially outweighs the sex offenders’ privacy interest. Critics contend that such rulings are a slippery slope, for they provide future legislatures with the opportunity to broaden the types of crimes that are subject to notification. Society will always have a strong interest GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 158 SEX OFFENSES These statutes require that the court must specifically find that the sex offender suffers from mental illness that leads to sexually deviant behavior and that the behavior is likely to continue in the future, in order to classify the offender as a sexual psychopath. These statutes also permit the state to retain custody of the sexual psychopath (sexually dangerous person) until he or she is cured of the mental illness. In effect, this allows the state to impose an indeterminate, and often lifetime, sentence. Sex Offender Registration and Community Notification Because of growing public concern, since the 1980s, over RECIDIVISM (repeated offenses) among sexual offenders, all states have enacted sex offender registration acts. In 1994, Congress passed legislation that required states to enact such laws in order to receive certain federal funding (42 U.S.C.A. § 14071). Although these laws vary in scope and effect, they share the common goal of protecting the in protecting its citizens, thereby allowing more intrusive government actions over an individuals’ right to privacy. Critics also believe registration and notification laws constitute cruel and unusual punishments, which are banned by the EIGHTH AMENDMENT. These laws are penal, because they subject the released offender to additional punishment. Defen- ders of the laws may claim that notification is merely a way to provide information to the public, but the impact on released offenders clearly can feel like punishment. Critics note that convicted sex offenders now have difficulty finding a place to live. Communities often use this information to prohibit entry or to try to remove the individuals from their sur- roundings. Offenders who do move into the community may be subjected to taunts and threats, and their property is sometimes vandalized. It is unfair and uncon- stitutional, the critics allege, to subject individuals who have served the sentence of the court to another layer of punishment that is indefinite in length or scope. Opponents further claim that notification has a detrimental effect on rehabilitating a released offender. Public notification may have improved personal safety, but it has also created public hysteria. Sex offenders are viewed as modern-day lepers, increasing the difficulty for them to find and retain jobs. For those released offenders who truly want to make a new life, notification can make such an effort almost impossible. In addition, critics argue that notification laws undermine a community by promoting fear. Notification may inflame passions and sometimes lead to mob rule. Instead of providing rehabilitation or deterrence, notification shames convicted offenders in a way that registration and other civil disabilities do not. Though such laws satisfy a public demand that officials crack down on offenders, critics remain skeptical as to whether such laws truly promote public safety enough to justify their intrusiveness. The criticisms of Megan’s laws ulti- mately led to two cases that reached the U.S. SUPREME COURT in 2003. In Smith v. Doe I (538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 [2003]), the Court upheld Alaska’s version of Megan’s Law against a challenge that this law constitutes an ex post facto law in violation of the U.S. Constitution. The same day, the Court in Connecticut Department of Public Safety v. Doe (538 U.S. 1, 123 S. Ct. 1160, 155 L. Ed. 2d 98 [2003]) held that Connecticut’s version of Megan’s Law does not deprive sex offenders of procedural DUE PROCESS OF LAW. In Smith, the Court reviewed an argument that because Alaska’s sex offender law applies to sex offenders who committed acts prior to the enactment of the statute, the law inflicted retroactive punishment and thus constituted an ex post facto law. In a 6-3 opinion written by Justice ANTHONY M. KENNEDY, the Court rejected the argument, finding that the law was designed to protect the public from sex offenders rather than to punish sex offenders them- selves.UndertheSupremeCourt’sdoc- trine governing the ex post facto clause, if a law establishes civil proceedings that are not punitive in nature, then the law does not violate the Constitution even if offenders convicted prior to the statute must adhere to certain regulatory consequences, such as registering as sex offenders. Since the Court found that Alaska’slegislature intended to establish a civil proceeding rather than to impose punishment the law was constitutional. In Connecticut Department of Public Safety v. Doe, a unanimous Court rejected an argument that sex offenders were denied procedural due process because they were not afforded an opportunity to determine whether they were dangerous to the public. Chief Justice WILLIAM REHNQUIST , writing for the Court, found that the sex offenders were not entitled to a hearing about their dangerousness because the sex offenders’ propensity for danger was not an issue of consequence under Connecticut’s law. Because the law applies to all convicted sex offenders, rather than only those who are considered dangerous, dangerousness was not a material under the state statute. Accord- ingly, Connecticut’sMegan’s Law does not deprive the offenders of any procedural due process rights. FURTHER READINGS Fodor, Margie Druss. 2001. Megan's Law: Protection or Privacy? Hillside, N.J.: Enslow. Schwartz, Martin A. 2003. “Supreme Court Rejects Megan’s Law Challenges.” New York Law Journal (April 15). CROSS REFERENCES Child Abuse; Equal Protection; Megan's Law; Substantive Due Process. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SEX OFFENSES 159 public by requiring repeat sex offenders to register their names and addresses with local law enforcement officials. Some statutes allow the public to have access to this information. Other statutes, commonly called community notification laws, mandate that all residents in a certain geographic area be notified before a convicted sex offender moves into their neighborhood. There have been numerous constitutional challenges to sex offender registration acts; however, most courts have found no constitutional violations. Specific attacks that have been unsuccessfully made include the arguments that the statu tes constitute cruel and unusual punishment, they are ex post facto laws (laws that retroactively punish behavior), they are bills of ATTAINDER (acts of the legislature to impose punishment without a court trial), they constitute DOUBLE JEOPARDY (multiple prosecu- tions for the same offense), or they violate the offender’s right to privacy. FURTHER READINGS Cocca, Carolyn E. 2004. Jailbait: The Politics of Statutory Rape Laws in the United States. Albany: State Univ. of New York Press. Holmes, Ronald M., and Stephen T. Holmes, eds. 2002. Current Perspectives on Sex Crimes. Thousand Oaks, Calif.: Sage. “In Ruling on Executions, a Factual Flaw.” July 2, 2008. NYTimes.com. Available online at www.nytimes.com/ 2008/07/02/w ashington/02scotus.html (accessed September 22, 2009). “Justices Reject Death Penalty for Child Rapists.” June 26, 2008. USAToday.com. Available online at www.usatoday. com/ news/Washington/2008-06-05 -scotus-child-rape- N.htm (accessed September 22, 2009). Morosco, B. Anthony. 1996. The Prosecution and Defense of Sex Crimes. New York: Bender. Prentky, R. A., and Ann Wolbert Burgess. 2000. Forensic Management of Sexual Offenders. New York: Kluwer Academic/Plenum. Wagner, Kellie. 2002. “U.S. Supreme Court Takes Up Megan’s Law.” Connecticut Law Tribune (May 30). Wright, Richard. 2009. Sex Offender Laws: Failed Policies, New Directions. New York: Springer. CROSS REFERENCES Child Molestation; Criminal Law; Criminal Procedure; Family Law; Gay and Lesbian Rights; Sexual Abuse; Victims’ Rights. SEXUAL ABUSE Illegal sex acts performed against a minor by a parent, guardian, relative, or acquaintance. Sexual abuse is a general term for any type of sexual activity inflicted on a child by someone with whom the child is acquainted. It is considered an especially heinous crime because the abuser occupies a position of trust. Until the 1970s the prevalence of sexual abuse was seriously underestimated. Growing awareness of the problem led legislatures to enact reporting requirements, which mandate that any professional person (doctor, nurse, teacher, social worker) who knows or has reason to believe that a child is being abused report this information to the local WELFARE agency or law enforcement department. Statistics vary widely about the level of sexual abuse, but most researchers agree that it occurs at a higher rate than previously believed. Experts on the subject estimate that more than 130,000 children per year are sexually abused in the United States. Perpetrators of sexual abuse are prosecuted under state CRIMINAL LAW statutes that have been toughened for sexual assaults on minors. The prosecution of reported sexual abuse has required children to testify in court about the abuse. Children are often unwilling to testify against the abuser, who may be a family member and may exert control over their victim. To relieve these pressures, courts have allowed the use of closed-circuit television to protect the child witness from the trauma of testifying in court before the defendant, expanded the HEARSAY evidence exception to allow testimony about what the child said if the child lacks a motive to lie or if the child uses sexual terminology unexpected of a child, and made rules that suspended the STATUTE OF LIMITATIONS until the abusive conduct is discovered. During the 1980s a rash of sexual abuse cases involving day care centers drew national attention. The McMartin preschool case in Manhattan Beach, California, which began in 1984, accused a group of day care employees of sexual abuse and bizarre rituals of animal sacrifice. Though none of the defendants was ever convicted, similar allegations around the United States resulted in 113 convictions. A difference of opinion exists within the legal and medical communities over the truthful- ness of child witness testimony in sexual abuse cases. Prosecutors and some health professionals argue that children do not lie. Defense attorneys and social researchers contend that faulty interviewing by parents, psychologists, and law enforcement can lead children to make up stories. Leading questions and demands that a child GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 160 SEXUAL ABUSE reveal abuse can press the child into making false statements in order to please the questioner. The debate over child witnesses has led many law enforcement agencies to develop standard investigatory protocols that seek to prevent contamination of the child’s testimony. Interviews are routinely videotaped to document the interview process. Apart from criminal remedies, in the 1980s CHILD ABUSE victims gained the ability to sue their abusers for damages. Before that time, civil remedies were available only for child victims who filed claims soon after attaining the age of majority. State courts and legislatures accepted the concept of repressed memory, in which traumatic episodes are repressed by the victim for many years. As of 2003, in more than 23 states, adults who “recover” their memories of childhood sexual abuse, either spontaneously or through psychiatric and psychological counseling, may bring a civil lawsuit against the perpetrator. These states have rewritten their laws to start the statute of limitations from the time the victim knows or has reason to know that sexual abuse occurred. During the 1980s and 1990s, many lawsuits were filed using these new laws. Adults successfully sued a number of Roman Catholic priests for sexual abuse that the victims had endured many years before. Health professionals argued that the victims needed the lawsuits as much for therapeutic as legal reasons. Confronting the abuser and holding the abuser accountable for the actions is a significant step for the victim, who often feels shame, guilt, and responsibility for the abuse. However, a controversy arose over the vali- dity of recovered memories. The dispute centers on memories that are coaxed or brought forth through the efforts of therapists. Some experts in law and mental health question the veracity of these memories and challenge their use as the evidentiary basis for lawsuits over conduct that allegedly occurred years, and sometimes decades, in the past. They contend that these are “implanted memories,” brought about by hyp- nosis, truth serums, and therapists’ suggestive remarks. They are also troubled that therapists may be allowed to testify as expert witnesses, when there is no SCIENTIFIC EVIDENCE to support their theories regarding recovered memories. A 1994 California lawsuit by Gary Ramona was the first case in the United States in which an alleged abuser won a large damages award against the therapist who had treated his child. Ramona’s dau ghter Holly had filed suit, accus- ing her father of sexually molesting her when she was a child. As a result of the lawsuit and the charges, Ramona’s wife divorced him and he lost his high-paying job. He argued that Holly’s recollections were the result of the psychiatrist’s giving her the hypnotic drug sodium amytal and then eliciting from her confabulations, or false but cohere nt memories spliced together from true events, that convinced Holly that she had been abused by her father. The jury agreed with the father, awarding him $500,000. The jury concluded that the recovered memories were unreliable and that the methods used to elicit them were improper. The issue of sexual abuse perpetrated by Roman Catholic priests generated substantial interest beginning in 2000 when the Archdio- cese of Portland, Oregon agreed to pay an undisclosed amount to 22 plaintiffs who alleged that they had been abused by Father Maurice Grammond. The victims, ranging in age from 39 to 71, initially sued for $44 million. They claimed that the then 80-year-old Grammond had abused them and that neither Portland’s archbishop nor the archdiocese took any action, such as warning parishioners, even though there had been complaints about the priest’sbehavior. Child Victims of Sexual Abuse, 2007 SOURCE: U.S. Department of Health and Human Services, Administration for Children & Families, Child Maltreatment 2007. 3 years old or younger 6.3% Unknown or missing 0.7% 4–7 years old 23.3% 8–11 years old 23.8% 12–15 years old 35.2% 16–17 years old 10.8% ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SEXUAL ABUSE 161 Child Testimony in Day Care Center Sexual Abuse Cases B etween 1983 and 1991, a series of cases i nvolvin g al le gations of sexual abuse by day care center workers drew national attention. During this period, investigations of suspected sexual abuse of preschool children by their teachers took place in more than 100 U.S. cities. Many persons were convicted of crimes, but others were either acquitted or had their convictions overturned on appeal. The key issue in these cases was whether the children involved had told the truth or whether their testimony had been tainted by the way they were interviewed by parents, social workers, and psychologists. Though this type of multiple victim, multiple offender sexual abuse charge has disappeared, the issue of the credibility of children discussing sexual matters and sexual abuse remains a charged issue. The most famous case involved the McMartin preschool in Manhattan Beach, California. In 1984 authorities charged Virginia McMartin, age 76; her daughter Peggy McMartin Buckey; her grandson Raymond Buckey; a granddaughter; and three f emale te achers w ith sexually abusing 120 children. T he children reported v iole nt rituals where rabbits were m utilated and the children were forced to to uch corpses. Eventually prosecutors dropped charges for lack of evidence against everyone except PeggyBuckeyandhersonRaymond.They went on trial in 1987. In January 1990, after the longest (two-and-a-half years) and most expen- sive ($15 million) criminal trial in U.S. history, Peggy and Raymond Buckey were acquitted on 52 counts of child molestation. The jury deadlocked on 12 counts of molestation against Raymond Buckey and on one count of conspiracy against both defendants. The charge against Peggy Buckey was dismissed, but Raymond was retried on 8 of the 13 counts. In July 1990 his second trial ended in a mistrial, and the case was finally dismissed. The McMartin preschool case revealed troubling questions about the way the investigation had been conducted and how evidence had been obtained from young children. The initial allega- tion of abuse was made by a mother later diagnosed as paranoid schizophrenic. She accused Raymond Buckey of molesting her son. The police investigated and declined to file charges because of lack of evidence. The Manhattan police chief then sent a letter to the 200 parents of past or present McMartin preschool students and alleged that Buckey may have molested their children. Parents were urged to question their children about any sexual abuse. The letter caused a panic. Hundreds of children were given medical exams and interviewed by a group of psychologists at a counseling center. During these interviews, children were asked leading and suggestive questions and were rewarded for giving the “right” answers. Children reported bizarre events, including being taken into subterranean passages at the school where animal sacrifices were performed. No passages nor any traces of animal sacrifices were found at the school. Several children reported that they were taken on airplanes and molested. At trial the jurors had difficulty dis- tinguishing between fact and f ant asy in th e children's accounts. The prosecution argued that children seldom lie about abus e butthattheyareoftenreluctanttodisclose what has h appened to t hem. Therefore, the prosecution said, a therapist interviewing a child will often use suggestive questioning, prompting, and manipulation to encourage the child to disclose the truth about sexual abuse. As for the bizarre tales, they were simply the children's way of dealing with what had happened to t hem. The j urors did not accept t hese explanations, expressing concern that t he children's te stimony h ad been influence d by adults. The videotapes of the interviews showed therapists asking leading questions and the children appear- ing to try to provide answers that would please the interviewers. Prosecutors and many therapists contend that children rarely lie about sexual abuse and that the implanting of false memories through leading and suggestive questions is unlikely. They worry that refusing to believe children's testimony victimizes the children a second time and sends a message that society does not want to hear about sexual abuse. Others are more skeptical. About 20 studies have shown that suggestive questioning about events that never happened can contaminate young children's memories with fantasies. When police, social workers, therapists, and prosecutors conduct multiple interviews, details they provide in their questions and statements are likely to find their way into the statements of children. Children will use their imagination and confabulate stories that are richly detailed but are a mix of fact and fantasy. This is not to say that children are not to be believed. Children rarely lie when they spontaneously disclose abuse on their own or when a person seeks the complete story with the least probing or leading yes-no questions. The McMartin preschool outcome has forced investigators to learn better ways of asking children questions. Many interviewers are trained to gain a child's trust, evaluate the child's ability to remember and give details of past events, and let the child tell what happened in her own words. Interviews are generally videotaped to allow both the prosecution and the defense to evaluate the investi- gator's methods. FURTHER READINGS DeBenedictis, Don J. 1990. “McMartin Pre- school’s Lessons: Abuse Case Plagued by Botched Investigation, Too Many Counts.” ABA Journal 76 (April). Goldberg, Marion Zenn. 1990. “Child Wit- nesses: Lessons Learned from the McMartin Trials.” Trial 26 (October). Moss, Debra Cassens. 1987. “Are the Children Lying?” ABA Journal 73 (May). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 162 SEXUAL ABUSE The archdiocese apologized publicly and agreed to head a task force that would examine how abuse complaints were being handled and how to make the process work better. A little more than a year later, in February 2002, a former priest in the Boston archdiocese, John Geoghan, was sentenced to up to 10 years in prison for molest ing a 10-year-old boy. Geoghan, who had been defrocked in 1998, allegedly abused 130 children over a 30-year period. The Geoghan case opened up a much larger issue when it was revealed that the Boston archdiocese had allowed Geoghan to remain in positions that gave him access to children. Boston’s cardinal, Bernard F. Law, was singled out because he was responsible for allowing Geoghan to keep ministering to children. Law said that he knew of Geoghan’s problems and believed that he had been successfully treated for them. When the case of another Boston priest, Paul Shanley, came to light in April—and when the press found out that Cardinal Law had given Shanley a recommendation when he transferred to a west coast diocese even though he knew about Shanley’s proclivities—the archdiocese of Boston was thrown into turmoil. To add to the difficulty, the archdiocese had agreed to settle with several of Geoghan’s victims but the number of alleged victims continued to increase. The archdiocese eventually said that it had to back out of the settlement agreement due to lack of adequate funds. Facing increasing outrage and no longer able to carry out his duties effectively, Law gave his resigna- tion to Pope John Paul II in December 2002. In August 2003 John Geoghan was killed in prison by a fellow prison inmate. FURTHER READINGS Austin, Terry. 2006. Unfair Advantage: Sexual Abuse by Psychotherapists, Priests, and Police. Bloomington, IN: Trafford Publishing. Berry, Jason, and Andrew M. Greeley. 2000. Lead Us Not into Temptation: Catholic Priests and the Sexual Abuse of Children. Champagne, IL: Univ. of Illinois Press. Conte, Jon R., ed. 2002. Critical Issues in Child Sexual Abuse: Historical, Legal, and Psychological Perspectives. Thou- sand Oaks, CA: Sage. Kuehnle, Kathryn, and Leslie Drozd, eds. 2006. Child Custody Litigation: Allegations of Child Sexual Abuse. New York: Haworth Press, Inc. Lazo, Joy. 1995. “True or False: Expert Testimony on Repressed Memory.” Loyola of Los Angeles Law Review 28. Mason, Mary Ann. 1995. “The Child Sex Abuse Syndrome.” Psychology, Public Policy, and Law 1. Wazir, Rekha, and Nico van Oudenhoven. 1998. Child Sexual Abuse: What Can Governments Do? A Compara- tive Investigation into Policy Instruments Used in Belgium, Britain, Germany, the Netherlands and Norway. Boston: Kluwer Law International. CROSS REFERENCES Children’s Rights; Infants. SEXUAL HARASSMENT Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that tends to create a hostile or offensive work environment. Sexual harassment is a form of SEX DISCRIMI- NATION that occurs in the workplace . Persons who are the victims of sexual harassment may sue under Title VII of the CIVIL RIGHTS Act of 1964 (42 U.S.C.A. § 2000e et seq.), which prohibits sex DISCRIMINATION in the workplace. The federal courts did not recognize sexual harassment as a form of sex discrimination until the 1970s, because the problem originally was perceived as isolated incidents of flirtation in the workplace. Employers are now aware that they can be sued by the victims of workplace sexual harassment. The accusations of sexual harassment made by ANITA F . HILL against Supreme Court Justice CLARENCE THOMAS during his 1991 confirmation hearings also raised societal con- sciousness about this issue. Courts and employers generally use the definition of sexual harassment contained in the guidelines of the U.S. EQUAL EMPLOYMENT OPPORTU- NITY COMMISSION (EEOC). This language has also formed the basis for most state laws prohibiting sexual harassment. The guidelines state: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when 1. submission to such conduct i s made either explicitly or implicitly a term or condition of an individual’s employment, 2. submission to or rejec tion of such conduct by an individual is used as the basis for employment decisions affe cting such individua ls, or 3. such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating , hosti le, or offensi ve working environment. (29 C.F.R. § 1604.11 [1980]). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SEXUAL HARASSMENT 163 A key part of the definition is the use of the word unwelcome. Unwelcome or uninvited conduct or communication of a sexual nature is prohibited; welcome or invited actions or words are not unlawful. Sexual or romantic interaction between consenting people at work may be offensive to observers or may violate company policy, but it is not sexual harassment. The courts have generally concluded that a victim need not say or do a particular thing to indicate unwelcomeness. Instead, a court will review all of the circumstances to determine whether it was reasonably clear to the alleged harasser that the conduct was unwelcome. The courts have recognized that victims may be afraid to express their discomfort if the harasser is their boss or is physically intimidating. Victims may be coerced into going along with sexual talk or activities because they believe they will be punished or fired if they protest. Consent can be given to a relationship and then withdrawn when the relationship ends. Once it is withdrawn, continued romantic or sexual words or actions are not protected by the past relationship and may be sexual harassment. The law prohibits unwelcome “sexual” conduct and words or actions “of a sexual nature.” Some conduct, such as hugging, may be sexual or nonsexual and must be evaluated in context. Sexual harassment may be physical, such as kissing, hugging, pinching, patting, grabbing, blocking the victim’s path, leering or staring, or standing very close to the victim. It may also be verbal, which may be oral or written and could Clarence Thomas and Anita Hill Hearings T he issue of sexual harassment drew national attention during the 1991 Senate hearings on the confirmation of CLARENCE THOMAS to the U.S. Supreme Court. ANITA FAYE HILL, a professor at the University of Oklahoma Law Center, accused Thomas of sexually harassing her when she worked for him at the U.S. Department of Education and the Equal Employment Opportunity Commission (EEOC) between 1981 and 1983. The public disclosure of the allegations resulted in nationally televised hearings before the Senate Judiciary Committee. The hearings, which drew a large national viewing audience, raised questions about Thomas's behavior, Hill's credibility, and the nature of sexual harassment in the workplace. The demeanor of the 12 white male members of the Senate Judiciary Committee and the questions they asked Hill raised the ire of many women's groups, who saw in the senators' behavior an unwillingness to acknowledge the dynamics of sexual harassment. Thomas, then a judge on the U.S. Court of Appeals for the District of Columbia, had been nominated by Presi- dent GEORGE H. W. BUSH to fill the seat vacated by Justice Thurgood Marshall. Thomas's opponents, including many Democrats and interest groups, tried to block his nomination because they did not want Thomas, an outspoken conservative African American, replacing Marshall, an African American and one of the few remaining liberals on the Court. After questioning Thomas at length, the Judi- ciary Committee deadlocked 7–7on whether to recommend the nominee to the full Senate and then sent the nomination to the floor without a recommendation. Nevertheless, it appeared that Thomas would win confirmation by a comfortable, though not necessarily large, margin. Then on October 6, 1991, Anita Hill publicly accused Thomas of sexual harassment. The charges rocked the Senate. Hill had been contacted earlier by Senate staff members, and she told them of her allegations. The Judiciary Committee asked the FEDERAL BUREAU OF INVESTIGATION (FBI) to talk to Hill and Thomas about the allegations. The FBI produced a report that was inconclusive, being largely a matter of “he said, she said.” The allegations would probably never have come to public attention except that Hill's state- ment was leaked to National Public Radio (NPR). Once NPR broke the story, Thomas's confirmation was thrown into doubt. In response, the Judiciary Com- mittee announced that Thomas and Hill would be given a chance to testify before the committee. The Hill-Thomas hearings took place the weekend of October 11th. Hill testified that after she had refused to date Thomas, he had initiated a number of sexually oriented conversations, some of which alluded to pornographic films. She provided vivid details about these conversations, but her credibility was ques- tioned by Thomas supporters who suggested, among other things, that Hill might have fantasized the conversations. Senator Arlen Specter (R-Pa.) interro- gated Hill as if she were a criminal suspect and suggested that she might be charged with perjury. Other senators GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 164 SEXUAL HARASSMENT include requests or demands for dates or sex, sexual jokes, comments about the victim’s body or clothing, whistles, catcalls, or comments or questions about the victim’s or harasser’s social life or sexual life. Sexual harassment may also be visual, such as cartoons, pictures, or objec ts of a sexual nature. The laws against sexual harassment are violated when “submission to such conduct is made either explicitly or implicitly a term or condition of employment.” This language refers to what is sometimes called QUID PRO QUO sexual harassment, in which a victim’s hire, job security, pay, receipt of benefits, or status depends on her or his response to a superior’s sexual overtures, comments, or actions. The quid pro quo may be direct, as when a superior explicitly demands sexual favors and threatens firing if the demands are not met, or it may be indirect, as when a superior suggests that employment success depends on “personality” or “friendship” rather than competence. Sexual harassment also occurs when sexual conduct or communication “unreasonably inter- fer[es] with an individual’s work performance.” Tangible loss of pay, benefits, or the job itself is not req uired for sexual harassment to be claimed and proven. Generally, occurrences must be significant or repeated or both for substantial interference to be established. Same-sex sexual harassment is covered by Title VII. The U.S. Supreme Court, held in Oncale v. Sundowner Offshore Services, Inc., et al., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d. 201 wondered why she had followed Thomas from the Education Department to the EEOC if he had sexually harassed her. She replied that the harassment seem- ingly had ended and that she was uncertain about the future of her job at Education. Thomas forcefully denied all of Hill's allegations and portrayed himself as the victim of a racist attack. According to him, Hill's allegations were “charges that play into racist, bigoted stereotypes.” He reminded the committee that histori- cally, when African American men were lynched, they were almost always accused of sexual misconduct, and he characterized the hearings as a “high- tech lynching.” Thomas's impassioned defen se proved to be effective. It not only disarmed his Democratic opponents on the committee, who in the opinion of many commentators failed to question Thomas effectively, but it also won him sympathy throughout the country. A New York Times/CBS News poll taken October 28, 1991, found that 58 percent of the respondents believed Thomas: only 24 percent believed Hill. The committee also heard from witnesses who said that Hill had discussed the harassment with them during the time she worked for Thomas. Thomas’s supporters produced several men as character references, one of whom alleged that Hill's statements were a product of romantic fantasy. Several women who would have testified that Thomas exhib- ited similar behavior with them either declined to testify after seeing the committee’s grilling of Hillorwerenot calledby the committee. Thomas was confirmed two days after the hearings, on a vote of 52–48, the narrowest margin for a Supreme Court justice since 1888. Thomas’s confirmation did not end the controversy. Some commentators characterized the hearings as a perversion of the process and suggested that Hill's charges should have been aired in closed committee hearings. Others criticized Hill as a pawn of liberal and feminist interest groups that sought to derail Thomas's nomination by any means. Some critics also accused Hill of being an active participant in the move to defeat Thomas; they claimed that she was a Democrat who pretended to be a Republican so as to appear politically impartial. Hill’s defenders were outraged by the committee's treatment of her. They described her plight as typical of women who bring sexual harassment claims. Unless the woman has third-party testimony backing up her charges, the “he said, she said” scenario always favors the man. The senators' questioning of Hill's motivations was also evidence of how men fail to understand sexual harassment. Many of the senators saw her as either a liar, a publicity seeker, or an emotionally disturbed woman who fantasized the alleged incidents. In response, T-shirts appeared that stated “I believe Anita Hill.” There was also concern that Hill's treatment might discourage women from reporting sexual harassment. The Thomas-Hill hearings were a watershed event in the discussion of sexual harassment. FURTHER READINGS Morrison, Toni, ed. 1992. Race-ing Justice, En- gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality. New York: Pantheon. Ragan, Sandra L., et al, eds. 1996. The Lynching of Language: Gender, Politics, and Power in the Hill-Thomas Hearings. Urbana: Univ. of Illinois Press. Siegel, Paul, ed. 1996. Outsiders Looking In: A Communication Perspective on the Hill/ Thomas Hearings. Cresskill, N.J.: Hamp- ton Press. Smitherman, Geneva, ed. 1995. African Amer- ican Women Speak Out on Anita Hill- Clarence Thomas. Detroit: Wayne State Univ. Press. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SEXUAL HARASSMENT 165 (U.S. 1998), that Title VII prohibits sexual harassment even when the harasser and target of harassment are of the same sex. Unreasonable interference can occur between coworkers of equal status as well as between superiors and subordinates. The employer of the coworker may be legally liable for such harassment if the employer knows or should know about it and fails to take timely and appropriate responsive action. The sexual harassment lawsuit filed in 1994 by Paula Jones against President BILL CLINTON highlighted this workplace issue. In 1991 Jones was an employee of the Arkansas Industrial Development Commission, and Clinton was governor of Arkansas. Jones claimed that while working at an official conference at a Little Rock hotel, she was persuaded by a member of the Arkansas state police to visit the governor in a business suite at the hotel. She alleged that Clinton made sexual advances that she rejected. Jones also claimed that because she rejected his advances, her superiors dealt with her in a rude and hostile manner and changed her job duties. Clinton denied the charges and sought to delay the lawsuit until after he left the presi- dency. The Supreme Court rejected this argument in Clinton v. Jones, 520 U.S. 681, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997), and he was forced to defend himself. In 1998 the federal district court dismissed her action, ruling that there was no proof that Jones was emotionally injured or punished in the workplace for rejecting Clinton’s advances. Jones appealed this ruling but agreed to drop her lawsuit in return for $850,000. She also dropped her previous demand that Clinton apologize or make an admission of guilt. The most far-reaching part of the EEOC definition is that dealing with a hostile or offensive working envi ronment. The U.S. Su- preme Court upheld the concept of a hostile work environment as actionable under the 1964 Civil Rights Act in Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 49 (1986). The Court rejecte d a narrow reading of the statute, under which an employer could not be held liable for sexual harassment unless the employee’s salary and promotions were affected by the actions. In the Vinson case, PLAINTIFF Michelle Vinson, an employee of Meritor Savings Bank, claimed that her male supervisor, Sidney Taylor, had sexually harassed her. Taylor made repeated demands for sexual favors, and the pair engaged in sexual relations at least 40 times. Vinson testified that she had engaged in sexual relations because she had feared losing her job if she refused. The harassment stopped after Vinson began a steady relationship with a boyfriend. One year later, Taylor fired Vinson for excessive use of medical leave. Although the bank had a procedure for reporting harassment, Vinson had not used it because it required her to report the alleged offenses to her supervisor—Taylor. Justice WILLIAM H. REHNQUIST, writing for the Court, established several basic principles for analyzing hostile-environment cases. First, for sexual harassment to be actionable, it must be severe enough to change the conditions of the victim’s employment and create an abusive working environment. Here, Rehnquist implied that isolated occurrences of harassment (such as the telling of a dirty joke or the display of a sexually explicit photograph) would not constitute a hostile work environment. Second, Rehnquist made clear that there is a difference between voluntary behavior and welcome behavior. Noting that Vinson and Taylor’s sexual relations had been voluntary, Rehnquist rejected the conclusion that Vinson’swillingness constituted a defense to sexual harassment. The critical issue was whether the sexual advances were welcome. If sexual advances are unwelcome, the inequality of power between a supervisor and subordinate strongly suggests that the employee engages in sexual relations out of fear. Third, Rehnquist held that courts must view the totality of the circumstances when deciding the issue of welcomeness. In Vin son, however, the Court did not address the question of whose perspective should be used in determining whether certain behavior so substantially changes the work environment that it becomes abusive: Should the standard be that of a reasonable man, a reasonable woman, or a reasonable person? In Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486 (M.D. Fla. 1991), federal district judge Howell Melton applied the reasonable woman test to determine whether the work environment was abusive to women. He held that a reasonable woman exposed to the pictures of nude or partially nude women that were posted in the workplace and to the sexually demeaning remarks and jokes by male workers would find that the work environment at the shipyards was GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 166 SEXUAL HARASSMENT abusive. The totality of the circumstances would lead a reasonable woman to these conclusions. The U.S. Court of Appeals for the Ninth Circuit echoed this reasoning in Ellison v. Brady, 924 F.2d 872 (1991). In Ellison, the court rejected the reasonable person standard in favor of the reasonable woman standard. The court believed that using the reasonable person standard would risk enforcing the prevailing level of discrimination because that standard would be male-biased. Even with the acceptance of the reasonable woman standard by the courts, the diversity of outcomes in harassment claims created confu- sion as to what constitutes harassment. In Harris v. Forklift Systems, 510 U.S. 17, 114 S. Ct. 367, 126 L. Ed. 295 (1993), the U.S. Supreme Court attempted to clarify this issue. Teresa Harris had filed a discrimination claim based on the behavior of the company president, Charles Hardy. Hardy had insulted Harris and other women with demeaning references to their gender and with unwanted sexual innuendo. The district court ruled that although Hardy’s comments were sufficiently offensive to cause discomfort for a reasonable woman, they did not rise to the level of interfering with that woman’s work performance. The court also held that Harris had not been injured by the comments. The Supreme Court overruled the lower court, holding that courts must not fo cus their inquiry on concrete psychological harm, which is not required by Title VII of the Civil Rights Act. To maintain such a requirement would force employees to submit to discriminatory behavior until they were completely broken by it. Solong as the workplace environment would reasonably be perceived as hostile or abusive, it did not need also to be psychologically injurious. Thus, the plaintiff in a hostile work environment case must show that sexually harassing behavior is more than occasional, but need not document an abusive environment that causes actual psychological injury. The courts recognize that a hostile work environment will detract from employees ’ job performance, discourage employees from remaining in their positions, and keep employees from advancing in their careers. The Title VII guiding rule of workplace equality requires that employers prevent a hostile work environment. In the companion cases Burlington Indus- tries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L. Ed.2d 662 (1998), the U.S. Supreme Court sought to clarify the confusing state of sexual harassment law. It held in both cases that an employee could sue for damages for sexual harassment under Title VII even if the employee did not suffer any adverse job consequences, such as demotion or termination. The Court stated that under Title VII, an employee who refuses “unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job conse quences” may recover damages from an employer. The employee does not have to show that the employer was negligent or at fault for the supervisor’s actions to recover damages. The Court based its new standard on principles of agency law. Agency law describes the responsibilities of employers and employees to each other and to third parties. The Court invoked the agency principle that makes employers liable for the torts of employees who act or speak on behalf of the employer and whose apparent authority the victimized employee relies upon. The Court, howev er, also provided employers with more protection in Ellerth. If a supervisor has harassed an employee, but no tangible emplo yment action is taken against the employee, the employer may present an AFFIR- MATIVE DEFENSE . This defense includes a showing that the employer exercised reasonable care to prevent and correct sexually harassing behavior. A company’s policy against sexual harassment would be relevant to demonstrate reasonable care. The defense also allows the employer to show that the employee had unreasonably failed to take advantage of the employer’s anti- harassment procedures. This affirmative defense has proved to be an effective way for employers to avoid liability. Ellerth gave employers an additional incentive to institute policies against sexual harassment. A first step is to determine whether a problem exists. Some companies conduct informal surveys of their employees concerning sexual harassment. In addition, employers often inspect the workplace for objectionable material, such as photo- graphs of nude people or insensitive or explicit jokes with sexual connotations. Employers typically include a policy against sexual harassment in personnel policies or GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SEXUAL HARASSMENT 167 . OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SEXUAL ABUSE 161 Child Testimony in Day Care Center Sexual Abuse Cases B etween 198 3 and 199 1, a series of cases. ed. 199 5. African Amer- ican Women Speak Out on Anita Hill- Clarence Thomas. Detroit: Wayne State Univ. Press. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SEXUAL HARASSMENT 165 (U.S. 199 8),. Megan’s Law Challenges.” New York Law Journal (April 15). CROSS REFERENCES Child Abuse; Equal Protection; Megan's Law; Substantive Due Process. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SEX