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Scholars Assess Harassment Law

Second in a series on sexual harassment

By Suruchi Chandra

Lawyers, politicians and citizens left the Anita Hill/Clarence Thomas hearings last month with a heightened awareness of the issue of sexual harassment, but a myriad of questions about the effectiveness of a male- constructed legal system in dealing with crimes that victimize women.

In response to these questions about women and the law, feminist legal scholars from around the country said that for the most part, the laws currently on the books are sufficient to deal with sexual harassment cases. The problem is that while the laws exist, they are not taken seriously or enforced, they said.

Not Problems of Proof

Difficult burdens of proof should not present legal difficulties in cases of sexual harassment, says Mari J. Matsudo, professor of law at UCLA. Other serious crimes, such as murder, also involve cases where there are no witnesses to corroborate testimonies, Matsudo says. But the problem with sexual harassment cases is society's unwillingness to have strong laws for sexual harassment and enforcement, she says.

Matsudo says the fact that "we just don't care about it" prevents adoption of stronger laws as well as enforcement of the laws that already exist.

Patricia Williams, professor at the University of Wisconsin Law School, agrees that an underlying problem in protecting victims of sexual harassment is society's unwillingness to treat this kind of harassment as a serious issue.

"There is no comprehension still of [sexual harassment] as an abuse of power dynamics in the workplace," says Williams.

Scholars insist that more needs to be done to educate the public about women's work rights. "We don't have a system of public education and of leadership for the need to protect civil rights," says Matsudo.

Male-Biased Law

Part of the problem in society's lack of understanding of these problems, feminist legal theorists say, is that the law is rarely seen from women's perspective. And crimes such as sexual harassment and rape, which victimize primarily women, make all the more necessary the need to reexamine who is writing and interpreting the laws, they add.

An understanding of women's life and experiences is necessary in the courts and legal system, says Rutgers professor of law Nadine Taub, who also works at the Women's Rights Litigation Clinic.

Slack Enforcement

The lack of understanding of how serious such crimes really are leads to slack enforcement of the current laws against sexual harassment, the professors said. "As a society, we don't go after men who are sexual harassers," says Matsuda.

"There are many laws in place that deal with sexual harassment," says Elizabeth Schneider, professor of law at Harvard Law School. "The problem is the enforcement of these laws." Schneider and other theorists argue the reason for this is society's failure to acknowledge harassment as a wrong done against women.

Who's the Defendant?

Another complication that arises in sexual harassment cases is the attack that women face when they speak up against aggressors. "The laws don't need to be changed, but I think we need to realize that a woman stands a great deal to lose by alleging sexual harassment," says Schneider.

The recent Anita Hill/Clarence Thomas confrontation was an illustration of the treatment women receive when they attempt to bring cases of sexual harassment to trial, says Williams.

Underlying all the questions in the Anita Hill trial was a disposition to not believe her, says Williams. In the process, Hill's character and credibility were attacked with accusations of insanity, deliberate lying and opportunism, says Williams.

Anita Hill was attacked with "the vocabulary with which one described witches," she says.

In addition to the verbal attacks, women who speak up about sexual harassment also face the prospect of losing their jobs, the professors say.

And with these disincentives, women are frightened into remaining silent about their experience. "It would seem as though the message being sent is to keep quiet," says Schneider.

Even when women do speak up about sexual harassment at their jobs, they are often told to "just forget about it" by the workplace, says Williams. When workplaces establish offices to deal with sexual harassment, these offices often act only to stop the women from taking their complaints further, adds Williams.

In addition to enforcement of current laws, Taub and Matsudo say that stronger laws can be implemented to protect women.

Under present laws, women who have been harassed can only recover financial awards if the harassment resulted in loss of income. The laws need to be expanded to cover other types of damage, such as emotional harm, says Matsuda.

Backlash?

Scholars are unsure whether the recent highly publicized hearings will encourage women to speak up about sexual harassment.

On one hand, women saw that Hill suffered by accusing Thomas of sexual harassment, says Williams.

But while the Hill case may not encourage women to seek legal remedies, it "has caused many women to speak among themselves," she adds.

Taub agrees that the Hill case sent a mixed message to women about of seeking legal remedies for sexual harassment. Most women, she says, will at least speak to each other about sexual harassment. Whether this will result in legal action, however, is the question to which feminists do not yet have the answer, adds Taub.

Molly J. Schachter contributed to the reporting of this article.

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