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New Jersey Civil and Employment Rights Lawyer Discusses Penn State and Syracuse Sex Abuse Cases

Sexual Abuse Isn't About Sex, But About Abuse of Power As an employment and civil rights lawyer doing a great deal of work to act against both work and school sexual and other forms of bias-based harassment, I'm often asked, sometimes smugly (and thus always in those situations ignorantly), whether or not sexual harassment is "really" as bad as "they" (whoever the hell that is) make it out to be. I'm paraphrasing here, but you can anticipate the many and...

Sexual Abuse Isn't About Sex, But About Abuse of Power

As an employment and civil rights lawyer doing a great deal of work to act against both work and school sexual and other forms of bias-based harassment, I'm often asked, sometimes smugly (and thus always in those situations ignorantly), whether or not sexual harassment is "really" as bad as "they" (whoever the hell that is) make it out to be. I'm paraphrasing here, but you can anticipate the many and varied forms in which the question often comes. Some people, no doubt, are genuinely interested and are perhaps even respectfully skeptical, but willing to be educated. Some people, usually the types that listen to conservative lunatics on television or on radio, already imply the answer with their question because they have long ago abandoned "changing one's mind" in the face of competing facts as politically (or otherwise) weak.

Sexual harassment is about power. It's almost never about the type of traditional "power" we conjure in our minds when we think about absolute dictators and people with guns and tanks. It's not the sort of power we imagine when we imagine the white police hosing down or setting dogs upon civil rights workers.

People in every relationship exchange power. Children are within the (hopefully well exercised) power of their parents. That's why parenting is such a profoundly important thing. Parents have to exercise that power not for their benefit, but for the benefit of the children they raise, so that those children turn out to be valuable, happy and to the extent possible, well adjusted contributors to the society into which they grow up. To a lesser extent, but still importantly, every friendship involves an exchange of power. And obviously, teachers have a derivative but very similar type of power as do parents and as do the educators appointed to supervise the activities of the teachers.

And as well, and obviously, any worker "A" who works for employer "B" is yielding some degree of power to employer "B." The reality of this economic power is the reason why we have a union movement and labor laws. This is so because, sadly, everyone has to admit that at the bottom of the barrel, a human being is generally selfish and self-absorbed. We are only recently evolved animals and animals we once more become when sufficiently provoked. There's an old expression that human society is only "nine meals away from barbarism." Truer words were never spoken. "Good" people are people who manage to tamp down, for the betterment of themselves, their families, their communities and society, our base human urges to exploit, to exercise dominion and control, and to do that which is best for us and not best for everyone else.

We have laws for the same reason that we have labor unions, collective bargaining agreements, and anything else that "evens the playing field" in human relationships.

Sexual (and racial and other types of bias-based) harassment can be what happens when someone abuses that power equation. Obviously, there are many ways to abuse the power equation. Bosses who decide simply to vindictively fire people or hold people to unreasonable standards are clearly abusing their power, but that is sadly so typical of human relationships that the law does not choose to intervene except in limited circumstances (such as in the breach of a contract or a union agreement or in civil service scenarios, etc.). Generally, "shitty employment situations" are not ripe for litigation because the law doesn't choose to intervene. As has often been said about our civil rights laws in New Jersey, they are not "general civility codes."

At the same time, we have a special interest in preventing bigotry. When someone in a bigoted way abuses their power, that's one of those situations in which the law - and lawyers like me - are empowered to act.

Sexual harassment is one of the most vile forms of this type of bias-based abuse and it is exceptionally and horridly vile when exercised against helpless or defenseless children. At least, those children are "helpless or defenseless" when compared with similarly situated adults. What happened at Penn State and what is happening at Syracuse is not even the tip of the tip of the iceberg. We could talk about the church (and any other religious situation where the coercive power of spiritual punishment can make children so terrified into silence that the truth almost never comes out as often as it should). We can talk about scoutmasters, teachers, tutors, family guardians, babysitters and yes, even close family members, who abuse the special gift that being responsible for (at least in part) molding a young mind represents.

It's a shame too, really, because in our modern day and age, everything is media fodder. In addition to all of the "valid" news that we still need to listen to (and that I was used to listening to on three news networks and through two newspapers as a kid), we have to sort through orders of magnitude more garbage than we once upon a time had to sort through. In other blogs, I have posited that this "media smorgasbord" is actually one of the ways in which the corporate power structure keeps the American public ignorant and distracted about what is really being done to our rights, our environment, and the fabric of our society, but I digress.

In this media suffused culture, we tend to make dramatic and hasty judgments about large data sets from increasingly smaller and biased data samples. There are many people out there that now are terrified to send their kids to football camp because of the Penn State coaches and who will no doubt next be afraid to send their kids to scout camp because of a bad scoutmaster.

Yet for the same reasons that we still drive cars despite the fact that some people drive drunk and still have campfires despite the fact that some people are arsonists, everyone needs to take a deep breath and realize that good people are everywhere and they outnumber the bad people (see above for the definition of "good").

Yet what do we do with the "bad" people that abuse their power, especially when they are abusing that power concerning children?

Our New Jersey Law Against Discrimination punishes this conduct in any "place of public accommodation," which includes camps, schools and even private institutions like the boy scouts or churches when the religious mission of the entity has nothing to do with the abuse.

The law is meant to not only punish the person who undertakes the conduct but also the institution that failed to protect the people abused by their representative. Yes, the law allows us to sue for money, but if not money, what then? When someone invents a time machine that allows a jury to transport everyone back in time to a point where the wrong has not been done, you let me know, and I'll be happy to start putting that into my complaints. Until then, I can't litigate for comic books, apple pies, groceries or widgets. The only thing that our society recognizes as a medium of exchange is money and therefore, it's not a dirty word to ask for it in complaints. We ask for the same money damages that corporations ask for when they sue other corporations, by the way - they don't ask for apple pies, either. Our Law Against Discrimination is a substantive and far reaching civil rights statute which is meant to end the "cancer" (legislature's word, not mine) of all sorts of discrimination.

It's fortunate indeed for the people at Penn State and Syracuse that, as fiercely as I'm sure the people seeking redress in the courts will litigate their matters, they didn't commit their wrongs in New Jersey, because in New Jersey, we have a particularly strong statute that speaks to this sort of vile abuse.

The New Jersey Law Against Discrimination is a necessary - and, as I'm sure you can all agree having listened to what's going on out there (and imagining what might be going on and not addressed) - important, law to have. It's one of the reasons I do what I do and it is one of the safe harbors on the "journey to justice."

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