Are we in danger of doing away with flirting, compliments, sex?
The lines between flirting and harassment are not as blurry as some people seem to be suggesting
An alleged victim of Harvey Weinstein, Mimi Haleyi, at a press conference held by attorney Gloria Allred in New York recently. Photograph: Mike Coppola/Getty Images
Not you too, Dustin? The list is long and inglorious, and getting longer by the day.
Dustin Hoffman, Kevin Spacey, film-maker James Toback, director Brett Ratner, along with several members of the British Tory party, have been swept up in the deluge unleashed by Harvey Weinstein, and accused of varying degrees of sexual harassment.
Hoffman, it is alleged, groped a 17-year-old girl. Spacey allegedly harassed a 14-year-old boy. The Westminster “dirty dossier” contains the names of up to 40 Tory MPs, though several are only named as being involved in consensual relationships with colleagues. On Twitter, there are rumours about who might be the first “Irish Weinstein”.
But amid the universal horror that greets every fresh revelation, a degree of uneasiness has begun to creep in. It’s not a backlash; more a murmuring of concern. Have we gone too far? Must every clumsy come-on, every off-colour remark, every uninvited touch, now be reclassified as harassment?
In legal terms, the question of what constitutes harassment is fairly clear. According to the Employment Equality Acts 1998-2015, it is “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature . . . conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment”.
Are we in danger of accidentally doing away with compliments, flirting, dating, sex
In the real world, it’s all a bit more murky. Is the actor Adam Sandler putting his hand first on Emma Thompson’s knee and then, twice, on Claire Foy’s during the Graham Norton show last weekend intimidating, hostile or degrading? And if not, is it harassment?
Is harassment – as the veteran broadcaster John Humphrys repeatedly asked William Hague on BBC Radio 4 this week – a male MP asking a woman out? In our haste to rid the world of Weinsteins, are we in danger of accidentally doing away with compliments, flirting, dating, sex and – possibly even – the entire human race?
But there’s no need to panic, because it’s actually fairly simple. The line between flirting and harassment is not, in fact, that blurry at all. Flirting is a bit of fun. Harassment is behaviour likely to make the person on the receiving end feel harassed.
Claire Foy said Adam Sandler’s hand on her knee “caused no offence”, even though she pointedly removed it. But, in the climate of Weinstein, it still struck many people as offensive. It did not look like a “friendly gesture”, as his spokesperson put it. Like all such behaviour, it instead served as a reminder – possibly even an unconscious one – of who held the sexual power on that sofa. It might not have been harassment, but it was not fun. It crossed a line.
Others would say the very fact that this is up for debate means we’ve gone too far; that we are now in danger of conflating mass rape with a lewd remark or a touching of the knee. But as sentient adults, we can all recognise that there is a scale of sexual conduct, which starts somewhere around mutually enjoyable flirtation and ends with rape.
Interpreting the kind of behaviour that falls towards either end of the scale is generally not a problem. It is the behaviour in the middle zone that causes the confusion. The wandering hands, suggestive remarks, brazen gaze that repeatedly, pointedly, drifts towards the chest. The catcalls, the grabbing.
But again, this is not that difficult to navigate. In those grey areas in the middle, it’s all about power, pattern and persistence.
A single occasion of a hand on someone’s back as they walk through a door is not harassment; uninvited handsiness inflicted on an unwilling colleague in the back of a taxi probably is.
A compliment is not harassment; a crude sexual remark shouted on the street and designed to intimidate a woman walking alone is.
Flirtation is not harassment; lewd banter in a non-mutual, non-sexual context probably is.
Pestering them to stay and watch you take a shower is definitely harassment
Asking someone on a date is usually not harassment; asking them on a date when you’re in a position which makes it difficult for them to refuse might well be. Badgering them repeatedly for a date when they have made it plain they have no interest is moving into harassment territory. Pestering them to stay and watch you take a shower is definitely harassment. “Grabbing by the p**sy” or anywhere else is not merely harassment, it is assault.
If men are still confused about how their behaviour might be interpreted, there’s a very simple solution: just ask. Did I cross a line? Did I make you uncomfortable? Is my behaviour bothering you?
It comes down to this. We need to trust the women – and the men – on the receiving end of boorish behaviour to know how it should be interpreted. The law talks about the “purpose or effect” of the conduct being to violate dignity and create a hostile environment.
But in the real world, regardless of the intent or impact, it is harassment if they feel harassed, or are likely to feel harassed. Even in situations where a woman manages to emerge from the encounter entirely unscathed – physically, psychologically, emotionally, professionally, socially, financially – it can still be harassment.
We don’t say to victims of burglary that their lives don’t seem to have been ruined by having their lawnmower stolen from their garden shed; therefore it wasn’t really burglary. We don’t insist they once lent their neighbour their lawnmower, so he can now come and take it whenever he likes. We don’t say that they put their next lawnmower back in the same shed, therefore they must secretly have enjoyed having it stolen.
That would be nonsensical. Likewise, a woman – or a man’s – life doesn’t have to have been ruined for her to have suffered harassment. She can be a victim of a harassment from strangers; from men passing in cars or walking down the street; from colleagues, bosses and present or former lovers. She can be a victim of harassment even if she’s laughing along. Her own behaviour, her demeanour, her wardrobe, her history, her response is irrelevant. All that matters is whether she felt, or was likely to feel, harassed.
Some people are warning that, as a result of the fallout from Weinstein, there will now be a massive over-correction in the behaviour of some men. I think I speak for all women when I say: good. It can’t come soon enough.
It’s not even that they might be unfairly accused of harassment, though that would be regrettable
The biggest problem right now is not that certain kinds of men might have to moderate their behaviour. It’s not that the intent of their actions might be misinterpreted. It’s not even that they might be unfairly accused of harassment, though that would be regrettable.
It’s that women are still being harassed, they’re still afraid to make a complaint, and when they do, they’re still not always being believed.