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We Need A Better Way To Talk About ‘Sexual Misconduct’

Matt Lauer was fired last year from his job co-hosting NBC’s “Today” show in response to allegations of “sexual harassment.” Or was it “inappropriate sexual behavior”? Maybe “sexual misconduct.” These are all headlines about the same reports — just using different language to describe them. As the media scrambles to cover wave after wave of accusations, the variation in language is making an already difficult national conversation about what crosses the line even more so.

The #MeToo movement, a campaign against sexual violence that gained national attention from media reports on allegations against former Hollywood producer Harvey Weinstein, is no monolith. It has brought to light violent sexual wrongs whose heinousness makes them easily identifiable as not only grave moral transgressions but also potential legal ones. Alongside the black-and-white cases, however, are those that involve more subtle behaviors — unwanted touching, offensive jokes, staring and intrusive questions. And it is typically this latter category that has left society at a frustrating loss for words.

This inability to distinguish between different types of unwanted sexual behaviors has arguably had major consequences for a movement that is trying to shift these subtler behaviors from the realm of the historically overlooked to the currently unacceptable. For one, it has left #MeToo open to the (witch-hunt) criticism that bad actors of many different types are being lumped together, with the implication that they should all face the same consequences (to say nothing of the consequent lumping together of the experiences of the victims).

But a path forward, to a clearer vocabulary (and understanding), is possible. Social science research into the kinds of unwanted sexual behaviors that people experience in the workplace has led to the development of some potentially useful ideas and terms — gender hostility, unwanted sexual attention and sexual coercion — that might help put a name to some of the #MeToo-highlighted behaviors. And there’s precedent for this kind of change: Sexual harassment was introduced as a concept and a term only in the past 45 years and is now in common usage.


We have seen this language problem play out several times since the Weinstein articles were published, but perhaps most prominently in the case of Al Franken. He was a Democratic senator from Minnesota at the time that he was accused of groping and forcibly kissing women at photo ops or events — allegations that were frequently described in headlines with the catch-all termsexual misconduct.” Franken resigned from office, prompting some liberal commentators to argue that he had been treated unfairly by a movement that was failing to draw distinctions between the variety of accusations being leveled against prominent and powerful men and that a ruined career should not be the consequence of every allegation made via #MeToo. Comparisons between the nature of the accusations against Franken and those against other accused men, including Roy Moore, then the GOP Senate candidate from Alabama, were often wielded as evidence in these articles. The first report that Moore had initiated sexual encounters with teenaged girls when he was in his 30s was published a week before the first Franken allegations surfaced.

Ginger Rutland, a former editorial writer at The Sacramento Bee and a self-identified Democrat, wrote in an op-ed in December: “Sen. Al Franken is not Roy Moore. He isn’t even Harvey Weinstein or Matt Lauer. At most, Franken … is guilty of boorish behavior — not assault, not pedophilia, not even sexual harassment. But with today’s fast-changing, contradictory and confusing reversal of sexual norms, he’s being burned at the stake, walked down the plank, buried alive.”

The allegations against Franken surfaced at the height of Moore’s Senate campaign, and partisanship inevitably played a major role in the response to each. Democratic voters and elected officials (eventually) pushed Franken to resign. Many Republicans stood by Moore. But the two cases were consistently discussed as a pair — even if it was in an attempt to explain why they were different. If a more appropriate vocabulary existed to discuss Franken’s behavior, the situation might have played out differently, and maybe allegations against him and Moore could have been in separate categories from the start.

“People like to use ‘sexual misconduct’ as the basket in which they throw things that they don’t think are bad enough to call sexual harassment,” said Louise Fitzgerald, a professor emeritus of psychology and gender and women’s studies whose research interests include sexual violence. “They want to say things like, ‘Al Franken didn’t commit sexual harassment; it was sexual misconduct,’ and what they’re trying to say is that it wasn’t that bad. But nobody really articulates what they mean by “‘bad.’”

We spoke with seven experts in the fields of psychology, law and communications who have studied gender and sexual dynamics, including Fitzgerald, and they generally agreed that the lack of precise language for some of the behaviors being discussed via #MeToo is a problem.

Naomi Mezey, a professor at Georgetown University’s law school and co-director of the Georgetown Gender Justice Initiative, said umbrella terms such as “sexual misconduct” or “inappropriate behavior” that were being used to describe the unwanted sexual behaviors of men were contributing to the backlash against the movement. “Words like ‘sexual misconduct’ mean everything from rape to a bad date,” she said. “People fear that we’re making the most basic interactions illegal.” She said there would be benefits to breaking down those sweeping terms: “We can think more carefully about the ways in which women feel sexually abused and can think more carefully about what kinds of things we want to make impermissible and permissible.”1


Although the media and society at large are struggling to articulate and understand the differences between unwanted sexual behaviors, social scientists have been thinking about these distinctions for decades. Some have proposed categories that are more specific than the umbrella terms of “sexual misconduct” and “sexual harassment.” And these conceptual frameworks could be a starting point for an expansion of the public’s understanding of, and vocabulary for, unwanted sexual behaviors.

One of these systems was developed by Fitzgerald. Between the late 1980s and early 2000s, she and her team created a framework for sexual harassment that distributes 16 behaviors — such as, “told sexual stories or jokes” and “made unwanted attempts to stroke, fondle or kiss” — across three categories:

  • Gender hostility refers to derogatory comments or actions that invoke sex or gender, rather than explicit requests for sex. There are two types — sexist hostility, which is specific to gender (for example, if someone made a joke about women in a meeting) and sexual hostility, which has a sexual component (for example, if someone asked about a co-worker’s sexual activities).
  • Unwanted sexual attention includes unwelcome attempts to initiate sexual or romantic relations (for example, when someone repeatedly asks a co-worker out on dates).
  • Sexual coercion involves many of the same behaviors as the previous category, but with the explicit threat of consequences — such as being refused a promotion — for not cooperating.

Fitzgerald and her team created the list of behaviors, which you can see below, by building on the work of previous scholars and researching women’s experiences. The conceptual categories also correspond to the legal standards for sexual harassment: The first two constitute the legal idea of a “hostile environment,” and the third maps to “quid pro quo” harassment.

There’s value to going beyond the legal categories, Fitzgerald said. “The most important thing in the world is to know what it is exactly you’re talking about, and sexual harassment is so much more than a legal category,” she said. “It’s an experience. We want to know what all aspects of that experience could be.”

Fitzgerald and her team used this framework to build a survey called the Sexual Experiences Questionnaire, which asks respondents whether they’ve experienced the specific behaviors. Versions of this survey have been applied to a variety of organizations since then, including colleges and the military, to understand the prevalence and types of harassing behaviors that occur within organizations. Over decades of the survey’s use, Fitzgerald has found that the conceptual categories remain relevant: “The categories cover the universe,” she said.

Any attempt to quantify human behavior has shortcomings, of course. Fitzgerald acknowledges that there are challenges:

  • Whether something is offensive or unwelcome depends on the perspective of the person who is experiencing it, she said. Inviting a colleague to dinner, for example, could be seen as an attempt to have sex or to do some innocuous professional networking.
  • This kind of framework can’t be used to determine whether some behaviors are inherently worse than others.
  • The 16 behaviors that the framework and survey depend on have not been updated recently. That means that any new kinds of unwanted behavior — for example, something like sexting that is the result of technological innovation — hasn’t been taken into account.

Expanding the public’s understanding of behaviors of a sexual nature that may be violating and how we talk about them might seem like a far-off goal. But it’s been done before, with the help of activists and scholars, who played a key role in the development and promotion of the term “sexual harassment” in the 1970s.

“This is an area where academics have been especially helpful in moving the law forward,” said Gillian Thomas, a senior staff attorney for the American Civil Liberties Union Women’s Rights Project.

There have long been terms to describe the most violent sexual behavior, like “rape” and “sexual assault.”2 But starting in the 1970s, the concept of sexual harassment was introduced to refer to other behaviors that people find uncomfortable and harmful, particularly in work and organizational settings. A group of women who were working at Cornell University first used the term to describe unwanted sexual advances at work, and coverage of their activism helped get that phrase into headlines. Around the same time, a book by legal scholar Catharine MacKinnon defined the two types of behavior that eventually became the foundation of the legal notions of sexual harassment: “quid pro quo” and “hostile environment” harassment. And her work was key to the establishment of sexual harassment in the workplace as sex-based discrimination under the Civil Rights Act of 1964.

Today, the Equal Employment Opportunity Commission enforces federal anti-discrimination laws in the workplace. Unlawful sexual harassment includes “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature” as well as “offensive remarks about a person’s sex,” according to the agency’s website. But there are limits: The agency also notes that the law doesn’t “prohibit simple teasing, offhand comments, or isolated incidents that are not very serious” and that harassment is only illegal when it is recurrent or severe.

But as #MeToo has shown us, the understanding of what constitutes unwanted sexual behavior — and how to talk about it — continues to evolve. Tools for moving the conversation forward exist. Will one part of the movement’s legacy be to push society to find the right words to describe it all?

Footnotes

  1. Sexual harassment, of course, does not happen only to women, though women are more likely to be victims of sexual harassment and have been victims in most of the cases that have come to light during #MeToo.

  2. Of course, the criminal justice system isn’t perfect, and the legal code isn’t entirely uniform across the country. The varying state standards include a couple of states that don’t forbid unwanted sexual touching. And the Model Penal Code that several states use to model laws around rape and sexual assault crimes hasn’t been updated in over 50 years.

Kathryn Casteel writes about economics and policy issues for FiveThirtyEight.

Andrea Jones-Rooy is FiveThirtyEight’s quantitative researcher.

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