Crime or Misdemeanor

‘Crimes or misdemeanors.’ My husband uses that phrase when we talk about making judgments about people’s behavior. We are walking in our neighborhood and I am telling him about my distress because someone disappointed me. After listening to me vent for a bit, he will ask, “Crime or misdemeanor?” a reminder to put things in perspective. Do I want to hold a grudge? Do I want or need to discuss it with the person? Gary isn’t saying it to minimize my emotional response to the incident, but to ask me to step back and look at it afresh.

Some transgressions are minor, others far more significant and it is useful to make that distinction. It is relevant in terms of how we evaluate the person’s character and assess the consequence. Lately, particularly in the context of the #MeToo movement and accusations of racism, it feels to me that we are losing the capacity to be discerning, especially about the punishment. I think there is something to the argument that ‘cancel culture’ has gone too far, even if the phrase is a Fox News favorite.

I believe Harvey Weinstein got what he deserved. Even if one wanted to say he was canceled, he should have been. In my saying that the pendulum may have swung too far in canceling people, I am not offering a defense of indefensible behavior. Rape, assault, stalking, unwanted touching, ogling, unwelcome flirting are all unacceptable, but they represent a range of wrongs. I think we need to ask what the appropriate punishment is depending on the offense. In the context of sexual harassment at work, options could range from criminal charges to a warning. Potential responses include referral to the police, an internal investigation, bringing in an outside consultant, a counseling memo in their personnel file, firing, required training, reassignment or some combination of these. Perceptions will vary about the appropriate response. The problem we are up against is that for years and years and years, nothing was done. Women weren’t believed or the problems were swept under the rug. Perhaps in reaction to that, we are overcompensating now.

When the New York Times reported that Peter Martins, the director of the New York City Ballet (NYCB), retired because he was being investigated for creating a hostile environment, which included sexual harassment, my mother was outraged. It wasn’t clear whether the investigation had been completed when his decision was made (it seemed he was forced to retire). Mom was a huge fan of his dancing – we both were, we followed his career and enjoyed his performances over the years. She thought he was being treated unfairly. I argued that the organization likely had a lot more information than what was in the paper. I reminded her of some incidents that had been reported about him in the past. I also made the point that NYCB likely didn’t undertake a major investigation and accept his retirement without good cause. I asked her “Why would you assume that the charges are all lies?” She still thinks he was done wrong. While I don’t know the details, I don’t believe he was ‘canceled.’

In part the difference between my mother’s and my response is generational. Some behaviors that today we recognize as inappropriate were acceptable or expected to a woman of Mom’s age. Some of the #MeToo reporting didn’t sound so bad to her. (Let me be clear, she does not think sexual harassment is okay.) A coach was allowed to be verbally abusive. Sexual innuendo was part of office banter – at least in some places. A man giving a woman a compliment on her appearance may have been appreciated – it may still be.

There are intangible things at play – whether it was 50 years ago or today. Two men saying the same thing can be received very differently – tone of voice, body language, previous interactions, the look in their eye all inform the meaning of the words. “Pretty dress,” can sound innocent or lascivious. Two women hearing the same comment may respond differently – one may be flattered, another may be uncomfortable. One person may be motivated by a coach yelling, another may shut down. We can acknowledge that this can be fraught without giving up making judgments. We also can’t sustain knee-jerk reactions to every accusation. We need to make the effort to navigate this messy, confusing and difficult terrain.

We also can’t know a person’s intention. The law makes distinctions based on intentionality – harming someone purposefully is different than accidentally. It can be hard for prosecutors to establish intent; harder yet in a harassment claim. Did they mean to make someone uncomfortable? Are they on a power trip? Are they racist or ignorant? Does intention matter? Yes and no. Sometimes the action speaks for itself. The guy in Atlanta may deny racist intent after he murdered six Asian-American women, but what he did belies his words.

Ignorance is an inadequate defense, too. If you make no effort to educate yourself, then you bear responsibility for not knowing the meaning of words or symbols. Is it believable that a person doesn’t understand what a swastika represents?

 Another question is: Can we give the harasser an opportunity to redeem themselves? I am troubled by the idea that people are written off or deprived of their career without slowing down to investigate and then give due consideration to the punishment.

What guidelines can we use? I think it can be helpful to ask what if the behavior/action happened to our child, spouse, friend or relative? Imagine yourself as the victim. See if that empathy changes your perspective.

By the same token, ask yourself if the person who is accused was your spouse, child, friend or relative, what would you think is fair? Does that change how you would like them treated?

We also need to be cautious in reacting to what we see in the media. Sensational headlines get attention. Sometimes the full story gets lost. Let’s all take a breath.

Accusations should be investigated, fairly and thoroughly. Once facts and perceptions are understood, we need to find a just response; one that is not inflamed by political extremism, righteous anger or a rush to judgment. In the long run, we all benefit from a thoughtful, fair process. We don’t want the pendulum to swing too far back in the other direction, silencing voices that have only begun to be heard.