Must punishment be fair?

From a recent column in Vox:

If you believe that a more just world is one in which sexual harassers lose their jobs, the only way you can act to enforce that norm is to take care of the sexual harassers in your midst.

That deceptively simple statement begs several tough questions:  (1) How do we satisfy ourselves that someone is, in fact, a sexual harasser — especially when the accused person disputes or outright denies the charge? Do we care about fairness  or are we only interested, as Emily Lindin suggests, in achieving a better result for women no matter what the collateral damage?

Once we’ve answered that one:  (2)  What “counts” (with apologies for the graceless term) as sex harassment?  Some accusations which have been linked to the recent sex scandals don’t allege sexual abuse at all.  Consider, for example, the accounts of Melanie Sloan, who has accused Rep. John Conyers (D.-MI) of verbal abuse but has also made it very clear that she was not sexually abused by him; and, of Rep. Joe Barton (R.-TX), who displayed questionable judgment in sexting nude photos of himself to his lover, but whose sexual relationship with the woman was by all accounts consensual.

A number of fairly amorphous goals are in danger of being conflated here.  Harvey Weinstein is accused of pressuring women into having sex with him by threatening to destroy their careers if they didn’t.  That’s sex harassment, period, and that’s certainly where this whole conversation started.  But other cases are not so clear.  John Conyers’s treatment of Melanie Sloan, if proven true, demonstrated disrespect for her as a person, and the fact that Sloan complained and could get no one on Capitol Hill to listen to her probably demonstrates similar disrespect system-wide — a denial of her right to be heard.  Joe Barton’s sexting within a consensual relationship signals — what?  Bad judgment?  An improper use of technology to express sexual desire and affection?  Are we ready  to apply the label of “sexual harasser” in order to publicly “take care of” all men who are abusive (but not sexually abusive) bosses?  Whose consensual sex practices offend our sensibilities?  That starts to feel uncomfortable, even dangerous.

Finally, (3) Having defined the term and found the allegation(s) credible, what does it mean “to take care of” someone who we decide is, in fact, a sexual harasser?  Are there gradations of such abuse; that is, are some acts of sex harassment more serious than others?  If the answer is no — if an unwanted touch on the arm is as morally heinous as a threat to destroy a woman’s career and reputation unless she has sex with the offender — then the offense of sex harassment rejects the principle of proportionality, according to which every other offense, public or private, criminal or civil, is graded.  If there are gradations of sex harassment, that in turn suggests that proportionality should be honored:  Acts which cause more harm or are more culpable should be punished more than acts which rank lower on those scales.

Defining prohibited acts, proving them, and assessing their relative seriousness are among the most difficult tasks of any system of punishment.  But those tasks are also most necessary because they collectively describe the difference between a fair system of justice and one that is arbitrary and capricious.

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