A coordinated defense against Sexual Harassment (using Laws, Norms, Markets and Code)

Finally, the tide is turning on the critical topic of exposing the prevalence of sexual harassment. From Silicon Valley, through Hollywood and the Art World, it seems as if two unspoken truths are now coming to light: first, that these industries, largely dominated by men, serve as breeding grounds for sexual predators in all varieties--from the annoying jerk who can't keep his hands to himself to the outright criminal; second, that faced with such behavior there is an inexcusable and systematic "boys-will-be-boys" shoulder shrugging at best, or at worst a culture of silencing and intimidation.

As a husband, a father of two young daughters, and an employer of many men and women, I realize that through this unfolding story, nobody can stay on the sidelines. We're all on the court brushing elbows -- and rightfully, without explicit consent, nothing else. The challenge for those of us who consider themselves honest men, and perhaps more so for any man or woman who hopes to promote feminism, is that we often lack a guiding conceptual framework that calls for zero tolerance for harassment and abuse while still encouraging the full richness of human interaction. Finding such balance is a pretty straight forward idea, so why is it so complex to stop abuse and harassment outright? Is there any hope that the world in which my daughters grow up in will be harassment-free in the same way that we now have smoking-free offices that our parents could only dream of? I think the answer is yes, and in the next few paragraphs I want to offer a framework through which we can think about a route to get to that world. The objective of any such framework should be a heuristic that allows any individual, man or woman, to freely express their identity without the fear of being targeted, harassed, or abused, in any workplace, educational, cultural, or any other public or private environment.

But first let’s start with one baseline idea: sexual harassment is rooted in a power dynamic that is played out in both the real world and the imagined world that exists between men and women. That power dynamic is NOT separated from the economic realities of patriarchal society, from the constructed ideas and ideals of masculinity and femininity as expressed in our mythology, literature and cinema, and from the cold calculus pertaining to the probabilities of crime and punishment. In order to stop harassment and abuse we must dismantle this power nexus one step at a time. So while much of the Weinstein story, for example, focused on the criminality of his actions, with the press betting whether he can be indicted, discussing harassment in a legal context only is like calling the rainbow blue. It misses out the full spectrum of the phenomenon. To be sure, some sexual abusers are criminals and should be handled by the police and the courts and locked away, but many if not the majority of sexual harassment situations are dangerous exactly because they do not cross a criminal boundary.

In order to bring harassment cases to zero, we must understand the forces that govern them. I believe the framework that was introduced by Professor Larry Lessig (now at Harvard) can offer us a helpful compass. Originally developed as a theory to explain the effects of new technologies on society, Lessig’s theory can be just as useful when we want to understand the effects not of addition but of subtraction. He focuses on four interacting forces: laws, norms, markets, and code. Each of those plays an interlocking role in the development, and adoption of new technologies, or in this case, can play a role in the explicit attempt to change course and eliminate harassment. We need to consider each of these in turn, and see what needs to change in order to create a culture of zero tolerance for exploitation.


Supposedly this one is easy. Why not just criminalize more behaviors, increase punishments, set lower standards for accepted evidence of abuse, and other related changes? The reality of course is that in a he said/she said situation, when the legal standard is that of innocence unless proven guilty beyond reasonable doubt, the law is sometimes maddeningly toothless. But even if more cases could result in convictions, there is mounting evidence, most famously regarding the 'war on drugs' on how devastating mass criminalization can be. It seems as if a more productive route is not to criminalize minor offenses, rather, to use the law to distinguish between truly criminal behavior and lesser transgressions that should be handled by other means. Of course this is a circular definition, but the operative takeaway is that the law—how its drawn in the books and how its practiced in the courts—is one tool in a larger toolbox, that should be used in conjunction and not isolation from the other forces. The litmus test, I believe, should focus on consent. Sex and its related expressions are from time immemorial at the heart of human behavior. Crimes of harassment are primarily crimes against an individual's ability to regulate or consent to participation in such activities. The law must protect those rights.


Perhaps the biggest success of the #metoo campaign is that it helps set new norms. The same goes to what is now common practice in many companies, a mandatory 'sexual harassment prevention training'. Posting on Facebook, or seeing a 30 min video might seem ineffective considering the magnitude of the problem. Social media is an effective stage for expressing compassion, identification or dissent, but it’s a double edged sword if it replaces, rather than empowers, action in the real world. At the same time, the benefit of either of these activities is that it draws a line in the sand, which is exactly what norms are, and laws are not; flexible, ever-shifting, negotiable. It used to be OK to smoke anywhere. It's not OK now. People did not stop smoking because of laws; they stopped smoking because of shifting norms. A norm, by definition, becomes a norm when more people adopt it. By taking a zero-tolerance stance on sexual harassment, norms can and will change. But this will not happen in the abstract. It will only happen if we each take a personal commitment to change the norms. Will my friend who works for a tech giant speak up next time he overhears the bros rating the pictures of the female employees on their company’s website? Will the music producers consult young singers to rely on their talent and not appear naked in music videos? Will my daughters’ public school principal ever be brave enough to add a discussion about the sexualization and objectification of the female body to the curriculum? And will I terminate on the spot the jerk who over-drinks on the Christmas party and makes indefensible lewd remarks? Will you stand up to the bully on the subway who uses rush hour as an excuse to stand two inches too close? or will we all look the other way? There is only one right answer. We must take this personally since norms take shape within conversations, whether those happen on TV, on social media, at school, next to the water-cooler, at a party or anywhere else. We need to take a personal commitment to draw the lines in the sand, with words and with deeds, and stand on the right side of those lines. Every time. Relentlessly. Over and over, until the winds of change erase those lines for us.


In the market-driven economy of early 21st century, this is one of the most powerful forces. In this world consumers are kings and queens. If sexual harassment were to carry the risk of economic ruin, just like it did for the O'Reily factor abandoned by its advertisers, the Weinstein company who fired its namesake, or the last season of Netflix's house of cards which lived up to its name, it might be a very potent tool indeed. So the commitment needs to extend to our consumer behavior. If we don’t shop for products who don’t stand for our values, don’t take money from misogynistic VCs, don’t watch TV shows cast with abusers, then individuals and companies will be much more likely to curtail abuse if they knew it hurts them in their most delicate organ: their wallet.


Code controls the technical fabric within which a we operate. A lot has been said and written about the dangers of our surveillance society, and companies like Snap made a business out of being able to opt out of the permanence of modern communication. But one area that can benefit from our always-on, always-on-screen modernity is the prevention of abuse. If would-be harassers know that what they say and what they do can and will be captured and used against them, perhaps they will think twice about that ‘stray’ hand or that abusive remark. Evidently, however, the same technology that can protect us can hurt us. Sexting, for example, might create a culture in which innocent flirting turns into harassment and used for bullying. The prevalence of porn might distort norms, by creating a new 'normal' which never was. In the end, technology alone doesn't affect human relations in isolation. It’s the combination of all four forces, particularly code and norms, that act together.

In summary, this cookbook has no secret recipe, but it allows us to understand that a layered approach is needed if we want to see change. In the first season of house of cards, President Frank Underwood claims that in life everything is about sex, only sex is about power. To paraphrase F.U., played by who we now know was a serial abuser Kevin Spacey, we can consider that maybe not everything related to the relations between the sexes is about sexual harassment, but sexual harassment is certainly about power. To dismantle this power, and get to a world with zero abuse, we must all make a personal vow for a coordinated defense that will keep our workplaces, classrooms, streets, and subway cars safe and respectful for all. If we take that vow, big d!x$ can and will fall just like big tobacco did.

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