Criminalizing coerced submission in the workplace and in the academy.

• Author: Buchhandler-Raphael, Michal

This Article challenges the prevailing view that Title VII and Title IX provide a single conceptual model that fit all forms of sexual harassment. In particular, it questions the assumption that coerced sexual intercourse in the workplace and in the academy is merely another form of sexual harassment that can be addressed within the current legal framework. Rather, the current paradigm must be critically revisited in order to provide an alternative account of these "submission cases" that separately categorizes them and acknowledges their distinctive harms. Accordingly, this Article suggests that these cases should be criminalized, and elaborates upon the justifications and policy goals that support this choice and make it a desirable remedy. This Article further explores the practical ramifications of an alternative account by examining which criminal model is better suited to criminalize coerced submission. Comparing and contrasting a lack of consent model and a sexual coercion model, the Article hypothetically applies them to various cases that were litigated under the sexual harassment framework. This exercise demonstrates that the sexual coercion model provides a more comprehensive and pragmatic construct for criminalization. Therefore, this Article proposes the adoption of a specialized criminal statute based on the sexual coercion model that would criminalize supervisory sexual abuse of power within the workplace and the academy and identify several conditions that suggest that submission resulted from this abuse. Such a proposal would carefully target sexually abusive situations that may be plausible candidates for criminalization and offer a narrowly crafted prohibition that is both gender- and race-neutral and limited in scope to avoid over-criminalization.

INTRODUCTION

Over the last thirty years, sexual harassment has evolved from a social phenomenon into an established cause of action. In the workplace and academy, women were subjected to various forms of unwanted sex, but historically, the law provided them with no basis for complaint or redress. Indeed, as far as the law was concerned, this unwanted sex was "business as usual." Catherine MacKinnon's groundbreaking work, (1) first published in the late 1970s, located a legal framework for sexual harassment claims in Title VII of the Civil Rights Act of 1964, which outlaws employment discrimination because of sex. (2) The project led by MacKinnon--which was wildly successful, in the courts at least--was to persuade lawmakers, as well as the public, that unwanted sex in the workplace could violate an employee's right to be free of sex discrimination.

This current view of sexual harassment as a violation of the right to equality embodies a carefully considered policy choice. As the architect of the claim, MacKinnon assumed that the Title VII framework would best capture the harms that she believed are at the core of sexual harassment. (3) Furthermore, MacKinnon's decision to rely on existing legislation, rather than propose a new statute, proved to be a prudent technique for convincing the legal system, as well as the public at large, that sexual harassment is a cognizable legal wrong. (4)

In the mid 1980s, this strategy was wise and perhaps necessary to establish a new cause of action. By now, however, this cause of action has come of age and the time is ripe for revisiting it critically. The sexual harassment rubric covers a wide range of workplace misconduct-everything from sexually explicit utterances, to different forms of unwanted touching, to coerced sexual intercourse. The law assumes, however, that this single cause of action is sufficient to redress the distinct harms flowing from each of these distinct invasions.

This Article aims to challenge that "one size fits all" paradigm by isolating one form of sexual harassment, namely, economically and professionally coerced sexual intercourse in the workplace and in the academy (hereinafter: the submission cases). These cases are especially egregious; indeed, they are crimes, and yet by and large, neither the law nor commentators recognize them as such. While it might be sensible to treat many forms of unwanted sexual misconduct as providing the basis for a civil cause of action, we must question whether weak civil remedies are a sufficient response to the criminal wrongs perpetrated in the submission cases.

Additionally, this Article proposes that it is time to criminalize these types of cases. MacKinnon provides an initial conceptual framework for criminalizing coerced submission. In her book Women's Lives, Men's Laws, she argues that "awareness of the social hierarchy is absent in the criminal law of rape," and remarks that "rape is a physical attack of a sexual nature under coercive conditions, and inequalities are coercive conditions." (5) However, MacKinnon nowhere develops the pragmatic implications of her theory, offers the operational aspects of her insights, or outlines the elements of a criminal statute that would punish coerced submission. (6) In addition, while MacKinnon's critical polemics are designed to raise the public awareness about the problem and inspire us to think of an adequate construct for criminalizing the submission cases, her rhetoric is too abstract and far-removed from the substantive details of actual cases to offer guidance to legislatures.

This Article undertakes to develop and refine MacKinnon's line of thinking by offering the missing, and much needed, pragmatic approach that targets the submission cases by capturing the wrongfulness of the perpetrator's misconduct and demonstrating the unique harms it inflicts. Along the way, this Article identifies, compares and contrasts two alternative models for criminalizing coerced submission: a "lack of consent" model and a "sexual coercion" model. The lack of consent model proves insufficient in providing a comprehensive basis for criminalizing economically and professionally coerced sex; ultimately, the sexual coercion model provides a better framework for criminalizing coerced submission.

The Article proceeds as follows: Part I explains that the submission cases must be separately categorized because they inflict unique harms on victims. Moreover, it argues that viewing these cases within the anti-discrimination framework results in several drawbacks, implying that current civil remedies prove insufficient in successfully combating the problem. Alternatively, the submission cases should be viewed through the lens of the criminal law. The legal justification for criminalizing this misconduct is based on the harm principle. Under this account, harm consists of two elements: harm to third parties and wrongdoing (specifically, the perpetrator's wrongful conduct). Based on analogies between rape law and the submission cases, the first Part concludes that criminalizing the latter is justified and desirable.

Part II considers the lack of consent model and the sexual coercion model as two alternative conceptual bases for criminalizing the submission cases. This Part stresses the features of previous reform proposals, which focused on establishing threats to harm as circumstances invalidating consent. After looking closely at the models, it concludes that the sexual coercion model is more sensitive to the harms and to the perpetrator's wrongful conduct that provide support for criminalizing the submission cases.

Part III offers a theoretical construct to illustrate which model is better fitted to criminalize the submission cases by applying the criminal models to various cases that were litigated in courts under current sexual harassment doctrine. This exercise illustrates that the threat-based proposals do not provide a sufficient model for criminalizing the submission cases and demonstrates that the sexual coercion model offers a more nuanced construct that would allow criminalizing various forms of sexually coercive conduct in the workplace and in the academy.

Part IV proposes a specialized criminal statute, entitled sexual abuse of power, to criminalize the submission cases. It illustrates that these cases can be criminalized based on adopting more realistic definitions of what qualifies as "power" and on articulating which circumstances amount to abusive conduct. To support these determinations, this Part identifies some specific conditions that tend to indicate that a certain type of conduct amounts to sexual coercion and should be punished as a crime.

This Article concludes by noting the advantages of the proposed prohibition, while stressing that the statute is carefully crafted to criminalize sexually coercive conducts only in the workplace and in the academy. In so doing, it avoids overreaching and overbroad criminalization by adopting some built-in limits that narrow the scope of criminal regulation.

I. JUSTIFICATIONS FOR CRIMINALIZING COERCED SUBMISSION

1. Targeting Coerced Submission and Defining Its Main Features

   [H]e suggested that after dinner they go to a motel for the purpose of having sexual relations. She contends that she declined his invitation and that he advised her that she owed him since he obtained the job for her. She allegedly continued to resist but he insisted and after dinner they drove to a motel.... He then took her to a room ... and then they engaged in sexual relations. She testified that she did so only because she was afraid that her failure to grant him a sexual favor would result in her dismissal from the job. Thereafter ... he made repeated demands upon her for sexual favors.... She testified that she was forced to engage in sexual relations with him at the bank during and after banking hours, that they engaged in intercourse in the bank vault, in other rooms at the bank ... that all of these activities were against her will, and that he often actually assaulted or raped her. She states that on one occasion ... he so brutally raped her that it led to serious vaginal...