Discussions of sexual misconduct often focus primarily or exclusively on the parties directly involved in sexual behavior. As a result, the discussion generally centers on consent. While consent is critically important, this Article instead focuses on harms to third parties resulting from sexual behavior--regardless of whether that behavior is consensual. Doing so reveals a dynamic that the conversation about sexual misconduct has not yet fully acknowledged: the presence or absence of consent between participants does not determine whether third parties suffer harm. Sexual behavior does not occur in a vacuum. Rather, it occurs in a particular context and often has significant consequences for other individuals beyond the participants in the behavior.
Sexual behavior is problematic when it involves what this Article will refer to as an institutional power disparity: that is, one participant has power over the other as a result of their institutional roles. Institutional power disparities are inherent, for example, in sexual behavior involving a supervisor and their subordinate or a professor and their student.
Such behavior risks significant harm to third parties within the institution. Third parties may be injured as a result of sexual favoritism. For example, a worker may be passed over for a promotion in favor of a less qualified worker who is having sex with the boss. Or third parties may suffer harm from a sexualized institutional environment. For example, students may avoid professors who are known for pursuing sexual relationships with students or may find it alienating to be viewed as a professor's prospective sexual partner. And the institution itself may suffer harm when sexual behavior involving an institutional power disparity interferes with worker productivity and morale, or with student learning and intellectual growth.
Harm to third parties justifies regulation of sexual relationships in the context of an institutional power disparity. In some circumstances, such relationships should be prohibited so long as the institutional power disparity remains. In other circumstances, careful regulation can mitigate potential harms to third parties and to the institution itself.
TABLE OF CONTENTS INTRODUCTION I. SEX AND INSTITUTIONS A. Sex at Work B. Sex at School II. THIRD-PARTY HARMS A. Injuries to Third Parties and Institutions 1. Material losses 2. Affective losses 3. Gender inequality 4. Institutional harm B. Third-Party Harm as a Response to Criticisms 1. Empowerment arguments 2. Desexualization arguments 3. Regulatory arguments III. CURRENT REGULATION A. Criminal and Tort Law B. Antidiscrimination Law 1. Title VII 2. Title IX C. Regulations D. Institutional Policies 1. Workplace codes 2. School codes IV. ACKNOWLEDGING THIRD PARTIES A. Antidiscrimination Law B. Institutional Prohibition C. Institutional Disclosure CONCLUSION INTRODUCTION
One night in Cannes, the actress Daryl Hannah began receiving incessant phone calls to her hotel room from producer Harvey Weinstein. (1) When she ignored the ringing phone, Weinstein came to her room and pounded furiously on the door. Terrified that he would sexually assault her, Hannah left through a side door and hid in her makeup artist's room. She recalls: "We actually pushed a dresser in front of the door and just kind of huddled in the room." (2)
Hannah was not Weinstein's only target: he sexually assaulted, abused, and harassed women for decades. (3) A female executive at Weinstein's company explained that he used female assistants as "honeypots" throughout his long history of abusing women. A female assistant "would initially join a meeting along with a woman Weinstein was interested in, but then Weinstein would dismiss them, leaving him alone with the woman." (4) Many of these female assistants felt trapped and unable to intervene in behavior they found disturbing because they were afraid that they would be unable to work in the industry or that the restrictive nondisclosure agreements they had signed would be enforced against them. (5)
Eugenia, (6) a sales associate, began having sex with her boss, Alex, with "[t]he ultimate aim [of] [gjetting him to recommend me for a promotion at the end of my first year." (7) Eugenia was successful: she convinced Alex to write her a glowing review and ultimately received the promotion. According to Eugenia, she deserved it. Alex "said he'd always believed that I was the best one on his team, anyway, and I knew he wasn't just saying that because he liked me." (8) Curiously absent from her account, however, are Eugenia's coworkers, who she mentions only as an obstacle to be negotiated: "We agreed to keep our budding relationship under wraps because we didn't want others in the company to find out, so we stopped lunching together and he stopped giving me rides home after work." (9)
Boni Mata, a student at the University of California at Berkeley, had a sexual relationship with a professor while she was a student in his class. (10) In her weekly sex column for the campus newspaper, she describes their encounters as fulfilling and erotic." On one occasion, "we both looked out onto the street at the unfortunate passers-by who weren't lovers like us." (12) Grading, to her, was almost an afterthought: "Yes, he was in charge of my grades, but wc both knew I'd have gotten an A regardless." (13) Although Mata does not mention her Berkeley classmates in her retelling, the comments following the online version of the article suggest that many were less than confident in Mata's assessment of her academic abilities and less than enthusiastic about her assessment of her sexual relationship. (14)
Daryl Hannah's makeup artist, Harvey Weinstein's female assistants, Eugenia's coworkers, and Boni Mata's classmates are shadowy, anonymous figures. They are minor characters in accounts of sexual abuse or adventure woven by the participants. Indeed, from reading many accounts of sexual behavior, both consensual and non-consensual, one might think that the two (15) people involved in a particular instance of sexual behavior are the only two people in the world. But the third parties I have highlighted here are real people with real lives, ambitions, struggles, and emotions. The sexual behavior of the ostensible protagonists affects them too.
Thus far, much of the conversation about sex that has resulted from the #MeToo movement has focused on consent. Certainly consent is critical to the discussion. Non-consensual sex is uncontroversially wrong. (16) It is and should be criminal and is often illegal in other ways as well. (17) And the question of whether sexual behavior (18) is consensual is certainly relevant to assessing its harms to third parties. The harm to Daryl Hannah's makeup artist is different than the harm to Eugenia's coworkers, for instance, and lack of consent to the behavior in the former situation explains some of the difference. But consent is not a magic bullet. Whether an interaction or relationship is consensual does not determine whether it causes harm to third parties. (19)
Expanding the discussion to include third parties reveals a critical dynamic that the #MeToo movement has not yet fully recognized. Acknowledging harms to third parties forces us to acknowledge that sexual behavior does not occur in a vacuum. Rather, it occurs in a particular context and therefore has significant consequences beyond the participants in the behavior.
Sexual behavior, I argue, is inherently problematic when it involves what I will call an institutional power disparity. For purposes of this Article, an institution is a structured and cohesive environment such as a workplace or school. (20) An institutional power disparity is a difference in the capacity of parties within an institution to affect one another's fates or circumstances as a result of their respective institutional roles. So sexual behavior involves an institutional power disparity when one individual engages in sexual behavior with another, and the former has power over the latter as a result of the former's institutional role. Institutional power disparities are inherent, for example, in relationships between a supervisor and a subordinate, or between a professor and their student.
I do not claim that every instance of sexual behavior involving an institutional power disparity is non-consensual, although many are. (21) Rather, the point is that even if such a relationship is consensual, it is still problematic given its harm to third parties and to the institution within which it occurs. The focus on third parties circumvents many common arguments against regulating sexual behavior--for example, that such regulation is paternalistic because it assumes that people cannot make their own decisions, (22) or that it infringes on sexual autonomy by interfering with consensual behavior. (23) Anti-paternalism or sexual autonomy are not the only considerations when sexual behavior also affects third parties.
Sexual behavior involving an institutional power disparity results in myriad harms to third parties. (24) Within a workplace, when a supervisor engages in a sexual relationship with a subordinate, the subordinate's colleagues often experience tangibly worse working conditions. A server at a restaurant may be asked to stay until closing while a counterpart who is having sex with the manager is allowed to leave, or a law firm associate may be asked to perform relatively menial tasks such as electronic discovery while an associate who is having sex with a partner has to opportunity to draft and argue a dispositive motion. Workers in all environments may suffer diminished opportunities for promotion when competing against a peer who is engaged in a sexual relationship with the person who decides who gets promoted. Likewise, a supervisor's peers may struggle to treat the subordinate fairly while maintaining a relationship with the supervisor. If a law firm...