Analysis Law and Policy

In Case You’re Wondering, Groping Is Illegal

Hannah Harris Green

One argument that has come up again and again—both in relationship to Sen. Al Franken (D-MN) and other men accused of sexual misbehavior—is that we are lumping all kinds of harassment and assault into the same category. In their attempts to defend these men, writers, commentators, and even their colleagues end up miscategorizing the behavior themselves.

Last Thursday, Al Franken announced his intention to resign as senator of Minnesota under mounting pressure from his party, after multiple women accused him of groping them without their consent. While plenty agree that Franken’s decision was the correct one, his resignation spurred anxiety and misgivings in many on the left, who worry it will do more damage than good in the long run to the Democratic Party, and even to our sense of what is socially acceptable.

One argument that has come up again and again—both in relationship to Franken and other men accused of sexual misbehavior—is that we are lumping all kinds of harassment and assault into the same category. In their attempts to defend these men, writers, commentators, and even their colleagues end up miscategorizing the behavior themselves.

In an essay published last ThursdayNew Yorker columnist Masha Gessen argued that the pressure against Al Franken to resign stemmed from a compulsion to police sex—rather than concerns about “power, violence or illegal acts.” She wrote:

The accusations against him, which involve groping and forcible kissing, arguably fall into the emergent, undefined, and most likely undefinable category of “sexual misconduct.” Put more simply, Franken stands accused of acting repeatedly like a jerk, and he denies that he acted this way. The entire sequence of events, from the initial accusations to Franken’s resignation, is based on the premise that Americans, as a society, or at least half of a society, should be policing non-criminal behavior related to sex.

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True, groping is not rape. But it is illegal, and it is a violation, and therefore it falls into the category of behavior that may reasonably be policed legally and interpersonally without signaling a fascist society. Throughout her column, Gessen worries that by condemning Franken, we as a society are moving towards a regime that “closely regulat[es] sexuality”—as though groping could simply be part of someone’s sexual preference and not a violation of someone else’s bodily autonomy or, for that matter, the law. Her point of view is not unique; since Franken’s resignation and in the weeks leading to it, powerful men like Matt Damon have worried that we can’t tell difference between rape and a pat on the butt. Other commentators have suggested that by holding Franken accountable we are moving toward a puritanical regime that punishes the innocent, arguing that Franken was getting the boot for behavior that was simply  “boorish,”seemingly in contrast to “actual” criminal behavior.

But in fact, Franken’s own state’s laws are fastidiously specific about the illegality of the actions of which he has been accused. While commentators fret over how we define these men (and others), the law gives us very precise language that we could use to talk about their violations. There is some debate about whether Franken is actually touching Leeann Tweeden’s breasts in a now-infamous photo, but multiple other women have also accused him of touching their breasts and squeezing their butts. In Minnesota, some of Franken’s alleged actions fall into the category of “fifth degree criminal sexual conduct,” which consists of “nonconsensual sexual contact,” including touching of “intimate parts” such as the “breast of a human being.” This is a “gross misdemeanor” punishable by a fine of up to $3,000, a year in prison, or both.

When it comes to harassment of employees specifically, as Rebecca Traister pointed out in a piece that also responded to Gessen’s New Yorker column, sexual harassment law is explicitly meant to protect women at work. It is a civil matter, and is legally defined as a form of discrimination, thus encompassing all forms of sexually discriminatory behavior at the workplace, from sexually targeted commentary to coercion to assault.

It’s true that in media coverage of the #MeToo movement, language is rarely this specific. Groping is often referred to as “harassment”  in headlines, even though the legal terms for the actions groping entails are more serious: “sexual battery” or “criminal sexual conduct,” or low-degree sexual assault, depending on the state. (The multiplicity of legal terms across different states could also understandably be a source of confusion, although few commentators seem interested in looking up the law at all.) This general ignorance about the laws surrounding groping tends to work in the favor of perpetrators—think of the time Mark Halperin claimed that Trump had admitted to “nothing illegal” when he bragged about groping women—months before Halperin himself was accused of the same crime.

The broadness of the term harassment can actually have the effect of broadly minimizing physical offenses like groping. Groping is one of the first things we think of when we think of workplace harassment, which might be why we don’t think of it as a violation that could land someone in criminal court as well as civil court. Our seeming inability to distinguish different kinds of consequences might also be what leads commentators, as well as former colleagues of the accused, to fret about “due process” and trial in the “court of public opinion” when it comes to powerful men losing their jobs—even though these men aren’t even being charged in criminal court, and aren’t facing jail time. In fact, “public opinion” is what gave the majority of men targeted in the #MeToo movement power in the first place. They are, after all, public figures: politicians and members of the entertainment industry. Franken’s poll numbers did not look good in the lead-up to his resignation, suggesting that a replacement might have a better chance at re-election. From this perspective, his resignation was not only moral, it was politically expedient.

For those who worry that the #MeToo movement is overreaching by targeting many different kinds of bad behavior, I would suggest instead looking at it as an opportunity to better understand the laws that are in place to protect women and others who face sexual discrimination. The resources are out there—lawmakers and activists have put effort into finding the specific language to define various violations and how they should be handled. These laws vary from state to state; they are selectively enforced, and certainly are not above criticism, but in order to accurately critique the law it’s important to understand it, first. For those who wonder how their own past actions could be judged in the midst of the #MeToo movement, learning the exact legal definition of your behavior could be scary, but it will also help you figure out how to move forward and to put your actions in legal context so that you can move towards reconciliation. For those trying to understand our own experience, and our own rights, nuanced understanding can give us power within the system, and, when necessary, the power to fight it. It’s time to understand groping as the crime that it is.

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