Sexual Harassment Gone Too Far

Between 1990 and 1994, I served in the U.S. Navy. For the most part, my experiences were fantastic and I wouldn't trade them for anything, save for one incident--Tailhook 91. That a bunch of liquored up aviators (don't call them pilots) can sully an overall wonderful experience speaks volumes, particularly since I was an enlisted man in Washington, DC, almost a full continent geographically and whole world away mentally from the shenanigans of those idiots in Las Vegas. The fallout of Tailhook was dramatic and involved service-wide stand-downs for sexual harassment training that bordered on the comical for a young man whose parents raised him to be polite to everyone, regardless of their gender.

But Tailhook had an impact outside the Navy as well. As one of the most high profile sexual harassment episodes, coupled with a growing acknowledgment that sexual harassment in the workplace was a common, if not exactly commonplace, occurrence, Tailhook ripped the blinders off a society loaded with hypocrisy. But 16 years later, instead of getting better at dealing with sexual harassment, we have taken the matter to extremes that border on the insanely comical if it were so serious. Over the weekend, Yvonne Bynoe wrote in the Washington Post about sexual harassment in nursery school. Yes, you read that right, nursery school.

Could my son be accused of sexual harassment? He's a good boy. He likes watching "Thomas the Tank Engine" on television and playing "Simon Says." Like many 3-year-olds, he's very affectionate. Unfortunately, hugging his teacher may get him suspended from nursery school.

I doubt that it will happen to my son. But the frightening fact is that it could. I recently learned that children nationwide, some of preschool age, have been suspended from school or taken to jail after being accused of sexual harassment. In their zeal to avoid lawsuits, educators seem to be ignoring important information, such as whether the accused child intended to commit a crime or even knows how to pronounce the word "harassment."

What does it say about our society that the simple act of a mere hug from a three year old, who has been no doubt brought up with love and affection symbolized by hugs and kisses, can now be considered sexual harassment. Bynoe has more that should chill to the bone:

In my home state of Maryland, state data show that during the 2005-06 school year, 28 kindergartners were suspended for sex offenses, including 15 for sexual harassment.

Last December, a kindergartner was accused of sexual harassment after he pinched a classmate's bottom at Lincolnshire Elementary School in Hagerstown, according to the local paper, the Herald-Mail. The charge will remain on his record until he enters middle school. "It's important to understand a child may not realize that what he or she is doing may be considered sexual harassment, but if it fits under the definition, then it is, under the state's guidelines," school spokeswoman Carol Mowen told the Herald-Mail. "If someone has been told this person does not want this type of touching, it doesn't matter if it's at work or at school, that's sexual harassment."

In fact, the Maryland Department of Education defines sexual harassment as "unwelcome sexual advances, requests for sexual favors and/or other inappropriate verbal, written or physical conduct of a sexual nature directed toward others." I am alarmed that Mowen's statement appears to imply that schools will find a child guilty of sexual misconduct even if the child doesn't understand the implications of his or her actions.

Fifteen 5 and 6 year olds suspended for sexual harassment? The fact that the policy of the Maryland Department of Education is so broad, what surprises me more is that more kids haven't been caught in the dragnet.

In the law of torts, most children under the age of 6-8 depending on the state, are generally considered incapable of forming the necessary intent to commit an intentional tort, not because they can't intend their actions, but they have no concept of the consequences of their action. In Maryland, a child could be suspended for the FIRST act of harassment, regardless of whether they know what they are doing is "wrong." As Mowen noted above, it doesn't matter if they know what they did is wrong, the mere act in itself is wrong--regardless of the age.

For those of us who were fans of "Legally Blond," the whole incident reminds of the "malum in se" and "malum prohibitum" discussion. Malum in se are crimes that are by their very nature, evil. These are the traditional, murder, robbery, rape, assault type crimes. Malum prohibitum crimes are those that society has deemed should be wrong, like speeding or public drunkeness. The funny thing is that sexual harassment is not a crime prosecuted by the state, but a civil charge, brought by an individual against another individual or individuals. But now our society looks upon sexual harassment not as a civil charge, or even a "malum prohibitum" but as a "malum in se," something that is evil by its very nature.

But sexual harrassment doesn't end with the suspension of 4 year olds from nursery school. We have now taken sexual harassment to the point of labeling it a sex offense on par with rape or sexual abuse--requiring sex offender registration. Few may forget the episode in McMinnville, Oregon, where two 13 year old boys were facing sexual assault charges and possible sex offender registration for slapping the bottoms of female classmates. Fortunately a judge finally exercises some common sense and dropped the charges against the boys.

These boys are old enough to know better, but to charge them (and treat them as they were treated, which involves some possible civil rights violations) as sex offenders simply crossed the line. Yes, the boys deserved punishment, and in this case a school suspension would have been enough for the first offense, particularly since their "victims" did not seem inclined to press charges, testify against and indeed may have been coerced into making their statements. The McMinnville boys may have crossed the line (I remember being their age and pinching and slapping the bottoms of my female classmates and getting pinched and slapped in return--in our adolescent view that was flirting) but can we really say they did? The McMinnville boys say they got the idea from the movie "Jackass" but just as likely they thought it was flirting like I thought at their age.

Is the problem with our kids or with us?

The problem with sexual harassment as it is prosecuted now, is that we have become so overly sensitive that we can't know where the line it and when we have crossed it. Our media is saturated with sexual images, so that while we "empower" our children to think of themselves as sexual beings at a younger and younger age, despite their readiness for such a view, we are at the same time acting in prudish ways when it comes to inter-gender relations. The problem of course with sexual harassment law is that it usually requires some notice be given that a behavior is unwelcome--at least that is what I was taught in the aftermath of Tailhook.

Some behaviors would clearly be unwelcome, such as the grabbing of the breasts or pelvis of a female shipmate. But is the touching of the small of the back sexual harassment or not? What about inadvertent contact done once in tight quarters, such as on a bus? What about foul language (a staple in the Navy)? Where does an off-color joke cross the line? These were difficult questions for a large institution and for a service where everyone was, at least legally, adults. How can we expect our young teenagers and pre-teens to make the same fine line distinctions? How can we expect a three year old to do the same?

Humans crave interaction. It makes us happy to love and be loved, to touch and be touched. But can a three year old really be faulted for hugging a teacher? More importantly, should a three year old be faulted for hugging a teacher?