Questing for Atlantis

The Rule of Law. It is the guiding principle of all free, civil societies. It holds that laws are created to prevent certain, explicit actions, and that if those actions are committed then equally explicit punishments are meted out to the offenders. That is the entire principle of justice and the foundation upon which a free society rests.

It is an important concept to understand because certain laws today constitute a gross perversion of justice and an undermining of the entire principle of Rule of Law. The laws being referred to are of course anti-harassment laws, specifically ones concerning sexual harassment, although all forms of anti-harassment law are seriously flawed.

These laws started out innocently enough. Their original intent was to protect workers from being forced to indulge an employer’s sexual desires in order to remain employed, but they have since mutated into something barely recognizable as such. No longer do they solely deal with an objectively defined offense, but attempt to punish subjectively defined action.

According to the law, an action can legally be considered sexual harassment if an individual finds that a single statement creates a “hostile environment” regardless of whether or not it was intended as such or was offensive in the mind of anyone but the accuser. Importantly, the accuser need not have even been addressed by, or be the subject of the comment – overhearing it is enough.

To put this all in perspective, consider what is being said when an individual is found guilty of sexual harassment. What is being said is that he or she made another person feel harassed. It is the only type of conviction that says this. Murderers are not convicted for making someone feel like they were murdered. Thieves are not found guilty of making someone feel like they were stolen from. Even jaywalkers are not punished because someone feels like they crossed outside the crosswalk. Only harassment law is not concerned with objective evaluation of guilt.

The fact that subjectivity is the basis of this law brings in another problem. The American judicial system is predicated upon the principle of innocence until proven guilty. This is impossible however in the case of harassment. Since the so-called crime can only occur if the accuser says it did, then bringing the charge shows that he or she feels they were harassed. The accused starts out an immense disadvantage. Harassment cases frequently come down to matters of he-said, she-said, and since feeling is what matters it is often hard for the accused to prove their innocence.

This is a huge problem. In America’s past there was once another class of crime like harassment. It lacked objective definition. Its proof was subjective evaluation and response. Evidence was almost always minimal. The court actions resulting from prosecuting these cases lead to many deaths and defamation for almost all others accused. Today this is considered to have been a travesty, exactly because of the fact that it perverted justice and rule of law. And just in case it has not become clear, the example was the Salem Witch Trials.

Since the law is so inherently flawed it is no surprise that workplace and school policies concerning sexual harassment, usually being based off of the law, are just as flawed. Seton Hall is no exception to this. According the Student Handbook the range of actions that can classify as sexual harassment include only three types of objectively defined actions (solicitation with offers of reward, coercion, and rape/sexual assault) while there is a wide range of vague, subjectively defined offenses such as “leering or ogling,” “innuendos,” and “sexual teasing, jokes, remarks or questions.” Furthermore the handbook makes clear this is not the limit to possible offenses, making the definition of sexual harassment as broad as your imagination and giving immense power to anyone who would make an accusation, a situation one Seton Hall student who requested anonymity discovered first hand.

The student, who will be called John Doe Jersey, was accused of sexual harassment by a female acquaintance of his. Having gone through the judicial process he is in an extremely good position to comment on it. When asked about his observations of the judicial process he had quite a bit to say.

To begin with he observed that the school’s system is based on the “absurd faith that a person would never make a false accusation.” He didn’t make this claim without reason. As he observed, “the system is already stacked against the accused,” because of the low standard of proof and unjustifiably wide definitions of sexual harassment.

Readers might also be shocked to know that unlike the real world, here at Seton Hall investigations and hearings are kept extremely quiet. In the case of this student, no one outside of the immediate circle of individuals involved had any idea that a charge had been brought or that an investigation was underway.

This silence ensures that there is no media scrutiny when charges are presented, or when a decision is handed down, thus ‘protecting’ the accuser. All that is really accomplished is that the majority of students are unaware that there is a person who brings false accusations against innocent persons, preventing them from avoiding contact in order to shield themselves from such false accusations.

This problem is compounded by the fact that there is no school mechanism to bring automatic penalties upon an individual who brings false charges. If a person, like John Doe Jersey, is found innocent it is up to him to bring any sort of counter-charges for the false accusation.

From John Doe’s experience he asserts that proving these counter-charges is “nearly impossible because you are proving a person’s motive, which that person could simply deny. Even if numerous people come forward and testify that the intent behind the charges was malicious in the end the issue comes down to your word versus your accuser’s.” And of course, since the one who brought the charges is now the one being accused, they receive the benefit of the doubt, effectively shielding them from ever having to face consequences for their actions.

All of this begs a serious question, one John Doe Jersey would like to know the answer to as well. “With there being no consequences to a false accusation, what is there to stop someone from making a false claim to spite an ex or an enemy?” That is the true danger of the current structure of anti-harassment regulations, be they university policies or federal laws.