Author: Bill Bianco

Politicians and sex scandals have been associated with the United States since its inception. (See Hamilton, the Broadway musical). However, in the last few months there have been an extraordinary amount of allegations, apologies and confessions in politics as well as the entertainment industry. In the flurry of allegations, what has been lost is that much of the conduct alleged is actually criminal. There is a real difference between criminal sexual conduct and workplace sexual harassment. While neither is acceptable nor even remotely tolerable, the consequences are very different. For purposes of illustration, I will use United States Senator Al Franken. Of the many men in the news, I picked Senator Franken because there is an actual picture of Senator Franken’s actions.

Most jurisdictions generally define sexual contact as the intentional touching of the victim’s sexual or intimate parts or the victim's clothing covering the immediate area of the victim's intimate parts. See Neb. R.R.S. §28-318(5). An intimate body part includes the breast. Neb. R.R.S. §23-318(2). A sexual assault occurs when any person subjects another person to sexual contact without consent of the victim, or knew of should have known the victim was incapable of giving consent or resisting. See Neb. R.R.S. §28-320. (Please note that each jurisdiction has its own statutes, but the statutes are normally very similar to each other.)

Based upon the picture alone, a prosecutor would be able to argue that Senator Franken unlawfully had sexual contact with the woman in the picture. Accordingly, he needs to be removed from the Senate. His apology and reporting of himself to an "ethics" committee just shows how Senators and certain others are treated differently based upon their position, political views and financial status. Imagine your daughter was at a fraternity party and a man took a picture similar to Senator Franken's picture. Do you think that man would still be enrolled in college and just reported to the college student disciplinary committee? The young man would be removed from school and charged with a crime. Senator Franken, however, is still a United States Senator!

Since the trip Senator Franken was on when the photo was taken could be considered "work", he could also be subject to a civil case of sexual harassment. There are two types of sexual harassment. The first is commonly known as "quid pro quo" or "this for that". An example of quid pro quo is where there is a promise of promotion if the person performs a sex act. It can also be used as a threat of punishment.

The civil action that could have been brought by the woman in the photograph would be known as "hostile environment." A hostile work environment can be created by one person or more. The civil action focuses on an abusive work environment. Examples that can result in a hostile work environment are discussing sexual activities, crude or demeaning comments, displaying sexually suggestive pictures and commenting on physical attributes and unnecessary touching or gestures.

As we watch the news and "talking heads" blur the lines between actual crimes and civil sexual harassment, please keep in mind that we cannot dilute criminal actions with employment law issues. Law enforcement must take a more active role in the prosecution of workplace sexual crimes. Perhaps if some of these men spend some serious time in jail and are not allowed to hide out in therapy or some "ethics" committee, more men will learn to respect women at all stages of life, something they should have learned when they were just children.