Harvey Weinstein and the Matter of Sexual Consent

Google+ and Face Book are all a twitter (especially Twitter) over the Harvey Weinstein news. No one in this second decade of the 21st Century should be surprised there is sexual predation (of various kinds) in the entertainment industry, (of course not only entertainment, and not only in the U.S). This sort of thing has been going on for thousands of years, and “entertainment industries” (along with a few others) are particularly known for it. There were casting couches long before women were even allowed to act on a public stage! Joseph Goebbels of Nazi propaganda fame had perhaps the most infamous casting couch in all of the world for a decade or so. Now it’s Harvey’s turn. The surprise here, like that of actor Bill Cosby, was not that such behavior occurs, but rather the lengths (depravity and illegal acts) to which it went and the time over which it was able to remain only rumor in the public view.

My question here is not ethics. I am not aiming at what should be the case but at a description of what is the case. What is the case includes a cultural context. It assumes that adult men and women understand (either by direct experience, experience passed down from peers or mentors, and by other indirect means) the cultural context in which they have grown up and now circulate. My question is, given this cultural context, and in particular the cultural context of the modern global “entertainment industry”, at what point in a social encounter between a man and a woman (this might be a man and a man or a woman and a woman. Sexual orientation is immaterial) has there been a sexual consent between the parties involved?

In particular I have the following scenario in mind. A man and a woman run into one another in some public place (typically this turns out to be a big hotel or convention center with hotel attached). They engage in conversation. At some point in the conversation the man (typically) invites the woman to a private meeting in his room. For now I leave open whether the invitation was open ended, “come in for a night cap”, or given some specific non-sexual rationale, “I would like to talk to you about project X”. But this certainly makes a difference to the implications of consent.

In the context of present western culture, an open ended invitation to a private meeting strongly suggests a sexual motive on the part of the inviter. It doesn’t matter if the inviter is a person with whom the invitee has no prior relationship, or they are related as (roughly) employer/supervisor (presently or in the future). If the invitation is open ended, sex is implied and consent is at least provisionally given if the invitation is accepted. ‘Provisional’ comes down to “awareness and assent to the [future] possibility of some sex. The later is signaled by accepting the invitation. I’m not going to be specific about what ‘sex’ comes out to. For my purposes any non-accidental contact between bodies still clothed is the beginning of sex.

Even where there is explicit consent, “consent to what exactly” remains unspecified. Human sexuality can take some strange turns. I am going to accept the principle that a genuine sort of free will is in play on the part of each of the parties. Philosophers call this compatibilism. It means “you are free if no one is forcing you to choose by putting your physical well being in jeopardy. If one party has been incapacitated or is otherwise unable to make a knowing (not necessarily rational by all standards) assent to subsequent behavior amounts to rape. A sexual encounter that isn’t rape tends to unfold in stages. If there is provisional consent it must be remade at each stage of the process. Provisional consent becomes actual consent when each and every step of awareness of possibility is accepted. Either party may “withdraw consent” at any stage. A sexual encounter need not begin as rape to become rape.

Does any of this change when the invitation is not open ended? A non-open ended invitation typically involves an excuse to  meet in private that isn’t sexual. The difference in terms of our subject depends on the legitimacy of the excuse. It is not enough that it is not a lie. To make a difference there must be good reasons why the matter cannot be discussed or seen in a more public place. If the excuse is to look at art, and the invitee is an art dealer, there is diminution of any consent  (implied, provisional, or otherwise) of a sexual nature. Yet each person must, under the circumstances, be at least aware of the potential for sexual engagement. But in this case, awareness and accession in the form of accepting the invitation need not imply any sexual consent.

In the supervisor-employee case the invitation itself is, at least now in the public face of American corporate culture, including the entertainment industry, already ethically compromised. Supervisors (and employees or potential employees) are just not supposed to do that. That it is done must only strengthen the sexual implications of the invitation from the cultural perspective. In the physical context in which these meetings typically occur (Western hotels) there is almost no reason why business cannot be discussed in a place other than a private room.

Excuse or not it remains true that such an invitation must remain suspicious from its inception. Being given an excuse is not justification for being blind (or turning a blind eye) the the strength of the socio-cultural implications of such an invitation. While we should not assume that a motive (desire for the job) by itself implies even a provisional sexual consent, cultural norms have to count for something! It cannot be that young women older than about 16 can be unaware of sexual predation.

It might be illustrative here to examine this situation where one party is a child. The presumption here is that, if not sufficiently old (and so culturally experienced), the individual concerned will lack the capacity to make a knowing decision as concerns either a private meeting or for that matter anything proposed or attempted in such a meeting. This is especially true precisely because it might be very difficult for a child to resist even purely psychological pressure to consent from the adult even knowing, however vaguely, some of the proposal’s implications. Can this consideration (which to everyone seems reasonable) not apply to the power relation between a significantly powerful adult employer or supervisor and a much younger, if still technically adult, person? It seems reasonable to say that it could. There might be a continuum of provisional consent from a “vague notion something sexual is intended” to “full knowing assent” depending on both the experience (taking age into account) and motives of the invitee. But the achievement of adulthood itself implies “some knowing” consistent with the social circles in which one travels.

Of course sexual harassment (and propositions that are not harassment in the legal sense because they are not unwelcome) happens in many contexts outside hotel lobbies and rooms. Literally on the street it occurs between the harassed party and an unknown person we call a “pervert”. But it also occurs in more formal social settings, an office, or restaurant perhaps where an employer speaks the words “the promotion is yours if you sleep with me (in some as yet unspecified private setting)”. Of course, intent is (or should be to an adult) clearer in these cases. Accepting the offer (because the sexual motive is so strongly implied or even made explicit) in these circumstances amounts to more than mere provisional consent. It does not mean that consent is open ended. It remains true that what the proposing party has in mind might, when the time comes, be unacceptable to she (typically) who accepts the initial proposal.

This last consideration does not change merely because the propositioning party holds potential (present or future) power over the invitee. The degree of “provisional consent” being given depends, in the final analysis, on the strength of the implied sexual motive. That information is cultural. When the proposal comes from a party who has power (financial, political, or otherwise) over the invitee cultural conditions, especially in but not confined to the entertainment industry, virtually guarantee that some sexual motive is implied even where there is an ostensible, non-sexual, excuse. There remains a potential continuum of “provisional consent”. Even where knowingly given it is not open ended.

Given a powerful manager-employer the degree of consent comes down to capacity (affected by age and innebriation) and prior experience. A 60 year old employer propositioning a 25 year old employee (who accepts) might imply a minimal provisional consent. The same acceptance on the part of a 45 year old employee implies a much more robust consent. The 25 year old might not have (though she is presumed to have) “an awareness” that there is a sexual implication in the invitation. The 45 year old will of a certainty be aware.

So I ask how does this all apply to what Harvey Weinstein did to young actresses for years? On Harvey’s side, the first proposition (to an adult actress) is not, technically, harassment. To be harassment, the proposal must be unwelcome and there is no way for the proposing party to know this until he (typically) is rejected. Once rejected, further proposals constitute harassment as understood in today’s corporate culture, including the entertainment industry.

Harvey’s [metaphorical] crime was not propositioning young actresses in exchange for favors. It was the extent, frequency, and blatancy of his proposals followed (sometimes?) by sexual requests of a aberrant nature after provisional consent (actress goes to his room) is secured. There is a saying that goes back to the twelfth century when the Catholic Church decided that celibacy was to be the order of the day among clergy: “If you cannot refrain, be discreet”. Harvey is guilty of being indiscreet.

Did Harvey commit an actual crime? If he propositioned anyone under age, he did. If he incapacitated his intended even by merely permitting her to drink too much “of her own free will” (if one or both parties are incapacitated, subsequent sex is non-consensual anyway), he did. If he talked his way into an actress’s room and raped her, obviously he did. Harvey stands accused of all of these literal crimes, but the most of the complaints against him do not include any of these. Men (including Harvey) inviting women to hotel rooms without accompanying criminal behavior is far more common than any of these crimes. The issue comes down to what, by culture, adult women should know when a man invites them to a room.

There is a recent story of an actor doing an interview in a crowded hotel restaurant. Noise made the interview difficult. The actor suggested the interviewer (a woman as it happened) come to his room to finish. Here is the punch line: he was so concerned about the implications of the invitation that he offered to bring a third party of her choosing to the room. Here we have a legitimate reason to leave the public place and no sexual implications were intended. This story, heart warming as it is (and true the actor is David Schwimmer), is a rare exception. Young actresses invited by senior authorities in their culture to a private meeting should know by the time they get to be young actresses, that some sexual motive is implicit in that invitation.

Can I be wrong about this? Can it be, perhaps, that the most I can claim is that these actresses were aware of sexual implications, but were not thereby consenting (even provisionally) to “some sex”? I do not think so. Awareness plus acceptance of a proposition likely to have sexual intent amounts to, if anything ever does, consent to the possibility of some sex. It is by no means a final consent to sex, but the excuse that one simply “had no idea” is patently absurd.

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