Google searches for an obscure term “sexual misconduct” dramatically increased in the aftermath of the Harvey Weinstein scandal and our own PM’s decree of the Bonk Ban. In November 2017, Google trends reported that the most common related search at the height of the Weinstein scandal was the question, “What is sexual misconduct?” Unlike the more familiar terms sexual harassment and sexual assault, the definition of sexual misconduct and the forms in which it might present are not readily apparent to most people.
The Dictionary of Ethical and Legal Terms and Issues defines sexual misconduct as, “an umbrella term for any misconduct of a sexual nature that is usually perpetrated against an individual without his or her consent or where the power dynamics of the relationship are being challenged in an effort to redefine the nature or form of consent necessary in a given circumstance. The misconduct can be of various degree, such as exposure, assault, aggressive come-ons, pleading, or even inattentiveness to nonverbal cues of discomfort.”
The difficulty with this umbrella term is its lack of precision. Unlike sexual assault and sexual harassment, sexual misconduct lacks a precise legal definition and is often applied where the two more definite terms are not appropriate. This lack of precision appeals to today’s neo-puritans, as ‘misconduct’ can be defined as any behaviour they regard as ‘misconduct’ at a given point in time. Armed with a term that would be at home in Orwell’s Newspeak dictionary, modern-day puritans use sexual misconduct as a term to achieve through public trial and twitter mobs what can’t be achieved through the legal process.
While we are all entitled to our own views on morality in the workplace, we must be all judged by the same objective standard. That standard is sexual harassment. People often make poor life decisions; they sleep with the wrong people, they sleep with their bosses, and they have affairs because they’re fun and dangerous. People often consent to things they come to regret. However, a regrettable decision to have sex should never be confused with sexual harassment or sexual assault.
The Australian Human Rights Commission defines sexual harassment as, “Any unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated. Sexual harassment is not interaction, flirtation or friendship which is mutual or consensual.”
Herein lies the difference between sexual harassment and misconduct: consent. Sexual harassment grants both parties agency. Both people are considered adults capable of giving consent. A consensual sexual encounter is not sexual harassment. The term sexual misconduct strips one party, usually the woman, of their ability to give consent and makes a scapegoat of the other party.
Recently Monica Lewinsky wrote that the #metoo campaign has made her reconsider whether she was capable of consenting in her affair with former US President Bill Clinton stating, “I’m beginning to entertain the notion that in such a circumstance the idea of consent might well be rendered moot.”
Is this true though? Did the power difference between Lewinsky and Bill Clinton strip her of her agency and of her ability to consent to a sexual relationship? Or did she do what many people do and make a foolish decision that she later regretted? It’s easy to see why Monica Lewinsky would regret her decision after her public humiliation, but does that mean she had no agency at the time of the affair?
Closer to home Barnaby Joyce’s decision to have an affair with a staffer has been described as sexual misconduct, but is it reasonable to end his political career because of a consensual relationship between two adults? When did being a root-rat become a crime? There is no evidence that his relationship with Vicki Campion was undesired by her. Whatever we might think of her preferences in sexual partners, we don’t have the right to strip her of agency.
Ella Whelan wrote in her book, What women want – fun, freedom and an end to feminism, that, “The normal, messy play of sexual relations is being problematised. Feminists encourage women to see every sexual encounter not as a potentially exciting experience, but as something risky and dangerous.” This is made clear in demands that consent be ‘enthusiastic’.
No longer is even a verbal ‘Yes, I would quite like some sex now, please’ sufficient. According to Canadian website Yesmeansyes.com, “Consent is a whole-body experience. It is not just a verbal ‘yes’ or ‘no’ – it involves paying attention to your partner as a person and checking in with physical and emotional cues as well.” This new definition of consent puts unrealistic demands on the capacity of horny men to discern their partner’s desires.
Netflix celebrity and self-proclaimed male feminist Aziz Ansari found himself at the centre of a sexual misconduct scandal after a woman he briefly dated gave an anonymous interview to Babe.net, claiming that she had felt uncomfortable at how fast things had escalated. The woman, ‘Grace’, both gave and received oral sex from Ansari, however, she also claimed she had provided Ansari with both verbal and non-verbal cues that she was uncomfortable with how the evening was proceeding.
Some might argue that a woman going back to a man’s apartment and performing oral sex on him might be considered consent. Not according to advocates of enthusiastic consent, who demand that a gentleman should continually ‘check in’ with a lady’s physical and emotional cues. Yet if the lady is a Monica Lewinsky or a ‘Grace’, even the most diligent ‘checking in’ might not prevent the lady’s later feelings of regret. And what if I’m bad in bed and can’t pleasure my date? Is she still consenting? What if I fail to meet her emotional needs over breakfast the next morning? Will her disappointment turn to regret, and thus a case of ‘misconduct’? How do I judge the ‘whole-body experience’ of a woman I barely know?
Fortunately, a Dutch tech company has used the miracle of the blockchain to solve this conundrum. Legal Flings is an app that uses smart contracts to ensure both parties have consented. It allows both parties to agree on every detail of a sexual encounter. Admittedly, this is not the most romantic approach; it’s hard to imagine Giacomo Casanova pulling out a legal scroll during one of his seductions. But then again, to the neo-puritan Casanova is no doubt ‘problematic’.
Sex should be fun, adventurous and even dangerous. People have always craved the forbidden. Seduction has always involved risk; women want to be desired and to have men brave adversity to earn their affection. There’s a reason why nice guys finish last; no woman wants a coward. However, there is a difference between seduction and harassment, and that’s why we protect against sexual harassment and assault. Sexual misconduct muddies the line between the two and strips the individual of the agency and ability to provide consent. It assumes women are incapable of saying no. It places the burden of responsibility on men and treats women as children. Both men and women deserve more respect than the definition the neo-puritans provide.