A Reminder That Non-Consensual Groping Is a Criminal Act, Not Just Bad Behavior

In an interview on ABC News a few days ago, Matt Damon called for the need to delineate between the actions of people like Al Franken and those like Roy Moore. “There’s a difference between, you know, patting someone on the butt and rape or child molestation, right?” he said.

In doing so, Damon made a familiar argument about the behavior of Bad Men (emphasis added throughout):

I mean, look, as I said, all of that behavior needs to be confronted, but there is a continuum. And on this end of the continuum where you have rape and child molestation or whatever, you know, that’s prison. Right? And that’s what needs to happen. OK? And then we can talk about rehabilitation and everything else. That’s criminal behavior, and it needs to be dealt with that way. The other stuff is just kind of shameful and gross.

Putting aside the rest of the bad things Damon said, he was repeating a line that seems to relentlessly pop up time after time in our national conversation about sexual harassment: that acts like non-consensual groping don’t fall under the umbrella of criminal behavior.

Just last Thursday, Vanity Fair’s Joe Pompeo reported on the Robert Mueller-esque probe into Glenn Thrush’s alleged sexual misconduct currently underway at The New York Times. Thrush, one of the Times’ star White House reporters, was suspended from the job after Laura McGann wrote a piece for Vox, where she is editorial director, in which several young women accused Thrush of “a range of similar experiences, from unwanted groping and kissing to wet kisses out of nowhere to hazy sexual encounters that played out under the influence of alcohol.” (One of the encounters occurred with McGann herself.)

According to Pompeo’s reporting, “within the Times itself, the Thrush scandal has created something of a schism” between some who believe Thrush should be axed over the allegations versus those who think his actions do not amount to a fireable offense. This is how Pompeo describes the logic of the latter camp:

The Vox piece, the logic went, castigated Thrush for “bad judgment around young women journalists,” but did not make any allegations regarding sexual harassment, sexually motivated quid pro quo, sexual assault, or predation. (If any such charges were to come up in the Times probe, many suggested, he would obviously lose his goodwill.)

Privately, people in the bureau agree that Thrush embarrassed the Times and deserves public opprobrium; that he is a lousy husband; that his behavior was sleazy; that he should not have brought a 23-year-old Politico journalist to tears on a street corner late at night, as the Vox story reported, after she rebuffed him. They also generally agree that his offenses are not fireable.

What’s left out of this rationalizing is the fact that “unwanted groping” is not just “sleazy.” It’s often a criminal offense. In the District of Columbia, non-consensual sexual contact, which is defined as “the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person,” is a misdemeanor offense.

During the wave of numerous sexual harassment and abuse allegations that have surfaced in the past few months, the types of offenses being reported have spanned an enormous range. And it’s true that among these revelations, when compared with brutal acts of sexual violence, groping would seem like a relatively minor indiscretion. But many times it has been rhetorically lumped into this bucket of “bad behavior”—something that we obviously look down upon morally but that isn’t actually illegal.

Take, for example, the commentary around Franken, who recently resigned as senator after numerous women accused him of sexual harassment allegations, which included groping (most of which he has denied). In The New Yorker, Masha Gessen wrote:

The case of Franken makes it all that much more clear that this conversation is, in fact, about sex, not about power, violence, or illegal acts. The accusations against him, which involve groping and forcible kissing, arguably fall into the emergent, undefined, and most likely undefinable category of “sexual misconduct.” Put more simply, Franken stands accused of acting repeatedly like a jerk, and he denies that he acted this way. The entire sequence of events, from the initial accusations to Franken’s resignation, is based on the premise that Americans, as a society, or at least half of a society, should be policing non-criminal behavior related to sex.

At The New Republic, Elizabeth Drew described Franken’s acts in this way:

But it was less these acts—immature and jerky, to be sure—that threatened to overturn the verdict of the voters of Minnesota, than the fact that the charges were continuing to be brought.

On Twitter, the liberal author and columnist Jonathan Alter said Democrats were conflating Franken’s “boorishness” with crimes and that they would pay the price:

Franken’s case is particularly thorny because many of his alleged acts—groping butts and breasts, forcible kissing—happened in many different jurisdictions, both abroad and at home (for example: touching someone’s butt over clothing is not classified as non-consensual sexual contact under Minnesota law).

But under most laws across the nation, groping is a crime: while it varies by state, forcible touching without consent is often considered a misdemeanor and sentences can include jail time. We already police these acts and, for a good reason, we do it at a different level than more serious crimes like rape, which is generally defined as a felony across the board. According to one national survey by the organization Stop Street Harassment, 23% of women and 8% of men said that they had experienced some type of unwanted sexual touching in a public space. Groping is an all-too-common reality for women, especially those in vulnerable positions, such as domestic workers.

Yet groping is rarely prosecuted, often because few victims report it. This is likely due to a number of reasons: law enforcement is hardly the most trustworthy force for many communities—women of color, undocumented immigrants—to turn to for help. But it’s also because many people don’t realize these acts are reportable as criminal acts. As we continue to have conversations around sexual harassment and assault, language that conflates the alleged behavior of men like Thrush and Franken as just “bad behavior” will only further contribute to a culture of permissiveness, where men are empowered to get away with these acts and more.