What the Franken "Groping" Photo Says (and doesn't)

What the Franken Photo Does (and Doesn't) Tell Us - "groping" versus "sexual assault" versus "sexual harassment" Unless you've been asleep or in a coma for the last 24 hours, you've heard about what Leeann Tweeden wrote wrote regarding a 2006 USO trip she made with then-comedian Al Franken. And as I'm sure you also know, Senator Franken (D-Minn.) was elected two years later and continues to serve (as of this writing, at least). I'm not going to address one of the two things that Tweeden said about Franken's behavior: namely, the incident in which she claimed that he french-kissed her without her consent. (Of course that's a very serious allegation!) But what I want to do now is focus on the one piece of physical evidence, namely the photo that you see above - and have doubtless already seen. Specifically I want to ask what it does and doesn't mean. 1) If Franken's hands are touching her, this is indeed "groping," i.e. sexual battery. It seems that everyone who views this photo comes up with one of three conclusions: (1) yes, he's clearly touching her torso (breasts, to be specific); (2) no, he's obviously merely pretending to do so, or (3) neither of the above - i.e. it's not clear one way or the other. I happen to be in the third category. But for the sake of analysis, let's assume that he is touching her breasts (or at least the area of her flack jacket that covers them). IF Franken was touching her, there can be no question that this is battery so long as we make the reasonable assumption that she was asleep and did not in any way consent to this act. (For example, if she had planned the "joke" with Franken in advance.) We are all familiar with the more common term: groping. (You can call it sexual assault if you'd like, although in legal terms, assault is not a synonym for battery, as I explain below.) 2) If Franken's hands are NOT touching her, this is sexIST harassment (i.e. gender discrimination), but NOT sexUAL harassment. Let's go the other way, and assume that Franken was only "hamming" for the camera and merely pretending to touch her. Is that "groping?" Is it sexIST harassment? Is it "sexUAL harassment?" Wait a second. Both the terms "sexIST harassment" and "sexUAL harassment" begin with "sex." Both have to do with gender. So why should we make a distinction? SexIST harassment, or harassing someone on the basis of their gender is akin to ethnic or religious discrimination. It means you are treating someone differently because of their gender or religion or ethnic group, etc. SexUAL harassment may indeed include sexIST harassment, but it also usually includes the idea of a quid-pro-quo: i.e. it is normally defined to be in the form of a demand for companionship or sexual activity. However there is another form of sexual harassment which is more akin to what I'm calling sexIST harassment, which the Equal Opportunity Employment Commission defines as creating a hostile work environment (again, quoting from the previous EEOC link): Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). There can be little doubt that Franken targeted Tweeden because she was female. The same scene wouldn't have been in any way humorous (however despicably) had Tweeden been male, because the supposed "humor" in that pose depended on the fact that Tweeden had breasts. (One can quibble about males who grow "breasts" as a result of various conditions, or "moobs," etc, but I think that's sophistry. And we can get into endless pedantic hypotheticals about post-op transgendered people, etc.) The fact that she was unaware of the photo at the time it was taken, and that she and Franken were only working in the same place on a short-term basis makes it harder to argue that the mere existence of the photo creates a "hostile work environment" in the sense of sexual harassment defined above by the EEOC. 3) Yes, it matters how we describe this. So there's no doubt about what to call this, if he was touching her without her consent. (And realistically, there is no reason to believe this was consensual.) So that makes it sexual battery, or "groping" if you prefer the term. Simple as that, end of story. (And as for as I personally am concerned, that should be quite enough to call for the end of Franken's tenure as an elected official.) But if it can be established that he was not touching her, we should be careful about our terminology. You can't "grope" an unconscious person by merely pretending to touch them. Nor can you sexually assault an unconscious person by merely pretending to touch them. In legal terms, assault involves a threat, and it's obviously impossible to threaten an unconscious person. (As a practical matter, this is a pointless distinction because most people use sexual assault as a synonym for sexual battery.) While this is clearly gender discrimination (or sexIST harassment), it is not "sexual harassment" in either the sense of creating pressure for companionship or sexual favors, or in the sense of creating a hostile work environment. And it bears repeating that I am only addressing the photo. This is not in any way to demean or dismiss the kissing allegation, which is serious and substantive. (And in my view, much more serious if in fact there was no "groping" in the context of this photo.)