NY weighs making sexual harassment a crime; would be nation's first

ALBANY — Sexual harassment is prohibited under state and federal law, but it’s not a crime. Two bills in Albany would change that by creating the nation’s first sexual harassment crime, punishable by jail time rather than fines or firing allowed under civil law.

The bills would elevate sexual harassment to a Class A misdemeanor, punishable by up to a year in jail. It would be a powerful new tool to address the misconduct now handled by negotiations with employers, through government agencies under civil law or by lawsuits, advocates told Newsday.

One bill, sponsored by Assemb. Rebecca Seawright (D-Manhattan) was revised in March as Gov. Andrew M. Cuomo faced repeated allegations of sexual harassment against women, most of whom had worked for him. Seawright's bill would create the misdemeanor of "official misconduct of sexual harassment," but is restricted to state legislators. But she said her bill is just a first step.

"We have to look to strengthen our sexual harassment laws in general, so I think this bill is the right direction," said Seawright, who is chairwoman of the Assembly Task Force on Women’s Issues. "It’s timely, it’s sensitive, it’s a difficult subject, but it has to be tackled … now is the time to really jump and act on laws that are outdated like our penal code and respond to the times we’re in by updating our laws."

Seawright’s bill would apply to state legislators who make "unwelcome or unwanted sexual advances" requesting sex for favorable treatment at work, and for speech "creating a work environment that is intimidating, hostile, offensive or coercive to a reasonable person." It aims to make New York "a national leader by setting a high standard for workplace misconduct," according to the bill.

In the accusations against Cuomo, the women say he gave them unwanted attention, including kissing and touching their backs, flirtations, and questions about their romantic relationships. One unidentified woman told the Albany Times Union that Cuomo groped her in the Executive Mansion in Albany. Cuomo said he never sexually harassed anyone. He said he was just engaging in caring banter and joking to break the intense pressure of the executive chamber. He said he never had inappropriate sex or contact with any woman.

Another bill would create a misdemeanor for slapping, striking or kicking someone for sexual gratification. The bill is sponsored by two of the Legislature’s progressive leaders, Sen. Alessandra Biaggi (D-Bronx) and Assemb. Yuh-Line Niou (D-Manhattan).

The misdemeanor would require the sexual harassment to be done "with the purpose of sexual arousal or gratification and without consent." The bill states a person who commits the proposed misdemeanor "slaps, strikes, shoves or kicks another person, or otherwise subjects such person to physical contact, or attempts to threaten" to do so.

The bill arose after then-state Attorney General Eric Schneiderman abruptly resigned when a 2018 article in The New Yorker accused him of physically abusing women without their consent. Schneiderman said he had engaged in consensual role-playing with the women. He faced no criminal charges.

"Establishing a new misdemeanor offense … is a crucial step toward ensuring our laws protect all victims of intimate partner violence and recognize the lasting harm these acts of abuse cause," the bill’s sponsors stated.

Currently, the act of sexual harassment results in criminal convictions only if the incidents rise to the level of other crimes such as sexual misconduct, rape, menacing or harassment and are proved beyond a reasonable doubt. Those crimes often require a threat of life or persistent abuse or assault.

A lesser standard of a "preponderance of evidence" is required to take civil action against a harasser.

The proposals follow a string of scandals in the State Legislature over the last 20 years. The scandals led to resignations by several legislators and some sexual abuse convictions as well as legislative reforms such as limiting the use of interns. But recent years saw the crumbling of the so-called Bear Mountain Compact for state legislators. The compact meant any talk of extramarital sexual relationship, trysts or come-ons that happened north of the Bear Mountain State Park in Rockland and Orange counties stayed there.

The proposals seek to illuminate the gray areas of sexual harassment that contribute to many cases not being reported. In addition, half of the sexual harassment cases reported to the federal Equal Employment Opportunity Commission end in "no reasonable cause."

"It’s clear that we need to examine our laws on sexual misconduct," said Erica Vladimer, co-founder of the Sexual Harassment Working Group of former state workers who helped force improved laws and practices to combat sexual harassment. "I think there’s merit to looking at all civil and criminal laws in holding abusers accountable."

Past efforts to create a crime of sexual harassment have withered in Albany and other state capitols. But in recent years momentum has built nationwide to deal with misconduct amid the #MeToo movement that exposed widespread sexual harassment and assault in Hollywood, government, education, media and other businesses.

"It’s fascinating that New York is going in this direction," said Abigail Saguy, professor of sociology at the University of California at Los Angeles, who has researched sexual harassment in the U.S. and in Europe. "We’ve never had a criminal sexual harassment law in the United States … when you start to say something is a crime, that carries a lot of weight in terms of sending a message that it’s not OK. I think that would be the greatest benefit."

France started moving toward a crime of sexual harassment in the 1990s, although early versions of the law were struck down by courts as too vague, Saguy said. The final version was adopted in the European Union in 2012. It defined the crime of sexual harassment as "the act of imposing on a person, in a repeated fashion, words or behavior of a sexual connotation that either undermines his or dignity because of its degrading or humiliating nature or creates and intimidating, hostile or offensive situation for him or her."

New York’s proposals could get their first debates and possible revisions in this legislative session, which is scheduled to end June 10.

Saguy, for example, said the Biaggi-Niou bill is both overly broad — proving "consent" is difficult; and too narrow — focusing on physical abuse.

"A lot of times sexual harassment as it plays out is sometimes just a comment, it’s a glance, it’s a pattern, it’s using one’s position to create an environment that makes someone feel demeaned," Saguy said.

The Seawright bill would cover those acts, but applies only to state legislators.

"No one solution is going to suffice," Saguy said. "We need to get at these things from different angles … public discussions are always good and people have to deal these taboo issues," she said. "I think additional conversation is warranted."