James L. Payne, a political scientist, is the author of The Culture of Spending: Why Congress Lives Beyond Our Means.
In the debate surrounding the Thomas-Hill episode in the Senate Judiciary Committee, there was one point on which participants seemed to agree, namely that “sexual harassment in the workplace is an extremely serious matter.” Senators from left to right lined up to chant this litany, voicing their support for legislation that regulates such conduct. Only the facts were in dispute: did Supreme Court nominee Clarence Thomas use sexually explicit language in the workplace in an attempt to pressure an employee into a sexual relationship?
Should we consider sexual harassment a matter so serious that we should regulate it by law?Now that the excitement is over, perhaps it’s time to examine the premise of that debate. Should we consider sexual harassment “an extremely serious matter,” a matter so serious that we should regulate it by law?
It’s important to remember what, in the final analysis, legal regulation is. It means that we are prepared to use force against the person who is the object of the regulation. It’s easy to overlook this point because government actions seem so innocent in their initial stages. Usually they start with a letter or document ordering the person to appear at a hearing or trial, or pay a fine. But lurking behind this document is the threat of force. If the person chooses to disregard it, then G-men or state troopers with guns will eventually come to his home. If he ignores them or locks his door, the officers are authorized to use force against him. They may smash his door down; they may seize him and drag him away. If he attempts to defend himself, still more force will be used. In the process, the citizen may be injured or even killed.
When is it right for the state to use force in this way? The traditional answer is that when the individual has initiated force, as in a robbery, rape, or murder, then the use of force is justified, both to restrain him and to deter others from doing the same thing. When the state acts in this defensive way, it plays a force-reducing role, lowering the sum total of violence in the world.
By this test, sexual harassment in the workplace should not be legally regulated because it is not an initiation of force. The woman (or man) who suffers it is not physically attacked. Sexual harassment is not rape. It can be disagreeable, of course. It can even mean that the employee has to resign the job, just as she (or he) would have to resign a job which paid too little. An unfortunate situation, yes, but not a violent one.
What’s wrong, people will ask, with bringing it under government regulation? At first glance, it seems a simple way to fix the problem. But consider the long-run consequences. When policy-makers start to treat nonviolent activities as crimes, government forsakes its role as peacemaker. It becomes a violence-initiator, drawing its guns against peaceful citizens whose behavior it views as unsatisfactory. Now it is adding to the sum total of violence in the world. Furthermore, it sets a bad example. It is encouraging the angry, the unsocialized, and the deranged to imitate its practice of initiating the use of force as a problem-solving method.
Surely it's time to concentrate on controlling violent misbehavior.Sadly, modern legislators have not understood this connection. For generations, they have attempted to correct nonviolent situations by resorting to coercive regulation. From barber shops to schools, from hospitals to farms: The list of do’s and don’ts officially backed by guns has grown to staggering proportions.
Can the law enforcement system stand this ever-increasing load? In the past 20 years, the number of people that federal, state, and local governments have put in prison has more than tripled. Jails are so overcrowded that robbers and rapists are placed on parole. Surely it’s time to concentrate on controlling violent misbehavior. Lawmakers shouldn’t further burden the criminal justice system by making it handle unfortunate but nonviolent problems.