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Deborah Tuerkheimer

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Daniel Rodriguez

Daniel B. Rodriguez is the Harold Washington Professor at Northwestern University Pritzker School of Law. He served as dean...

Episode Notes

What started out as a viral moment has grown into a movement that has resulted in both praise and controversy. But what are the legal considerations of the #MeToo movement? In this episode of Planet Lex, host Daniel Rodriguez talks to Laura Beth Nielsen and Deb Tuerkheimer about how the #MeToo movement differs from similar assault accusations in the past, the role President Trump may have played in the movement’s growth, and the impact the movement has had on public discussion surrounding sexual harassment and assault. They also look at the movement through the lens of the law, looking at what the law has to say about enablers and witnesses, the importance of modernizing the laws surrounding rape, and the adequacy of societal punishment.

Deborah Tuerkheimer is the Class of 1940 Research Professor of Law at Northwestern Pritzker School of Law and an expert in criminal law, evidence, and feminist legal theory.

Laura Beth Nielsen is a research professor at the American Bar Foundation as well as a professor of sociology and director of the Center for Legal Studies at Northwestern University.


Planet Lex: The Northwestern Pritzker School of Law Podcast

The #MeToo Movement Through a Legal Lens



Intro: Welcome to Planet Lex. The Podcast of Northwestern Pritzker School of Law, with your host Dean Daniel B. Rodriguez, bringing it to you from Chicago, Illinois. Take it away Dan.


Daniel B. Rodriguez: Hello and welcome to Northwestern Law’s Planet Lex podcasting from the Northwestern Pritzker School of Law in Chicago. I am your host Dean Dan Rodriguez. We are recording this in late January 2018. My guest today are Northwestern faculty members Deborah Tuerkheimer and Laura Beth Nielsen, joining me to discuss the #MeToo movement, and the role of the legal system in the current moment of cultural reckoning.

Deb Tuerkheimer is the class of 1940 research professor of law here at Northwestern. Prior to her academic career she served as an Assistant District Attorney in the New York County District Attorney’s Office where she specialized in domestic violence prosecution. She is the author of “Flawed Convictions: ‘Shaken Baby Syndrome’ and the Inertia of Injustice,” and a co-author of the casebook “Feminist Jurisprudence: Cases and Materials.” She has written numerous articles on sexual assault and domestic violence.

Laura Beth Nielsen is a Professor of Sociology at Northwestern University. She’s a research professor with the American Bar Foundation and Director of Northwestern University’s Weinberg College of Arts and Sciences Center for Legal Studies. Laura is an expert in the areas of sexual harassment in the workplace and beyond, employment civil rights of all sorts including pregnancy, pay, race, sex and national origin. She is the author of several books including ‘License to Harass: Law, Hierarchy, and Offensive Public Speech’, ‘The Handbook of Employment Discrimination Research: Rights and Realities’, and hot off the presses, ‘Rights on Trial’ from the University of Chicago Press. Thank you both for being here.

So we are in an obvious cultural moment. The Harvey Weinstein story broke in October, the MeToo#, which as I understand it was created by activist Tarana Burke a book a decade ago went viral, put it mildly. Women have been publicly sharing their experiences of everything ranging from workplace harassment to violent sexual assault.

As scholars we have covered these issues for a while, let’s just jump in on this and I’d like to ask both of you to talk a little bit about how this moment feels different, how it is different than moments in the past? Deb?

Deborah Tuerkheimer: Well, I think it feels more different than I would have anticipated. If you had asked me when the Weinstein allegations first surfaced where we would be in a few months, I would have expected that the conversation would have petered out.

Daniel B. Rodriguez: About Harvey and then moved on.

Deborah Tuerkheimer: That’s right. These were some high-profile famous, beautiful actresses coming forward and their stories would make a splash. That’s no surprise, but the fact that this conversation has been sustained over the course of these months, the conversation has evolved over the course of these months, has really sort of seeped into so many conversations that we’re having publicly, that we’re having privately. To my mind, this feels different and this feels like a movement that that has legs and that will be with us for some time to come.

Daniel B. Rodriguez: Laura Beth.

Laura Beth Nielsen: I agree when it first started taking off around the Weinstein story, I also thought this will peter out. There’s a lot of titillating stuff going on here with people that we think we know and we like to look at, and so it’s — it’s really been a pleasant surprise actually that it’s become so, so much a part of every conversation we seem to be in. And of course that leads to issues that I’m sure we’ll talk about, about the conflating of what is legally punishable versus what we are deciding is no longer socially acceptable but sort of the consciousness change is dramatic.

Daniel B. Rodriguez: Are you surprised to both of you that this didn’t happen in the same way and with the same amplification around the Bill Cosby issue, not to minimize the public discussion about that. But why didn’t MeToo rise up as it were in the light of the Cosby allegations? After all to come back to something Laura Beth just said, the victims were folks that most of the rest of us could more readily identify with on some fundamental level. Deb, you’ve written a lot about Bill Cosby Imbroglio.

Deborah Tuerkheimer: I think that we can look at the Cosby case as maybe one of the many precursors to this conversation. I think that you could draw a line between the many, many women, coming forward and accusing Bill Cosby of sexual assault and what we’re seeing now.

Frankly what happened in the interim is the election of Donald Trump as President and I think and I’m certainly not the first to suggest this that there is a relationship between the election of someone who is a serial sexual harasser and who has committed sexual contact without consent by his own acknowledgment, and the movement that we’re seeing now. And I think there’s widespread anger, there’s rage, there’s disgust on the part of the women who have fueled this movement in this conversation.


And so, going back to your question, Bill Cosby happened and it contributed to a sense that sexual violation is widespread and we ought to pay attention to it. But President Trump I think catalyzed this conversation in ways that really have no parallel.

Daniel B. Rodriguez: Before we leave Cosby, let me ask you about something that you commented on just in the last few days to the New York Times. You said that, the Cosby trial, which of course is ongoing, the retrial as it were, will look different and really be different in light of this MeToo movement. Can you say a little bit more about that?

Deborah Tuerkheimer: Yeah I would expect given that these are jurors that are drawn from the general population that the Me Too conversation will have sort of shifted the frame in really important ways. The credibility of Andrea Constand, the complaining witness in that case may be judged differently. Now, that we as a society seem to have come to terms with the idea that women are not usually or generally lying when they make these accusations. The sense that this matters I think may have shifted, that norms weren’t all that different back then.

Of course, much of what we’re talking about in the context of Harvey Weinstein happened many, many years ago. And yet there seems to be a sense that it matters that what he did was wrong, that it was wrong then, it’s wrong now and so, to the extent the Cosby mistrial may have resulted from the notion that it was so long ago that we can’t hold him accountable. I suspect that that’s not going to have the same sort of persuasive power post MeToo.

Daniel B. Rodriguez: It’s very interesting. I mean maybe a small point in the grand scheme of things, but in the early days, maybe even the early hours, after the Weinstein news broke, you recall that there was and I think it was Lisa Bloom was quoted in her very short term as his lawyer advisor, making essentially that defense, right, well you can’t truly hold him accountable for norms that were different 20 or 30 years ago. And it was nanoseconds before that defense sort of faded before our eyes just to your point.

Deborah Tuerkheimer: Yeah I think that dinosaur defense is not going to sort of have a lot of persuasive effect. The last thing I’ll say about Cosby is that our understanding of the dynamics involved in professional advancement, I think our understanding has evolved in that score. And so to the extent the jury or particular jurors may have had trouble understanding Andrea Constand’s dilemma and sort of the difficult situation that she faced in dealing with Bill Cosby before and after the alleged incident; that maybe a little bit easier for them to fathom.

Daniel B. Rodriguez: Laura Beth you’ve written about workplace harassment specifically, how does that resonate with you?

Laura Beth Nielsen: Right. I think one of the other interesting things that’s going on in this new moment is there is a belief in multiple women coming forward as verifying what happened, as opposed to oh, these folks are coming forward because they want a piece of this action and they’re going to get all this money in a lawsuit.

There’s now sort of a growing recognition I would add the Nassar sexual assault of the U.S. gymnasts. There’s now a growing recognition that these predators whether they’re in the workplace or school, have multiple victims and that it’s not sort of jumping on the bandwagon, it’s confirmation of this person’s tendencies. So I think that is a really exciting change.

Daniel B. Rodriguez: On that multiple front as we’re recording this, this is just really the same week in which Nassar is sentenced for these horrible crimes, and what we’re discovering right and what’s unfolding before our eyes is not only the multiple victims, but the multiple enablers. Right the accountability is it were that comes along in the case of Nassar yesterday as we speak, the President of Michigan State resigned a few hours ago the athletic director of Michigan State resigned.

So that sense of so many folks knew for so long, whether it’s Weinstein, whether it’s Nassar, whether it’s many others, it’s really quite jarring. Let me ask — let me pivot then to the law and talk a little bit about the law and just on this theme of enablers. What is our law, our Federal and State Law provide in terms of accountability for the whole web of folks around these serial harassers?

Laura Beth Nielsen: Well certainly in the case of minors, the Nassar case, right, these are people who are entrusted with minors, it’s child sexual abuse. I’m sure they’re mandated reporters through — I mean we are as university professors, were mandated reporters. So I can’t imagine anyone in an athletic sort of club or team or the US Olympic, I’m sure, has requirements.

In the workplace it’s a little more complicated, right. So the burden is on the workplace itself to have a set of policies and practices that allow the victim of harassment to complain but it doesn’t place affirmative obligations on sort of people around the harassment to report it, unless they’re in management or they’re in human resources.


But if you’re just witnessing it, it’s not your obligation. It may be your obligation to participate in an investigation should one start, right, that’s often in employee manuals and that kind of thing that if there is an investigation, you’re duty-bound as an employee to help find out what went on.

Daniel B. Rodriguez: So to be fair to characterize to use the phrase that that’s been conspicuous for, look at least a quarter century, the right to be protected against a hostile work environment. But at the same time that doesn’t carry along with it, I’m hearing you’re saying a set of remedies, easy off-the-rack remedies as it were that provide duties on individuals in that work environment. It actually takes some positive steps.

Laura Beth Nielsen: That’s exactly right. We have what social scientists, political scientists call a Litigious Policy. We require that the woman or the target, and of course it can be a man, that the target of sexual harassment bring a lawsuit or a complaint to either HR, the EEOC, the State Agency and the onus is really on the target of the harassment to do the work of, both proving it and demanding a remedy.

Daniel B. Rodriguez: So we know from the statistics that a tiny fraction of these cases go to trial and in truly a tiny fraction of those cases result in a verdict and result in some recompense to the victims.

Deb, I want to switch to you who actually was in the trenches as it were in prosecuting these cases. Why so few? What have been the principal obstacles to bring in these cases to trial?

Deborah Tuerkheimer: Well there’s a huge problem of underreporting. So these cases, for the most part, don’t even enter let’s say the criminal justice system, just to focus on that system for the moment. And there are all sorts of reasons why victims of sexual violence choose not to bring the allegations forward, primarily, and this is what I’ve spent most of my time recently studying is the problem of disbelief. And so there’s widespread skepticism and this has been baked into our law for centuries; widespread skepticism of complaints of sexual violation and so this breaks unevenly on the backs of the most vulnerable among us.

It’s true generally with regard to non-stranger rape but it’s true particularly with regard to women of color, poor women, LGBTQ folks and sex workers, as well.

Daniel B. Rodriguez: Can I just press on that point. So take sexual harassment that is less than and I use those words carefully, less than rape in the traditional legal form, varieties of harassment, serious harassment to be sure is the disbelief that the events and episodes happened or disbelief that this had a significant negative impact on the victim.

Deborah Tuerkheimer: It’s both. So I think that there you can try to parse it out but at the end of the day this overlaps. There’s a sense that the individual is lying about the account or that it really doesn’t matter that the violation wasn’t sufficiently severe for us to care deeply about it, for us to do something as a state or as an employer to do anything about it. Because this was trivial and the complaining is really sort of overwrought that there’s exaggerating of the violation that this individual wasn’t particularly harmed. And so again, it’s — when you sort of look at some of the qualitative research that’s been done, particularly where I’ve looked with police officers, the interviews seem to sort of conflate a lot of this but what ends up happening is unfounding of these cases. They don’t go forward.

And so I think that victim, survivors choose at the outset not to subject themselves to this kind of scrutiny because the sense is and this is based in reality that it’s unlikely that this is going to proceed. And you see this kind of case attrition at every stage in the process and so you see it with regard to arrest, and you see it with regard to prosecutorial decision making and then you get to a jury and you face the same kind of skepticism.

Daniel B. Rodriguez: So the skepticism is all the way in the system, as a prosecutor?

Deborah Tuerkheimer: Absolutely.

Daniel B. Rodriguez: So let me ask both of you the question if you had your choice of two or three concrete legal reforms, you look at the big picture, and I’m talking here about both take your pick, whether the criminal justice system, the civil justice system, what are some of the key reforms that ought to be implemented?

Laura Beth, we will start with you?

Laura Beth Nielsen: I think one important thing to look at is the nature of confidentiality agreements around settlements. This is what we saw with Weinstein in our research, we heard about it in a lot of workplace scenarios where someone makes the sexual harassment complaint. There’s an arrangement is reached but it’s a closed settlement, nobody knows it happened. It makes it much more difficult for the lessons learned to make their way back into the workplace culture.


Now, of course the presumption in law is well, the business knows that that person’s harassing behavior cost them money in this settlement and so they’re going to try to remedy the situation. But it doesn’t do anything for the ordinary people around that person in the workplace. So, I think really thinking about confidentiality and settlements is really important. I think lowering the burden of proof, reducing the burden of proof in some way.

Daniel B. Rodriguez: Which the Supreme Court has made it hard to do, right?

Laura Beth Nielsen: Yes, very hard to do but it’s — you have to have such good sort of what you would think of as smoking gun evidence, and the fact of the matter is people don’t telegraph their racism, sexism, they don’t tend to put it in writing. You don’t have the memo that says let’s not hire women for this job or have sex with me or you don’t get the promotion. It’s something —

Daniel B. Rodriguez: That’s he said, she said.

Laura Beth Nielsen: Yeah it happens in private and it makes it hard to prove.

Daniel B. Rodriquez: Yeah.

Deborah Tuerkheimer: Well, I’m glad to get to go second because I agree with everything Laura Beth said and now I can focus on the criminal justice system and reforms on that side. I would — you ask for two, I’ll give you two. The first continuing reform of the statutes that define what’s prohibited with regard to sexual assault and so we’re seeing that rape law is being modernized, we’re kind of in the midst of a lot of work to attack the retrograde foundations of rape law but that work is unfinished and I’m thinking about the forced requirement that endures in about half the states.

I’m thinking about really difficult conversations that we need to be having about consent and how that gets defined. And so while going back to a point that you made earlier Dan, I completely agree that we should be talking about sex that’s problematic, that’s not rape. We also need to deal with the problem of sexual assault and we need to fix our criminal justice system that frankly was designed to protect chastity and was designed to protect the property interests of white men. So there’s a problem and we need to modernize rape law.

On the enforcement side, the Obama Administration put out a set of really helpful guidelines for combating gender bias in policing and unfortunately is not able to kind of implement those guidelines or enforce them in any way, but they’re here and they’re helpful and I would love to see going forward greater attention to ways in which we can work on some of these biases that play themselves out in the enforcement arenas as opposed to the arena of substantive legal definitions.

Laura Beth Nielsen: And the same for sexual assault on campus, right. The Dear Colleague Letter from the Obama Administration to universities about campus sexual assault has now been rescinded under the Trump Administration, but it’s still there and universities can decide that they want to or police departments or workplaces can decide that they want to be at the forefront, they want to be the leader, they want to be the cutting edge of equality at school, at home, at work. And so they’re still there, just because they’re not operating as sort of quasi-law, doesn’t mean you have to follow.

Daniel B. Rodriquez: And it’s interesting, if I interpret what you’re saying correctly is both the Dear Colleague Letter in the context of college and universities and the gender policing, rests on legal foundations which is to say they are after all interpretations of our nation’s civil rights laws.

Laura Beth Nielsen: Yeah.

Daniel B. Rodriquez: So in that sense they require. Let me pivot away from the law if I may to what’s become a quite controversial subject really in the last few weeks, even days and that’s the so-called MeToo backlash. So many of these essays begin with some version of you could just expect this would happen. Is there’s been an overcompensation, harkening back to phrases like sex panics, this is about sex panic. So Catherine Deneuve says, it’s just — it’s about the undermining of eroticism in various ways and I suppose there’s a lot of different ways to chop these reactions up. It seems to me that a lot of these essays fall into two categories. Number one is, this is an overreaction and some versions of sex panics, and the other is the punishment doesn’t fit the crime in some ways. Could you reflect a little bit on, on something — I won’t ask you about some of the specifics so that I’m sure you’re familiar with, but just this recent emphasis that seems to come from the media both men and women that we’re going too far.

Laura Beth Nielsen: Well the attack on eroticism I think — it’s very deeply felt by the people who I’ve had conversations with about it and yet I think we’re in a new moment where we are talking about sex and sex acts more openly and we’re in a moment where we are understanding consent to be ongoing and affirmatively given at all points.

So there is going to have to be conversation during the sex act. If somebody wants to go from say oral sex to vaginal sex or vaginal sex to anal sex, those are moments where there does have to be a conversation in that moment.


And I just — I can’t understand the idea that you wouldn’t want to be communicating with your partner about these steps that are going to be taken.

There are all these different things that are — students have these consent apps where they can say what they’re consenting to and it gets recorded on a server somewhere. So there are all these defensive strategies for young men who are afraid of — that they’re going to be accused, but the much larger problem is unreported sexual assault.

Daniel B. Rodriquez: But the criticism that goes beyond the eroticizing the sex also goes to its stripping women of agency, right. So some of this, if I’m a feminist backlash, who seems to come from the notion that you’re infantilizing women from having precisely the kinds of conversations over the course of the sex acts in a way that would be empowering.

Laura Beth Nielsen: I just see it as exactly the opposite. The empowering thing is saying we’re going to be equal partners in this, in these sex acts and you’re a full participating person who gets to say what you want and you don’t want.

Daniel B. Rodriquez: Yeah.

Deborah Tuerkheimer: I agree I think that the way we think about agency is complicated but in some of these conversations I’ve been struck by the ways in the more kind of agentic construction is to say that women can behave sexually, they are able to express sexual desire and sexual preferences, and to the extent they aren’t. That’s a problem and we need to take account of that and we need to figure out ways to move closer to a world in which there’s gender equality and the construction of sexual norms is more egalitarian and we ought to sort of strive for that.

So I guess I think there’s quite a bit of agreement, at least it’s sort of within the kind of feminist conversation that’s going on right now. It doesn’t always get framed that way but it seems as if we generally agree that female sexual agency is a good and that feminists and people who don’t even identify as feminists should care about that and then we’re not there yet and that’s a problem, and so how do we get from here to there.

Daniel B. Rodriquez: I don’t know if this is fair to characterize as part of the #MeToo Backlash Movement. But there’s the frustration that was engendered — you pardon the expression by the reaction to the Aziz Ansari story was interesting as well. So Caitlin Flanagan and Weiss, I forget her first name in the New York Times and others expressed in some sense frustration. It’s like wow, we’ve made all this progress, then along comes this poorly reported anonymous complaint against Ansari that in some sense sets us back on our heels right when it seems like we’re making some traction. So focused on the Ansari episode in particular anything to that.

Deborah Tuerkheimer: I think there’s a lot of agreement that the story itself was not well reported and that it wasn’t the best way to advance a conversation that should be advanced and that quite honestly was advanced by this story and so if —

Daniel B. Rodriquez: Every single day it’s advanced by yet another —

Deborah Tuerkheimer: If you could sort of wave your magic wand and have it, have been written differently I think that most people would say yes. It should have been written definitely, it should have been done differently and there are a lot of reasons to feel uncomfortable with the way the story was presented and were counted, that said the importance of moving the conversation away from the paradigm of Harvey Weinstein and serial sexual assault is so important and it was going to take some kind of story that caught people’s attention the way the Ansari story did to push that conversation.

And so I don’t think that the backlash that Bari Weiss and Caitlin Flanagan worried about is upon us. I mean I think that there are good reasons to sort of worry about backlash but we seem to be and we those who care about this conversation progressing weathering that’s just fine. It’s complicated, it’s messy, we don’t all agree, but that’s okay.

Laura Beth Nielsen: It’s an excellent case for teaching, for teaching young people, I don’t mean teaching in the university classroom, I mean teaching our children that this is a kind of sexual scenario that you could find yourself in and no, you’re not going to be in legal trouble here even though there’s an argument that he did assault her because she said no and he continued to touch her mouth if the reporting is accurate. But it’s been really useful for talking to my teenage sons about the kind of situations they might find themselves in and the kind of harms that they can do to people that they don’t want to do and talking about how do you get yourself out of that situation.

Deborah Tuerkheimer: And you know and to that point even among those who disagree about how to characterize the incident. There seems to be a universal sense that this is commonplace and you know even Bari Weiss in her piece said, every grown woman I know has encountered something like this.


And so that fact alone I think has helped to kind of propel this conversation. Whatever you going to call it, it’s not good, she felt violated afterwards and we ought to be talking about it.

Daniel B. Rodriguez: Another dimension to this and Andrew Sullivan penned a piece recently in which he said, they were coming down the precipice of a sort of followed McCarthyism. And the example he used is he was referring to a website I guess, Shitty Media Men, which is if I understand it correctly is a location for the outing as it were anonymously at least the anonymously the accusers of a list of men, ever-growing list of men.

And then there was a movement by Katie Roiphe, is that her name, who was going to publish something in Harper’s outing the person who created the list, and a backlash to Harper’s for the publication of that back and forth. And Sullivan uses that as an opportunity to say, look at the hole that we’ve dug to basically create a venue by which individuals, and leave the Ansari case to one side, just a venue by which victims sort of come out of the woodwork to accuse anybody they can, in any scenario they can of all of this heinous behavior, career wrecking accusations.

Should we worry about this? Violations of privacy, anonymity, hate to use this phrase but fake news and all of it, all of the ways is this the new McCarthyism?

Deborah Tuerkheimer: So my understanding of what happened and just to kind of provide a quick summary is that the list was created and circulated among at first a small group of women and media. It then became more widely circulated and very quickly found its way onto BuzzFeed.

I think the maker of the list quickly tried to take it down and did take it down, but at that point it had escaped the original.

Daniel B. Rodriguez: Gone viral is the word.

Deborah Tuerkheimer: Yes. The intention was that it remained kind of among the whisper network, right. Quite frankly, this was women and media who wanted to keep one another safe, who wanted to share their stories so that the men on the list wouldn’t harm others.

Daniel B. Rodriguez: Let me just jump in, I don’t mean to interrupt but I’m struck by this, I heard this recently in the context of a university-wide conversation. Apparently in the Greek system, fraternities and sororities at Northwestern, I suspect in other places, there’s a list that circulate around about bad men.

Laura Beth Nielsen: Absolutely.

Daniel B. Rodriguez: I’m looking at Laura Beth because maybe you’ve heard about this.

Laura Beth Nielsen: Yeah, yeah I am doing research on this right now. There are all kinds of informal mechanisms like what you’re calling whisper networks, these lists in the Greek system designated watchers, right. People who will go to the fraternity parties not drink and keep an eye on all of the women from their sorority making sure — probably all the women, making sure that nobody is sort of being shunted off to a backroom or drinking too much.

And that’s the thing with these lists and this whole question of is this a new McCarthyism and are we ruining people’s careers on the basis of one woman saying whatever is the change that we’re making from doing this informally to being able to do it out loud, it has risks to targets as well, right.

We can be sued for defamation, we can be — there’s a whole set of laws that protect people if their career is ruined by a lie. And so it’s just — it’s really interesting when you compare it to McCarthyism, there was no social good to McCarthyism. The social good that we’re trying to accomplish here is gender equality in every facet of society.

And so all of a sudden, oh, well, hey, what happened to the First Amendment in these conversations now that women are using it to accuse men? Oh hey, it’s too much.

Daniel B. Rodriguez: Deb, I’m sorry I interrupted you when you were —

Deborah Tuerkheimer: Yeah, right. Yeah, it’s fine. So Laura done again, I think got wind of the fact that Katie Roiphe was going to publish her name in Harper’s and at that point wrote a beautiful piece, kind of explaining herself more wrote down again.

Daniel B. Rodriguez: By name.

Deborah Tuerkheimer: By name, she identified herself as the maker of the Shitty Media Men list and explained that this was really designed to help women keep safe. So I think it’s complicated and obviously anonymous accusations can raise concerns but as Laura Beth said, this is in a context in which it has been exceedingly difficult for women to step forward and say this has happened to me.

And it’s hopefully changing. I think part of what we’re maybe witnessing is a shift in the incentives. But for now, it’s not hard for me to understand why this seemed like the only way or the best way.

Daniel B. Rodriguez: Let me ask one more question about the backlash and goes back to the other element that you see and that is the punishment fitting the crime, and ask you about the Senator Al Franken episode, which also like a comet across the sky, these photographs, accusations, more than accusations, admissions of sexually inappropriate conduct.

In the next moment, he’s gone, he’s out of the United States Senate. President Trump’s alive and kicking. Is there any proportionality, any sense of — I don’t know how to exactly I’d ask the question is there redemption possible?


Should James Franco be driven out of Hollywood, how do we evaluate the punishment in these episodes in which we’re not invoking the criminal justice system. Someone is accused, admits wrongdoing and go off into the wilderness in some sense.

Deborah Tuerkheimer: Well in just today, it was announced that Casey Affleck will not be handing out the Best Actress Oscar at the Academy Awards that I guess will have already happened by the time, that this is available for listening.

Daniel B. Rodriguez: So he did not give out unless things change.

Deborah Tuerkheimer: And I think this is exactly what we want to have happen. We want people to make their own choices about do I want to go see a Casey Affleck movie, do I want to support him, do I — how do I feel about Aziz Ansari, am I going to keep watching his show?

Now, within the political system and the Al Franken story is really complicated because you have somebody who in their career is a strong advocate for women. And so they have this role that is really important. That said, as a political matter, I did think if the Democrats wanted to be credible on this, he needed to step down but I think we’re having exactly the kind of conversations where people get to make their choices about who they want to support, who they want to give their money to and when it comes out that somebody has been a creep. I’m not going to pay to see their movies anymore.

Daniel B. Rodriguez: So maybe my use of the term punishment really doesn’t get at it at all, it’s whatever social opprobrium that goes along in a free society for folks based on. So for folks who for the last 20 years say yeah, Woody Allen was terrible but I really like Woody Allen movies, right, that’s an ethical and moral choice that they make for themselves. Yeah.

Deborah Tuerkheimer: Yeah I think that’s right. The calculus may be shifting. The way in which we really absorb and incorporate knowledge about how people behave in the workplace, how people behave on dates, it’s a lot of information and some of it we feel is private, it makes us uncomfortable.

But we with regard to figures in the public eye, whether they’re politicians whether they’re movie stars, TV stars, rock stars, once we get this information, I agree with Laura Beth, it probably should have bothered us more in the past than it bothered us. And if we’re seeing a change in that score then I think that’s probably progress.

Daniel B. Rodriguez: Great. Let me ask you one last question, Laura Beth, you already touched on this in an answer before when you were talking about, your own children. In the classroom, we’re all professional educators that’s the key role that we play, what impact has this made on your teaching, on how you introduce these topics and teach?

I mean you, both of you teach courses precisely in the wheelhouse of these issues but sort of from a general vantage point, how professional educators educate folks about these issues in the classroom?

Laura Beth Nielsen: Well I always give one trigger warning for the entire class, it’s on the first day. I say I can’t warn you every time because I don’t know when we might be discussing something and consent becomes relevant and then all of a sudden we’re having a discussion about rape.

And so I can’t warn you every time. This is a free flow of ideas. We’re going to be going back and forth, look at the readings ahead of time and I’m going to try very hard to be sensitive, and if you need an alternative assignment or you need to skip a day, just come talk to me.

But mostly I think it does really freed people up to have these honest conversations and to do them respectfully because in the same way women have been for years, unsatisfied with the way that this conversation is going and we’re having this moment. And now there are these other resulting problems that you’re bringing up, is this too much punishment or too much backlash? And so there’s an incentive on everyone to want to be having these conversations and even the most conservative critic of the Me Too movement, very few of them are endorsed rape, right. I mean this is a social problem people want to solve. We don’t want women to be raped.

So I think there’s a new incentive to participate collegially and to really dig into these questions in the classroom.

Deborah Tuerkheimer: Yeah I agree. I have been noticing in the past, let’s say five years, that the conversation is a little bit different because students are coming from college campuses that have very much been promoting affirmative consent as an ideal. They have been educated, they have done workshops and so they come sort of primed to understand that sexual consent is maybe influx, that it’s being modernized in some way, but that these are hard questions.

And so when I teach for instance, rape and in criminal law I find that students even before Me Too, but even more after Me Too are willing to dig in and willing to sort of take this on as a collective problem, not just a problem that that women have, not just a problem that women should be talking about among themselves, but this is something that we as a society are wrestling with in a really urgent way.


Laura Beth Nielsen: Just quickly to add.

Daniel B. Rodriguez: Please, yeah.

Laura Beth Nielsen: So I teach undergraduates, and it’s really interesting because you get a lot of undergraduates who come in with that kind of experience with being taught about sex. But you also have to remember I’m also getting people who had abstinence only sex education in their public schools.  So —

Daniel B. Rodriguez: Or were homeschooled.

Laura Beth Nielsen: Or were homeschooled at Northwestern, a number of our freshmen first class I’m supposed to say are 17. So I’ve got minor sometimes in a first-year class and people who have had very little sexual experience and very little sexual education perhaps. And so one thing that activists and scholars that I’m working with are talking about is really good sex education reform at college, right. Maybe there needs to be an undergraduate requirement not just to take the online thing that everybody has to take before you can register for classes, but to have real sex education.

Daniel B. Rodriguez: Right. Well, I want to thank both of you for joining me today, but I especially want to thank you for the tremendous work that you do as educators, as scholars and as activists. It’s been a great pleasure to talk to you. And that’s our show for today. Thank you for joining me. Thanks for listening. I am Dan Rodriguez, signing off from the Northwestern Pritzker School of Law.


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Episode Details
Published: February 21, 2018
Podcast: Planet Lex: The Northwestern Pritzker School of Law Podcast
Category: Legal News
Planet Lex: The Northwestern Pritzker School of Law Podcast
Planet Lex: The Northwestern Pritzker School of Law Podcast

Planet Lex is a series of conversations about the law, law and society, law and technology, and the future of legal education and practice. In other words, a bunch of interesting stuff about the law.

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