Vail Law: With Conyers, Franken and Moore, should the punishments be the same? (column)
Much of what lawyers do is to make distinctions — this not that. We make our livings by making distinctions, by painting by analogy, by parsing words into their separate acreages, by fractioning, by splitting hairs by the most sensitive of microtomes.
And that is fair. At times, the law is binary, and at others, it is composited of subtle shades of gray.
First, by the time you read this, John Conyers may have stepped down from his ancient perch in the Congress. At 88 years old, and having served in the Congress since 1965, the Michigan Representative is the longest-serving person in the House. Sen. Al Franken, of Minnesota, may have also flown the legislative coop. And Judge Roy Moore may have given up his rabid race as the Republican candidate for the open seat for U.S. Senator from Alabama.
And, oh yeah, pigs may have sprouted wings and flown.
In any event, while the data may be a little dated by the time your eyes find this column, the concepts will endure.
What do these legislative creatures — Franken, Conyers and Moore — all have in common? Well, among other things, each is in the bullseye of his own private sexual abuse scandals. The #MeToo movement has gotten them. Each is accused by apparently credible accusers of what may be delicately referred to as “improprieties.” Those improprieties are what the law calls assault and battery.
“Assault” may be defined as an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact. An assault is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harm. Assault is the threat of battery.
“Battery” is an intentional, unpermitted act causing harmful or offensive contact with the “person” of another. Battery is concerned with the right to have one’s body left alone by others. Its essential element is harmful or offensive contact. Striking another, unwanted touching of another, spitting on another are all forms of battery.
Assault and battery may be sexual or otherwise. The unwanted sexual touching of another is a sexual battery. When you see “unwanted sexual contact” written in the papers, read that as sexual battery instead.
One other quick concept is the construct of harassment, which the law defines as the act of systematic and/or continued unwanted and annoying actions of one person against another, including threats and demands. The purposes of harassment may vary, but among them is the attempt to force someone by threat or otherwise to grant one sexual favors. “If you sleep with me, then your promotion is assured.” “If you don’t sleep with me, then clean out your desk.” Flavors of harassment include sexual harassment and workplace harassment, which, sadly, all too often intersect.
What, then, of Conyers, Franken and Moore?
Conyers is accused of abusing his position of power and authority as a Congressman. Specifically, he is accused of harassing and, in self-gratification, the unwanted sexual touching of female subordinates in his Congressional offices. His accusers claim he used his power and position to threaten and intimidate them and to force himself on them.
Franken’s shortcomings are of a different sort. Before he was elected to anything at all, he is accused of groping, belittling and humiliating various women for either his sadistic pleasure, self-gratification or what he thought was humor. None of the women who Franken is alleged to have abused were subordinates of his, and none were subject to either his threats or coercion. To be sure, this does not excuse either his abuse or crassness, but it is of a different stripe than what Conyers is accused of.
What is leveled against Moore is even more offensive. More than a half-dozen women have accused Moore of having initiated sexual contact against them when they were children and he well into his 30s. He is also said to have intimated these young girls by holding that he was a District Attorney and, as they were just young girls, if they tattled, no one would believe them.
Creeps? Yes, all of them, it seems. The witnesses against all three are credible and should be taken at their word. But each of the three is a creep of a different sort. It appears Conyers abused his power and assaulted those who innocently worked for him; Moore was or is a pedophile; and Franken is a groper who lacks grace and boundaries. All three, it seems, are sexual batterers. But are their offenses equal?
I’ll leave that to you to sort out on your own. But I pose this question: Is a man who gropes and abuses power, or one who gropes young girls, different from a man who simply gropes? Should the punishments be the same, or should hairs be split in making fine distinctions?
For my two cents, Conyers should step down, Franken should be censured and Moore would be an embarrassment should the people of Alabama elevate him to the Senate. All should be subject to suit by their accusers. All should keep their dirty hands to themselves.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.
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