MICHEL MARTIN, HOST:
Now it's time for the Barbershop. That's where we talk to interesting people about what's in the news and what's on their minds. Joining us for a shape-up this week are Paul Butler. He's a law professor at Georgetown University and the author of "Chokehold: Policing Black Men." He joins us from our New York bureau. Hi, Paul, welcome back.
PAUL BUTLER: What's up, Michel? Woof, woof, woof.
MARTIN: You, obviously. Susan Chira writes about gender for The New York Times. She's also at our studios in New York. Hi, Susan, welcome back to you, as well.
SUSAN CHIRA: Hey, Michel. Great to be here.
MARTIN: And here with me in Washington, D.C., is Jack Marshall. He's the president of ProEthics. That's an ethical training and consulting firm. Jack, thank you so much for coming back to us.
JACK MARSHALL: Good to be here, Michel. Thank you.
MARTIN: So we've been talking a lot about sexual harassment in here. Again, I'd like to mention that NPR has been one of the organizations where top executives have been suspended or fired because of such conduct. Now, Jack, you were on the program last week with us. And just as we were running out of time, you were talking about how men should be thinking about sexual harassment.
And you mentioned that as more and more allegations of sexual harassment come out, some men aren't sure if things that they did in the past constitute sexual misconduct. And you also mentioned that there is this fear that this is turning into what you called a witch hunt. I just wanted to give you a chance to talk more about that.
MARSHALL: Yeah. The episode that just turned up in the last 24 hours involving Representative Kihuen really sets this out, I think, which is that - remember that sexual harassment is defined by how the recipient of it feels. If it's welcomed, it's not sexual harassment. If it isn't welcomed, it is sexual harassment. And it opens - the way the law is written and the way we look at it is someone who can change their mind about whether it was welcomed or not some time after it actually occurred. And men who - men who think that any conduct from them is welcomed often may find themselves in the situation of suddenly finding it was not. And this comes from, often, what their experience is, how attractive they are.
I have a script that I use in my training where, you know, a George Clooney level of actor and someone who looks like Steve Buscemi, for example, both hit on the same employee over and over again. That's sexual harassment, except eventually she agrees to go out with the good-looking guy. And the other guy who's just sort of inept is sent to HR with a complaint. And my audiences don't get this. They say it's unfair. And I say, well, that's sexual harassment. It depends on the victim's perception.
MARTIN: So - wait a minute. Are you really trying to tell me that somebody good looking behaving in a boorish fashion is OK as long as the target eventually thinks it's OK? I mean...
MARSHALL: I don't think it's OK. But it's not - but - I don't think it's OK. However, they will not get in trouble for sexual harassment because of the way the law is written. A hostile work environment means that the recipient of this has to feel hostility. They don't like it. So, for example, if somebody - I have a hypothetical that I'm sure has happened where someone is grabbed by Donald Trump back when he's a celebrity, and she comes home. And she's kissed, and she tells her roommate that was cool. Donald Trump kissed me. And then when everybody she knows detests Donald Trump, she suddenly says that not - you know, I was harassed.
MARTIN: OK. Yeah, I think we're going to go to a different...
BUTLER: Come on.
MARTIN: All right. All right, Jack, you've had your say on that. And I think there are a lot of people who would want to argue with - I'm going to let Paul speak his piece on this. What do you say to that?
BUTLER: Thank you, Michel, because Jack is giving us guys a bad name. So look. A lot of the guys are to talk to are feeling uncertain about whether their own actions might be misinterpreted and how it is the experience of some men that people have accused them of doing things that they didn't do. At the same time, though, a lot of us are hearing these me-too stories from women in our own lives that we haven't heard before about their own experiences with harassment and abuse. And so the problem is real and pervasive. And, you know, I hope these brave survivors have ignited a cultural shift.
As a black man, though - real quick - I do have a heightened sensitivity to due process. When people are implicated, I think they need an opportunity to respond. And, now, I do think in some of these cases we see a rush to judgment. If she said it, it must be true. It's important to listen to both sides for the sake of a fair process.
MARTIN: Why do you say as a black man you have a heightened sensitivity to due process? I would think, you know, as an officer of the court, you might have a - or as a...
MARSHALL: Law professor.
MARTIN: Law professor. Why do you say that, though? I mean, you're highlighting race for a reason. What is that?
BUTLER: Because of this, you know, the strange fruit - this tragic history of black men being falsely accused of sexually assaulting white women. And so when we just say if she said it, it's true, as a historical matter, that's not correct. And then the former prosecutor part, though, Michel - a legal concept called proportionality, the idea that the punishment should fit the crime.
And if you look at these allegations now, they range from Garrison Keillor inappropriately touching a woman on her back to Harvey Weinstein forcing women to have sex without their consent. So there are different levels of harm. And I also think that that's something that we need to pay attention to. Every thing - every action, every bad act might not deserve a nuclear option.
MARTIN: Susan, what's your take on this?
CHIRA: I do think it's really important to think about proportionality - it's something that's been on my own mind - and due process. For example, I'm not happy when I see men accused on social media with lists circulating with no corroborating evidence that I can understand. But I also believe this is a long overdue reckoning. And what is extraordinary about this moment is that the behavior that, essentially, people shrugged at, that was an open secret in many places, and that many women, essentially, felt they were compelled to endure for the sake of their careers or keeping their jobs - this behavior is all of a sudden ruled toxic and ruled not in the best interest of the employer. So I think we're in an extraordinary moment. But I do think that some caution is needed so that we don't blow up this moment and stall the progress that I see being made.
MARTIN: Well, talk a little bit more about that, briefly, if you would. But what exactly does that look like? And what's the red flag? Or is it the yellow flag that you want to throw up here?
CHIRA: Oh, I just think - I think it's really important that women are finally coming forward and saying, even if it is well in the past and even if it isn't something that legally can be remedied, saying this is what I endured, and I was unable to talk about it because I was ashamed and because I knew I would lose my job or my career would be completely derailed by powerful men and, therefore, I could not confront my victimizer. So that is powerful. That is indelible. That is really important. All I meant is that I don't believe that we should be doing public shaming without some degree of due process, as Paul mentioned. I just think we have to be careful because what we want is women to be believed and people to act responsibly.
MARTIN: You know, one of the things I was curious about, Jack, is that - that's talking about, you know, public shaming. It's interesting that you mentioned the case of the Congressman Ruben Kihuen of Nevada. And the Minority Leader Nancy Pelosi has called for him to resign over previous allegation of misconduct. She's called on John Conyers to resign. They haven't resigned. In fact, we haven't really seen too many political figures - we've seen calls for them to, but we haven't seen the same kinds of consequences as we've seen for other people in other sectors. I was just - why is that?
MARSHALL: Well, of course...
MARTIN: You think public opinion would be more relevant there than other places. But they're - but what is that? Why is that?
MARSHALL: With any luck, they face - you know, they have to face the - they have to face the voters. Once these things are known, I believe there is a difference between people who are elected with knowledge of this and people who are elected without knowledge of this, like Franken. And the Kihuen situation goes to what we were just talking about.
MARTIN: OK, but then Donald Trump then - knowledge of this. So, again, it's just - it's - there have been stories about this, like, with people who have made allegations against Donald Trump and their sense of puzzlement and, in some cases, real anger about the fact that there don't seem to have been consequences, where in all these other sectors - I just wonder why you think that is.
MARSHALL: Well, it's - what - the factor of cognitive dissonance working in bizarre and strange ways. For most people, if you have somebody that you admire and you suddenly find out they were serial sexual harassers, you don't admire them as much anymore. In the case of President Trump, for many reasons, all of those negatives that normal people were upset about were blown away on the cognitive dissonance scale. So he's actually an anomaly.
What troubles me is when Nancy Pelosi calls for resignation of a - pretty much a straight-down-the-middle-of-the-alley sexual harassment situation. There's no rape. There's no real sexual assault. There's just what we would call sexual harassment that hasn't been proven in any kind of a due process way. And yet, she's saying I find - you know, I find the allegations convincing. Well, you know, I could write convincing allegations that are totally fictional. There has to be some due process. And this is the problem we have with saying, yes, we want to believe women because they haven't been believed. But then we're handing power to destroy if in fact that power is misused.
MARTIN: Susan, you want to take that?
CHIRA: Yeah. I would love to weigh in here. I do think that you've raised the question of the hour, which is, what are the political consequences of sexual harassment? I think this is a frontier that we don't yet know. And it's really important because, you know, Hollywood has concluded their brand suffers. It's toxic. So they have to get rid of people that they enabled for years, right? But in the political arena, either people have to resign or they have to be voted down. And what I really want to know is, are we in the middle of such a cultural shift that this behavior becomes unacceptable to voters?
Roy Moore is going to be a test case. But it's not a completely fair test case because you have mixed into it the fact that Alabama has been such a Republican-dominated state and that voters are going to be torn between voting for someone whose conduct they may abhor and voting for a Democrat whose politics they may abhor, right? So I do think that how this falls out in the political world is crucial.
MARTIN: Paulie, you know what? We only have a minute left, but I wanted to ask you about Jay-Z. The 2018 Grammy nominations came out this week. Jay-Z has the most nominations. When his album "4:44" came out, you were one of the first to talk about it. So I'm just going to give you the last word. Thoughts on Jay-Z?
BUTLER: Jay-Z was put on this earth to be a rapper. He's the greatest hip-hop artist alive, and one of the coolest people on the planet. And this interview he did in The New York Times - totally what we're talking about today, Michel, because what he is doing now is reconstructing masculinity, and especially, what it means to be a black man. He says, yeah, I got therapy. Yeah, I had to work it out with my wife and my kid. But that's the vision, right? That's what all men need to do. And so, again, put on this world to rap. But, you know, this new stuff he's doing - he's the man.
MARTIN: OK, that's Paul Butler, law professor at Georgetown, Sue Chira of The New York Times, Jack Marshall, president of ProEthics. Thank you all so much for joining us.
CHIRA: Thanks, Michel. Transcript provided by NPR, Copyright NPR.