Kiss still a kiss?

Harassment occurs when a place of employment makes life unfairly unpleasant for a worker.

By ASHER MEIR
October 13, 2006 00:59

A few weeks ago, a former coworker of Justice Minister Haim Ramon accused him of forcing an intrusive kiss on her. The police investigated the complaint, and the government's legal adviser, Menahem Mazuz, recommended that pending treatment of the complaint, the Minister should temporarily step down - which he did. The case is of great interest from a business-ethics point of view since, on the one hand sexual offenses in the work place are a severe problem yet, on the other hand, Ramon also has work place rights and losing your job due to a mere complaint is certainly very extraordinary. Based on the news stories I have seen, the facts are little in dispute: the complainant is a person who had worked for Ramon and was finishing her tenure. Ramon gave her what is known as a "French kiss," which means (to push the borders of delicacy) that he stuck out his tongue. What does that mean in legal terms? That is for the judge to decide, but I will try to give readers a little background, first reminding everyone that my specialty is business ethics and not law. There are different levels of sexual offenses in the work place. The lowest level is known as sexual harassment. Harassment occurs when a place of employment makes life unfairly unpleasant for a worker. Sometimes a single aggressive act may constitute harassment; in most cases, only a pattern of activity would qualify. Making one lewd comment to a coworker would be in bad taste, but it doesn't make work unbearable - making constant comments of this nature would generally be considered harassment. Harassment is not an ordinary crime, it is a work place crime. If someone harasses you this way in a restaurant or a shopping mall, they are not guilty of sexual harassment. This infraction violates the conditions of employment. Often sexual harassment is also a tort, meaning that the harassed worker can sue and obtain damages from the employer or harasser. In the Ramon case, a pattern was not alleged and in any case could hardly have been a factor since the person who complained had already finished her term of work. So far the complainant has not sued Ramon in civil court claiming damages, though it is common first to try to obtain a conviction and only if this fails to sue because a civil suit requires a much lower level of evidence ("preponderance of evidence," meaning that the wrongdoing seems "most likely," instead of proof "beyond a reasonable doubt"). A much more serious kind of crime is sexual assault. Of course the most serious kind of sexual assault is rape. But any kind of unwelcome physical contact may be considered sexual assault - a common example is groping (unwelcome and intrusive touching). Is a French kiss considered sexual assault? Readers will not be surprised to find out that Haim Ramon is not the first person in history to make an allegedly unwelcome gesture of this kind, and an Internet search reveals many precedents. The answer is that in some places - evidently most - such a kiss is considered assault, while in other cases it's not. However, even within sexual assault there are different categories. In many jurisdictions where a kiss is not just a kiss, but a crime, it is still in a different league than more serious offenses. It is what is known as a "summary offense," meaning that if you admit wrongdoing you just pay a fine and go home. No indictment, no conviction, no trial. This is what usually happens when you get a speeding ticket. Technically, speeding is a crime but very few people go on trial for it. If you pay your ticket, you go home without a criminal record and without even an indictment. If a judge were to conclude that under Israeli law an unwelcome kiss is an assault and is, furthermore, an indictable offense, of course a criminal conviction is possible. However, a criminal conviction requires proof beyond a reasonable doubt of a crime, and that conviction for a crime requires "mens rea", meaning intent to commit a crime. If Ramon can convince a judge that he thought the young lady was consenting (this is different, and easier, than convincing the judge that she really was), then it would not be easy to convict him. This sounds easy, but it is not. The reason is that there is generally a legal presumption against true consent when the alleged offender is in a position of authority. Here the case is muddied by the fact that the young lady's work tenure had already ended. Anyway, I am not here to second-guess the judge, only to show that Ramon's actions are not so frightening as to justify asking him to step down the second he was accused of a crime - particularly one that in many jurisdictions is considered an especially minor one. I understand that a Justice Minister is in a unique position to foil a criminal investigation, but here there really is no investigation. There is virtually no dispute as to the facts of the case, and no one is claiming there is some kind of far-reaching web of evidence that needs to be carefully unraveled. Why shouldn't Ramon be innocent until proven guilty? It is true that a minister in the government is a privilege and not a right and that ministers need to be held to a higher standard than the average employer. But even government ministers are entitled to human dignity and basic work place rights. Furthermore, the special responsibility of a minister should be enforced by the executive branch, which is answerable to the voter, and not to the judiciary. So if the Prime Minister decided to discharge Ramon because his disgusting act makes him a political liability, this would certainly be justified. But having judicial officials (or quasi-judicial officials like Mazuz) intervene or make recommendations is an unwarranted intervention in the work place rights of the minister. Mazuz should make political recommendations in private to the prime minister, not in public to the press. The bottom line is that based on the facts that have been published in the press, there is a pretty good chance that the work place rights of the complainant were violated, and a fair chance that she is the victim of a crime. All this will be for the judge to decide. It also seems certain to me that the work place rights of Ramon himself have been recklessly trampled by an overly zealous and unaccountable criminal justice system. [email protected] The writer is research director at the Business Ethics Center of Jerusalem (www.besr.org), an independent institute in the Jerusalem College of Technology.


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