In his long letter to the UC Berkeley School of Law community, Sujit Choudhry has demonstrated a creative way to blame the victim. He does not deny that the things his victim said happened actually happened. But he implies that she is somehow complicit because of the amount of time it took her to get around to sending him an email complaining of the behavior and because she reportedly said she knew he did not mean anything by it. Though this is an interesting strategy in the effort of Choudhry and his attorney to gain the upper hand in the court of public opinion, it is a horrible lesson to offer to current law students.
First, Choudhry ignores the fact that sexual intent does not excuse acts of sexual harassment. Nor could it — otherwise, any sociopath could harass to his or her heart’s content and there is nothing a victim could do about it. The more important question goes to the impact that the behavior had on the victim. Second, to suggest that the timing of the accusation or the choice of words by the victim can excuse bad behavior is to ignore the power relationship involved. The victim’s job was on the line — a concern that was proven out when she was encouraged or asked to find another position. It is exactly this pending threat that would cause a victim to think twice about complaining or to choose neutral words when trying to stop the damage. In fact, her communication as reported by Choudhry was right on the mark — regardless of his intent, her ability to work with comfort and the absence of anxiety and threat had been destroyed. That is harassment. Finally, it should be noted that the university’s own training materials encourage people to confront the perpetrator in just the way she did — through the use of non-threatening, non-accusatory language that might not make the perpetrator so defensive as to be counter-productive.
Rather than focusing on intent, perhaps it is much more important to examine the impact of one’s actions and the significance of someone in a top management position being insensitive to the consequences of what he or she does.