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A protester raises a placard during a rally against harassment at Shinjuku shopping and amusement district in Tokyo in 2018.ISSEI KATO/Reuters

Stacey Hannem and Christopher J. Schneider are the authors of Defining Sexual Misconduct: Power, Media, and #MeToo.

In 1982, in the midst of parliamentary debates of changes to Canada’s rape laws, a Globe and Mail reporter wrote that “No one seems to know what sexual misconduct is.” Subsequent changes to the Criminal Code, which used the language of sexual assault, not sexual misconduct, did nothing to clarify the term. And yet, even 40 years later, sexual misconduct – this term with no legal definition – is everywhere.

As we approach the fifth anniversary of the emergence of the #MeToo movement, reports of sexual misconduct at the University of British Columbia are up 83 per cent over the previous year. Canada’s Minister of Defence has issued a formal apology to those harmed by a long history of sexual misconduct in the Canadian Armed Forces. Sexual misconduct has been acknowledged as a rampant and continuing crisis among police services across the country.

In our new book, we explored the shifting social landscape and tracked the language of sexual misconduct across news media reports over a period of nearly four decades. This is a term that developed primarily through media, rather than through law, and we argue that the lack of a legal definition is precisely what gives the language and discourse of sexual misconduct and social movements such as #MeToo the power to drive change.

The discourse around sexual misconduct may be defined as a broader public awareness of women’s lived experiences of unwanted and uninvited sexual conduct, ranging widely in scope in terms of harm and effect (e.g., from catcalls to sexual assault), accompanied by the widespread cultural recognition that such experiences are in fact commonplace.

The way we use “sexual misconduct” is unique from how we use all other descriptors of sexual harm because it covers a much broader symbolic terrain than any of its related counterparts. That gives individuals a way to identify and speak about experiences of sexual harm that may not be encapsulated in other narrow legal terms, such as sexual harassment or assault.

Consider the term “sexual harassment.” Coined by American feminists in 1975, the phrase spread around the world as a way for women to talk about cross-cultural patterns of abusive behaviour by men in the workplace. These discussions helped establish the legal foundation that defined sexual harassment at work as sex discrimination, including quid pro quo exchanges of sexual favours for workplace advancement and harassment in the form of a generalized “hostile environment.” Legal interpretations of sexual harassment, while culturally diverse, have been incorporated into a substantial body of case law, and today, discussions of sexual harassment are most often framed in legal terms.

Research has found that when interactions become encoded in law, a situational irony occurs in which people try and sometimes fail to hold their experiences to this external legal standard. Many women, for example, do not know what legally qualifies as sexual harassment, and as a result are less likely to identify their own experiences as such or to label male behaviour in this way. Any behaviour that does not meet the legal standard for harassment may be interpreted as just something women have to tolerate, even if they are harmed by it.

The expanded use of the term “sexual misconduct” signals the growing social and cultural recognition of these behaviours as potentially problematic concerns, even though they might not meet the legal standard of sexual harassment or assault. This provides a baseline for affected persons to recognize and orient personal troubles (individual experience) as public issues (or shared experience). In other words, the discourse of sexual misconduct facilitates a “sociological imagination”: what the sociologist C. Wright Mills described as “the vivid awareness of the relationship between personal experience and the wider society.” Echoed in the rallying cry of second-wave feminism, it is the sociological imagination that allows individuals to conceptualize that the personal is political. And to realize that sexual harms are varied and pervasive in our society.

Nevertheless, the imprecise and often contested nature of the phrase has raised concerns that it minimizes sexual violence, while also expanding the definition of sexual harms so much that it could undermine hard-fought battles for recognition of violence against women.

Indeed, sexual misconduct is an ambiguous concept, and its definitions and interpretations can vary considerably. Some critics and feminist scholars have argued that the more neutral “sexual misconduct” (in lieu of more charged terms like “violation”) can minimize and downplay the violence of sexual assault. In this way, institutions may use the term as a sort of vague euphemism – a softened expression in which assault becomes misconduct and the legal frame, with its attendant consequences, is replaced with an ethical frame and no mechanism of accountability.

If systemic violence can be reframed as individual misconduct, as we have seen with women’s experiences in the Canadian Armed Forces and in various police services, then the consequences are individualized and the path to institutional change is made that much more difficult. There is a danger in understanding sexual violence as an individualized experience, but there is also power in connecting the lived experiences of many women and understanding them as part of a spectrum of harms.

The power of the discourse of sexual misconduct lies in its ability to take the recognition of sexual harm out of the legal binary, wherein behaviour is either illegal and therefore harmful, or not illegal and should therefore be tolerated. There is valuable space, then, in this new definition – not to necessarily expand the power of criminal law, but rather to expand the power of individual agency to recognize harm and to demand accountability in situations that the law does not govern.

We remain cautiously optimistic about this. While much work remains, much has been accomplished in the effort to create space for women to speak and to be heard.

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