Brittany Rostron, who has worked in various behind-the-camera roles over a decade in Hollywood, shares her lessons on navigating the landmines of sexual harassment in a male-dominated industry.
USA TODAY NETWORK
One year ago, allegations against Harvey Weinstein prompted a worldwide witnessing of sexual harassment and assault stories on social media, and the #MeToo movement sparked a cultural reckoning. Bill Cosby is in jail. Accused men, from Les Moonves to Al Franken, have been ousted from their positions of power. Allegations against Supreme Court nominee Brett Kavanaugh have left an unprecedented number of Americans opposing his confirmation.
But in this year, activists’ full-throated efforts haven’t been matched by the elected officials who could pass laws to protect people from sexual misconduct in the workplace and beyond.
USA TODAY examined more than 2,000 bills passed in the past 24 months by Congress and by legislatures in all 50 states that contained the word “sexual” and buzz terms such as “me too,” “rape kits” and “nondisclosure” using the legislative tracking service LegiScan. We found that since #MeToo began, elected officials passed 261 laws that directly addressed topics championed by the movement, just a slight uptick from the 238 in the year prior.
#MeToo has raised awareness and made it easier for ongoing reform efforts to get traction. Elected officials across the country have held hearings and introduced resolutions and bills in support. But a closer analysis reveals few new laws that substantially remove the barriers for victims to report and seek justice or that increase accountability for perpetrators and employers.
Congress has passed no laws related to sexual harassment in the workplace since #MeToo, not even regarding its own handling of harassment and discrimination claims against senators and representatives, which lags behind the standard set by the Equal Employment Opportunity Commission (EEOC) for private companies across the country.
States have passed a number of laws, but the majority are limited in scope. Others, like a pair of California bills aimed at making it easier to take sexual harassment complaints to court, were vetoed.
“Everybody thinks some massive, massive change in laws has happened with the #MeToo movement. But it hasn’t,” says Carol Moody, president of women’s advocacy group Legal Momentum. “Nobody will disagree something needs to be done, but the devil’s in the details.”
What would change look like?
If elected officials want to enshrine #MeToo reforms into law, they would ensure support services for survivors – including access to forensic nurses – and would end the backlog of untested DNA evidence, according to the Rape, Abuse and Incest National Network, which runs the National Sexual Assault Hotline (800-656-4673).
A half-dozen advocacy groups sponsored Enough is Enough, an anti-sexual violence summit and congressional briefing hosted by Rep. Lois Frankel (D-Fla.) in April, proposing nine legislative or policy changes. These included bolstering mandatory reporting and victim restitution and covering all workers under Title VII of the Civil Rights Act, which prohibits employment discrimination based on sex (domestic workers, for example, often fall outside those protections).
They also propose eliminating or limiting:
- Non-disclosure agreements and other measures that prohibit transparency. NDAs were used by Weinstein, for example.
- Forced arbitration, or requirements in employment contracts to handle legal disputes through private systems rather than public courts. Uber and Lyft, for example, announced in May they no longer will require people alleging sexual assault against their drivers to take their claims to forced arbitration.
- Statutes of limitations, the cut-off date for filing criminal or civil charges. Pennsylvania’s statute of limitations allowed Andrea Constand to file charges against Bill Cosby, now convicted, though other accusers were unable due to length of time.
USA TODAY found only two bills at the state level that passed in the past year that address two or more recommendations. Vermont now prohibits employment agreements preventing an employee from disclosing sexual harassment, extends sexual harassment protections to independent contractors and allows auditing workplaces for compliance. Delaware passed a law that will make employers responsible for sexual harassment of an employee when the employer fails to take corrective action, prevent employers from retaliating against an employee for filing a discrimination charge and empower the Department of Labor to investigate violations.
Congress has considered two omnibus bills this year, one on sexual harassment and another on sexual violence; both are facing hurdles:
The EMPOWER Act was introduced in the Senate and House over the summer with at least three of the points identified by Enough is Enough, including coverage for contract workers, restricting the use of non-disclosure agreements, creating a confidential tip line run by the EEOC and required filings of settlements with the Securities and Exchange Commission (SEC). It has been in committee with little visible movement for the last four months.
The Violence Against Women Act, considered a landmark bill in 1994, was set to expire Sept. 30. Lawmakers extended the deadline to Dec. 7 as the battle continues over a reauthorization bill that includes controversial gun-related provisions.
“I think that they just don’t think that this is important. I just think it’s not about them,” said Toni Van Pelt, president of the National Organization for Women, part of the Enough is Enough summit. “It’s not on their agenda.”
USA Today’s Jorge Ortiz ask for the people’s experiences on the #MeToo Movement.
What have lawmakers done?
While efforts in Congress have hit roadblocks, statehouses have made incremental progress. Several are narrowly focused, including 8 percent that created or renewed days or months designated for public awareness, according to USA TODAY’s analysis. Another 8 percent involved training programs for government employees, contractors and lobbyists.
Some states passed laws that many Americans may be surprised to learn weren’t already in place. This year, Maryland, Illinois, Louisiana, New Hampshire and Delaware joined 15 other states in making it illegal for law enforcement to have sex with people in their charge. A House bill introduced in July by Rep. Jackie Speier (D-Calif.) would make it a crime for federal law enforcement officers to engage in sexual acts with persons in custody. It remains in committee.
“I think that it is a ripe climate for low-hanging fruit to get passed,” such as making it mandatory to test rape kits, Houser said. “No one is going to argue with it. But that’s really different than passing a law mandating that elected state legislators and their staff have to behave appropriately or there will be repercussions in the statehouse. … I am waiting to see significant changes. I’m waiting to see things pass that seem like they would be common sense if this issue were a priority.”
Instead of giant bills, advocates and lawmakers have focused on specifics.
“We’re picking at aspects of it instead of a single omnibus, as we say,” said Teresa Younger, president and CEO of the Ms. Foundation, a nonprofit focused on women’s justice.
USA TODAY found bills in five states that tackle nondisclosure agreements: Washington prohibits employers from requiring nondisclosures as a condition of employment. Washington, California and Arizona passed laws that limit the power of nondisclosure agreements to protect those who have been accused of sexual harassment and assault in civil proceedings.
Florida limited their use with regards to subpoenas. Arizona also restricted public money to be used in a sexual harassment settlement with nondisclosures. And Tennessee prohibited nondisclosures in settlement agreements for sexual misconduct in local education agencies and voids those concealing details of child sexual abuse.
Arizona authorized the crime victims board to accept other official documents in lieu of police reports for documentation of eligibility for compensation for rape, sexual assault and child abuse and domestic violence.
Vermont created a restorative justice study committee to examine whether victim-centered restorative justice principles should be used in domestic and sexual violence and stalking cases.
Maryland created a Victim Services Unit. And Alaska provided funds to the Council on Domestic Violence and Sexual Assault.
USA TODAY also found 21 state bills that mandate reporting in some form for instances of sexual harassment, assault or child sexual assault. Many involve public schools, and are focused on making harassment or abuse cases more transparent.
Another 19 amend or strengthen sex offender registries or policies, with several focused specifically on reporting.
Advocates have also made gains in the area of survivors’ rights by chipping away at less controversial legal barriers.
USA TODAY found at least 35 bills related to sexual assault survivors’ rights passed in the states this year. Those range from setting deadlines to test backlogged rape kits to restricting a victim’s gender or sexual orientation from being used as a defense and entered into evidence in court.
Much of the momentum is credited to astronaut hopeful and full-time advocate Amanda Nguyen, who was nominated for the Nobel Peace Prize for her work with victim’s rights. The 27-year-old wrote what would become the Survivors’ Bill of Rights Act in 2014 after she says she struggled to preserve her own rape kit.
The bill includes access to sexual assault medical forensic exams, sexual assault advocates and protective orders, and was signed into law in 2016 after unanimously passing Congress. That initial success left Nguyen primed to make the most of tailwinds from #MeToo for the second part of her plan: taking the bill to all 50 states where the majority of sex crimes are prosecuted. So far, it’s passed in 18 states, seven after #MeToo.
“It doesn’t cost the government anything to implement these things … and its all based off existing legal precedents,” Nguyen said. “Let me tell you how low-hanging fruit this is – we specifically made it that way because we wanted these rights to pass.”
It does not include some more controversial elements, like requiring the government to provide emergency contraceptives for all rape survivors. States are able to take up those pieces individually, which California did when it passed its bill last October. Washington, which passed a victims’ rights bill in 2016, passed another this year aimed at helping immigrants, who often fear reporting violent crimes to law enforcement.
“We literally went around and when we talked to people said, ‘The #MeToo movement, if you want to do something about it, here’s a concrete action,’” Nguyen said.
Statutes of limitations
Child sexual abuse, which Tarana Burke was fighting more than a decade ago when she coined “Me Too,” has also seen incremental moves forward in the last year.
Testimonies of Catholic Church abuse survivors and hundreds of gymnasts who came forward against former USA Gymnastics coach Larry Nassar sparked heated debate around statutes of limitations.
“There are statutes of limitations for most crimes, except for murder. And it makes sense because memories fade, witnesses die,” said Sunny Hostin, a former federal prosecutor specializing in child sex crimes and co-host of “The View.” “Where I don’t understand the statute of limitations is child sex crimes. If you have someone who was sexually abused when he or she was five years old … who was living under an abuser’s roof, that child is going to be unable to go forward.”
Following Nassar’s trial, Congress passed legislation extending the statute of limitations for victims to sue alleged perpetrators to age 28 or up to 10 years after the reasonable discovery of the violation.
States have followed suit: Michigan extended its cutoff from the victim’s 19th birthday to 28th and provided a 90-day window for all Nassar victims to sue retroactively. A version extending the same window to all victims of sexual abuse failed to pass the state House, which advocates blamed on politicians acquiescing to special interest groups. Representatives of the Catholic Church and state universities publicly expressed concern over the the number of lawsuits that could come from opening the window to all survivors.
Before Larry Nassar was sentenced to 40 to 175 years, the prosecutor said if it weren’t for the investigative reporting of the Indianapolis Star, Nassar would still be abusing gymnasts. Those reporters now share how they gave a voice to the victims.
“You have the Catholic church lobbying heavily with state legislatures. You see athletic departments lobbying their state legislature and they’re like a finely tuned machine at this point. They’ve been doing it years and years and years, really to save money from civil lawsuits, and it’s shameful,” said Hostin, a board member with Safe Horizons, a victim’s assistance organization that works to prevent child abuse and sexual assault.
Hostin sees an opportunity there for #MeToo to reshape that dynamic.
“Now that people are talking about this more, reading about this more, realizing these institutions like the Catholic Church, like the Olympics committee and the colleges and universities are hiding these predators, people are aware. And they’re taking people to task,” she said. “I think that’s where we’re going to see real change. People are more involved in the political process than ever before.”
Equal Rights Amendment
Also at the state level, advocates have seen a renewed interest in the Equal Rights Amendment. Passed in Congress in 1972 but never ratified by the necessary number of states to amend the Constitution, the ERA would prohibit denying equal rights on the basis of sex in the same way the U.S. already prohibits discrimination on the basis of race, religion and national origin.
“It’s no coincidence that two more states – Nevada and Illinois – passed the ERA since the Women’s March and in this #MeToo and Time’s Up era,” said Rep. Carolyn Maloney (D-N.Y.).
At a New York protest pushing for the introduction of the Equal Rights Amendment, actress Alyssa Milano discusses the importance of the act and how she found her rage. (June 5)
Maloney and Speier have proposed legislation that would eliminate the now-expired deadline set in 1972, or to start the process of ratification over again. They say that though there are various laws prohibiting sex discrimination, it should be in the Constitution.
“If we basically embrace the fact that men and women are equal then the laws need to reflect that,” Speier said.
Just a bill on Capitol Hill
Congress hasn’t been immune to the cultural shift around sexual misconduct. But its policies lag behind some states and the private sector, something Speier says shocked her after her election to the House and led her to propose mandatory sexual harassment training in 2014.
“It was rebuffed by the chair of the committee who wouldn’t even take it up as an amendment in the committee let alone on the floor,” Speier said.
When #MeToo came three years later, she saw an opportunity.
“One Friday before I left I videotaped a short message about my own experience [of sexual harassment in Congress], mostly so that women on the Hill would feel safe coming to me to talk about it. Then I heard from many women, sitting in my office crying, shaking, and I knew that the problem was even bigger than I thought.”
Similar testimonials of sexual harassment while working on Capitol Hill from Rep. Ann McLane Kuster, D-N.H., Sen. Barbara Boxer D-Calif., Rep. Linda Sanchez, D-Calif., and former Rep. Mary Bono helped inspire a letter from 1,400 former congressional staffers in November urging leadership to mandate harassment training and reform the system for filing complaints.
The next month, the House Administration Committee revealed that taxpayer money was used to settle more than $342,000 in harassment and discrimination complaints involving House members from 2008 to 2012 following a public outcry over reports about a special Treasury fund that’s paid the victims.
Speier, Maloney and several of their House counterparts, including Rep. Bradley Byrne (R-Ala.), subsequently worked to amend the 1995 Congressional Accountability Act to strengthen victims’ rights, require third-party investigations and hold members personally financially liable for settlements. It’s been heralded as bipartisan and easily passed the House in February.
It hit a snag in the Senate, however, where House members say it was watered down. Provisions for third-party investigations were stripped, as were aspects of those holding members financially liable.
The bills have sat as negotiations to rectify them stalled. No movement has been made in five months.
“I think the average person in America has the right to expect more from us,” said Byrne. “I thought something would have happened before now. I’m astonished we haven’t gotten this done.”
Eyes on November
By all accounts, advocates and many legislators are looking to the #MeToo anniversary as a jolt of caffeine, not a deadline.
Another jolt, some advocates hope, could come after the midterm elections. Women are 50 percent more likely to sponsor bills on civil rights and liberties than men, according to a 2016 study. Currently women hold roughly 20 percent of offices in Congress, but record numbers of women are running for congressional seats as well as for governor, and for state legislatures including Arizona, Georgia, Iowa, Kentucky and more.
“With so many more women poised to be elected in November, I’m hopeful that we’ll have a Congress that finally recognizes that ‘women’s issues’ are economic issues, labor issues, men’s issues, American issues and give them the attention they deserve,” said Maloney.
The Ms. Foundation is a major player in trying to make the government more diverse. Earlier this year, they announced their first-ever political arm, focused on grassroots political movements and women and girls of color.
“We’re seeing more women run and win races,” said Younger. “Anytime you can add more diverse voices into a conversation you definitely begin to see change happen.”
“This marks the one-year anniversary but its not going to be over,” said Younger, “this is going to be an ongoing conversation.”
Nicole Gaudiano contributed to this report.
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