Movements like #MeToo and Time's Up evolved from journalists, celebrities, and everyday people working to bring sexual assault and sexual harassment to the forefront of our collective attention in an effort to end them. By encouraging survivors to come forward, these movements target the one key element that has allowed sexual harassment and abuse to perpetuate - silence.
These movements have not only given survivors a forum to discuss their experiences; they've also raised important questions about civil and criminal statutes of limitations, and the scope and authority of nondisclosure agreements. While these movements have had a substantial social impact, this article focuses on the impact they've had on the legal system.
The #MeToo Movement and Time's Up: Overview
Although the term was coined in 2006, the #MeToo movement was thrown into the spotlight in 2017 when several female celebrities accused media mogul Harvey Weinstein of sexual harassment and assault. Since then, women (and some men) from all walks of life have shared their experiences with sexual violence and harassment on social media.
The #MeToo movement deals specifically with sexual violence and harassment and focuses on the healing and survivorship of those who've experienced all forms of sexual abuse. Time's Up is a separate movement with specific goals, and can be considered an "action" step for #MeToo. More specifically, the goal of the Time's Up movement is to establish safety and equity in the workplace by focusing on changing policies and laws and by bringing lawsuits to hold perpetrators accountable.
In order to fund their goals, the group behind the Time's Up movement has created the Time's Up Legal Defense Fund, which provides financial and legal support to men and women who seek to fight sexual misconduct in court.
The #MeToo Movement and the Law: Highlighting Legal Issues
The #MeToo movement has forced uncomfortable -- yet critical -- conversations in the social square, but it has also highlighted important legal issues. One key issue is how the judicial system should handle older claims of abuse where evidence may be lacking or where there are spoliation issues. The movement has also shown that there are a variety of forums to secure justice outside of the criminal justice system, especially when it comes to older claims, which has also raised questions about the role that due process plays in those venues.
Criminal and Civil Courts
Most states require prosecutors to file criminal charges against a suspect within a specified period of time, known as a "statute of limitations." Although intended to promote timely prosecutions, these time limitations have also prevented victims from seeking justice for older claims. For example, despite 60 women accusing Bill Cosby of sexual misconduct, he was only prosecuted for sexually assaulting one woman because it was the only claim that fell within the statute of limitations.
The #MeToo movement has also highlighted the ability of survivors to use civil courts as another venue to raise their claims of sexual harassment and abuse. While there are still statutes of limitations issues to consider in civil cases, the standard of proof is a "preponderance of evidence," which is an easier standard to meet than the standard required in criminal cases. Also, although they don't lead to findings of criminal guilt and imprisonment, civil cases can have a wider impact by exposing liability and by forcing policy and personnel changes within organizations.
Media and Social Media Outlets
Beyond the judicial system, the movement has shown that raising allegations via social or traditional media can also be an effective way to get claims investigated and to shame perpetrators, sometimes even forcing them to step down from their positions or face termination. Often, bringing a civil suit after an employer has already investigated and disciplined or terminated a perpetrator means that those subjected to abuse could benefit from a stronger body of investigative evidence, should they seek to later file a civil suit.
Due Process Issues
People sometimes question whether the accused has been afforded "due process," especially when allegations are raised outside of the judicial system. It's important to note the difference between due process as it applies to court cases, and due process in the broader context of society. In criminal cases, due process is guaranteed by the U.S. Constitution and is meant to ensure that specific standards and procedures are met before a defendant can be convicted and imprisoned for a crime. For example, criminal defendants have certain fundamental rights, such as rights to a speedy trial or trial by jury.
However, "due process" in terms of society or the workplace is not the same. It's a norm, governed by ideas promoted in social standards and employment policies, rather than the Constitution. This type of due process is based on unwritten concepts of fairness that usually refer to the ability of both sides to address allegations. While these notions are not necessarily formal requirements, there are civil remedies in place to also help address false allegations, such as defamation and wrongful termination lawsuits.
The #MeToo Movement's Impact on the Law
It's clear that the #MeToo movement has shined a light on the prevalence of sexual assault, abuse, and harassment. In addition to sparking litigation in the courts, it's also had an effect on state laws, particularly those related to workplace conduct.
For example, a few states like Washington and California have changed their laws to restrict the use of nondisclosure agreements (NDAs) to cover up sexual harassment and abuse. Under California law, only plaintiffs in sexual harassment or assault cases can request NDAs as those accused of misconduct are barred from requiring them of employees. Washington's laws, passed in 2018, prohibit employers from requiring people to sign NDAs as a condition of employment and also void any employment contract or arbitration agreement that doesn't contain provisions protecting an employee's right to file sexual harassment or assault complaints.
The #MeToo movement has also pushed states to take a look at their backlog of rape kits with some states mandating the use of rape kits and providing increased funding in order to clear their backlogs. Additionally, some states have reconsidered their statutes of limitations when it comes to prosecuting sex crimes and have also extended or lifted their statutes of limitations to file civil suits against sexual abusers. For instance, under California Assembly Bill 1619, which was signed into law in September 2018, adult sexual assault victims have up to ten years to file a civil lawsuit against an offender.
How Does the #MeToo Movement and the Law Affect You? Explore Your Options with an Attorney
The #MeToo movement has exposed the extent of sexual harassment and abuse in the workplace and beyond, but has also forced changes in the legal system. Given its prevalence, it's likely that you or someone you know has experienced sexual harassment or abuse. There may be a number of legal options to choose from, but before deciding which to take, consider speaking with an experienced sexual harassment lawyer near you. A local lawyer will not only know the laws in your jurisdiction, but will also be able to apply the laws to your particular situation and provide personalized -- and confidential -- legal advice.
Contact a qualified employment discrimination attorney to make sure your rights are protected.