When Sexual Abuse Is Common Knowledge - But Nobody Speaks Up

Boston Globe

4 Pages Posted: 6 Aug 2018 Last revised: 24 Jun 2019

See all articles by Zachary D. Kaufman

Zachary D. Kaufman

University of Houston Law Center; Boston University - School of Law; Washington University in St. Louis - School of Law; Stanford Law School; Yale University - Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: August 3, 2018


In situations where lots of people know or suspect that sexual crimes have occurred, why do bystanders keep silent? Ignorance is the defense offered by US Representative Jim Jordan, a potential House speaker. Several former Ohio State wrestlers say the team’s physician sexually abused them during Jordan’s tenure as a coach at the university. The doctor’s conduct was common knowledge in the locker room, some accusers maintain, but the congressman insists he knew nothing about it. The #MeToo movement has shown not only how rampant sexual abuse is, but also how often third parties disregard it — or even enable it. At least 16 people admitted witnessing or knowing of Harvey Weinstein’s sexual abuse; his behavior was notorious within Miramax and the Weinstein Company. Officials from the FBI, US Olympic Committee, USA Gymnastics, and Michigan State University were slow to act on allegations that physician Larry Nassar was sexually assaulting young gymnasts. The space where restaurateur Ken Friedman, chef Mario Batali, and others allegedly committed sexual misdeeds was commonly referred to among industry insiders as “the rape room.” It’s striking how often sexual abuse occurs in situations where other people — sometimes many other people — have reason to suspect what’s going on. While punishing perpetrators and the institutions that shield them is overdue and essential, we should also consider what might prompt individual bystanders to act instead as “upstanders” — people who intervene to support others in need. What would it take to promote a culture in which bystanders speak up? The law can help. I propose, in a forthcoming law review article, that we take a more comprehensive, aggressive approach to third parties aware of sexual abuse. We should use a combination of carrots and sticks, including state and federal laws that make it one’s legal duty to report sexual crimes to police. Such duty-to-report laws express a society’s revulsion at silence — treating it as a type of complicity. Given how often sexual abuse occurs with the tacit knowledge of third parties, it requires a collective response. A combination of rewards and duty-to-report laws could prompt would-be bystanders to get off the sidelines. #MeToo has been a powerful rallying cry, but upstanders also need to say #WeDo.

Keywords: sexual violence, rape, sexual misconduct, sexual abuse, criminal law, criminal procedure, torts, tort law, Bad Samaritan laws, duty to report, state law, federal law, foreign law, comparative law, bystanders, upstanders, punishment, prevention, deterrence, incentives, mass incarceration, metoo

Suggested Citation

Kaufman, Zachary D., When Sexual Abuse Is Common Knowledge - But Nobody Speaks Up (August 3, 2018). Boston Globe, Available at SSRN: https://ssrn.com/abstract=3225992

Zachary D. Kaufman (Contact Author)

University of Houston Law Center ( email )

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Yale University - Law School ( email )

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Harvard University - Harvard Kennedy School (HKS) ( email )

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