Volume 24, Number 1 (2000) reprinted by permission Legal Studies ForumTHE HARVEST LOUISE HARMON * Personally, I don't like bars; I find them dark and dank, and the smoke bothers my sinuses, but I went along to appear collegial. In the beginning of a job, you can't afford to say no to these kinds of invitations, usually offered in a burst of spurious spontaneity.Why don't you join us for a drink, someone will say heartily over his shoulder as you are gathering up your books, putting on your jacket, dreaming of your pink fleece bathrobe and The Antique Roadshow. So you smile and lie, and say sure, I'd love to. You have to go, at least at first,until you have proven yourself to be a good sport. The main thing is that you don't want anyone to think that you think you are superior to them.Some white wine must be sipped, stale peanuts eaten, some jokes laughed at. It's not really sucking up. No one with real clout ever goes out for drinks. It's more like sucking sideways. I got trapped at a corner table in the dim twilight of the Artful Dodger with Greg Archer (the Third), a young man who teaches Secured Transactions and Tax. Several years below me in chronological age, and several years above me in seniority, Greg Archer (the Third) took it upon himself to educate me. He leaned on his left elbow and faced me, creating a private space in which he could hold forth in low, conspiratorial tones. I specialize in dirt, he told me, personal and professional. At first, I was put off. I don't much like dirt, but I'll have to admit that what he had to say was quite interesting,and maybe useful someday. I suppose it is in the nature of dirt that you never know when it will come in handy. Sometimes it never does, unless you are willing to count the value of psychological insight, which I always am. I like to know things about people, their history, what makes them tick. Some might accuse me of being nosy, but I think of myself as being curious, interested. And the kind of information that Greg Archer (the Third) had to impart was definitely worth storing for future reference:Who on the faculty could be not be trusted, who told every confidence to the [1] Dean, who was crazy, who drank, who copied exam questions from the BarReview materials, who had his research assistants write his law reviewarticles, who philandered. I just wanted to give you the lay ofthe land, he said, folding a cocktail napkin with his right hand like apiece of origami. I said nothing, but raised one eyebrow, a trick thatI had learned from my mother. Sometimes I find that silence, combined witha lifted eyebrow, makes people nervous, as if they believed my responserevealed a tacit judgment (which it often does). But not Greg Archer (theThird). He was too self-assured, too confident of his place in the worldto contemplate--or to care about--the judgment of a new female member ofthe faculty. He laughed, and tossed the pleated napkin onto the table.Joseph Posillico, that's the lay of the land. He's always chasing afterone skirt or another. Joseph Posillico? What kind of skirts, I asked:students or staff or faculty? These issues of hierarchy have always interestedme. There was a junior partner in my law firm who couldn't keep his handsoff the women who worked in the building: women from maintenance, secretaries,administrators, paralegals, associates, partners--he went after them all.It got him into a lot of trouble since the ethic of the firm was that onlylower level women were fair game. There were some unwritten rules aboutappropriate harassees, who could be pawed and petted and propositioned,and he broke them. Anyone below administrators was a target, and paralegalscould go either way, depending on how powerful they were. (Some of thequeen bee paralegals could not be touched, but there were others, the filersof forms, the real estate closing drones who were acceptable prey.) Onerule was clear, however: women attorneys could never be touched, consensuallyor otherwise, even if they were only associates. He never hit on me. Any kind of skirt, Greg Archer (the Third)answered. Then he paused and reconsidered, and like any good lawyer, hediscriminated. No, I take that back. I've never heard of an instance ofPosillico hitting on a faculty member or anyone on the staff. It's mostlystudents, I guess, and there's a profile. A profile? You know what I mean. He always goes afterthe same sort of woman. You could say he's got a specialty. So what's the profile? Well, he likes them older than the averagestudent, pretty but past their prime. And desperate. That seems to be aprerequisite. Sometimes they're trapped in unhappy marriages, or reelingout of them, but he's got a kind of sixth sense about when a woman mightbe vulnerable. My first year, I had an office next to his, and I'd see these older womengoing in and out of his office in tears, blowzy bleached blondes, withtoo much make up, skirts too short, fat knees that shouldn't see the lightof day. I used to think of them as bruised fruit. I was taken aback by the expression 'bruisedfruit,' and wondered for a few fleeting seconds how Greg Archer (the Third)would assess my knees. Ridiculous, I concluded, looking at his smooth face,his moussed dark hair and dazzling white teeth. This young man would neverconsider the possibility that I had knees. My silence taken as assent,he continued. Have you ever seen Posillico's office? It's amazing. He'sgot an Oriental rug, and a couple of small lamps that create this sortof orange, hazy glow, and a maroon couch made of fake suede. And on theradiator, which of course doesn't work, he's got a little boom box thathe plays music on all the time. What kind of music? Piano. Chopin, I think. You know, sadromantic music. I wondered what kind of music Greg Archer(the Third) would use for a similar scene of seduction--in his own apartment,of course, and not with a student. He was far too cautious to take anyrisks with students. Coltrane, I would be willing to put money on it: anarchic,discordant, designed to derail. My own choice would have been Verdi, orperhaps Puccini. Something operatic, tragic, music for hopeless love. And truth to tell, at the time we were havingthis conversation, before all of this started, I'm sure I would have preferredJoseph Posillico. At least from what I had seen, he was far more appealingto me than Greg Archer (the Third), with his aggressively ivy league clothes,gross grain suspenders, silly bow tie, and youthful imitation of a middle-agedman. And then, of course, Posillico was Italian. I'm a sucker for anythingItalian. I'm not saying that Joseph Posillico was attractive to me or anything,but like the women he pursued, I could tell he had been good looking whenhe was younger. Not much later, I found that out for a fact.I sat next to him at my second faculty meeting, and we were making innocuouspre-meeting chitchat, when he mentioned his daughter's performance in ahigh school play. I asked to see a picture of his children. (I don't haveany children of my own to show off, but like I said, I am a curious person.And a request to see family pictures gives us something to talk about;it effaces the thick walls between us, creating a place where light canbe detected, like the sun on the other side of an alabaster window--thewindows in San Vitale.) And so Joseph pulled a wallet from his back pocketand pried out of it a tattered color photograph of his family, sitting in front of a brick fireplace with quilted Christmas stockingsdangling in the background. It's a few years old, he said, but that'smy son Steven, and my daughter, Anne Marie. She's about fourteen there. And this is your wife? I pointed to the womanon the other side of the mantle, the other bookend. She had a prettinessof her own, for a middle-aged woman. Strawberry blonde, round rosy face,wearing a red sweater that had what looked like a sequined Santa face stretchedtightly across her ample bosom. I felt certain that she had made the quiltedChristmas stockings herself, probably from kits purchased at a craft store.My Aunt Carol used to make them. Yes, that's Angela. He put the picture backin the wallet, and then without prompting, he asked, do you want to seea picture of me in college? On spring break? Sure. I didn't think it was so odd then. Wewere, after all, just getting acquainted, looking at photographs of hisfamily, but later the oddness of the gesture struck me. Who carries aroundpictures of themselves twenty five years ago? And who shows them to a newcolleague at a faculty meeting? But when he brought out the photograph,I took it from his hands and studied it carefully. The color was faded,and the background was hard to make out, but there was Joseph Posillico,in another time and place, leaning out of a car window, no shirt on, tan,long wavy hair the color of spun gold, his teeth bared in an irrepressiblesmile that said: I'm incredibly handsome, aren't I? And I'll have to say,he was. There was a sensuousness to his mouth that was disarming. I shota look over at Joseph Posillico's face, and noticed that his mouth stillspelled promise. He had rather remarkable lips, large, supple, full, andI thought of Guinevere and Lancelot, their eyes locking as she read froma book: la bocca mi baci tutto tremante. Those lips didn't matchthe rest of his face, which bore little resemblance to the young man inthe photograph. Like most of his colleagues around the table, it was adrawn, gray face, and there was a grizzle of stubble on his flaccid cheeksthat gave evidence of a man who had given up. As Greg Archer (the Third)so succinctly put it, Joseph Posillico wouldn't get the time of day fromthese women if he weren't a law professor. I would have known nothing more of JosephPosillico or his philandering, had the Dean of Students not appointed meCounsel in a sexual harassment complaint. I was chosen, or so the Deanof Students told me, because I was a woman of impeccable integrity, andtherefore would have credibility. (One implication being, I suppose, thatI am a prude, a chronic virgin, beyond approach and above reproach, andthe other being that my male colleagues as potential harassers were atrisk of being tainted-those who lack clean hands should not be delegatedthe task of cleaning up the kitchen. Also I was not aligned with the moreradical feminists at the law school, Pat Robbins and her crew, so presumablyI would not have any doctrinal axes to grind--no gender hatred to exorcise.)My appointment prompted me to obtain a Faculty Handbook and look up myresponsibilities under the law school's Sexual Harassment Policy. The Counsel"shall investigate the matter. Such investigation shall include gatheringrelevant evidence, interviewing the person who made the complaint, theperson or persons who are alleged to have violated this Policy, and anyother person who may have relevant information." It was with a heavy heartthat I opened the file. I was not surprised to see that Joseph Posillicowas the alleged offender, nor that Christine Malverne was the complainant.As Greg Archer (the Third) had put it: there's a profile. I thought it would be a good idea to interviewthe complainant first, so I left a message in Christine Malverne's mailbox, asking her to come and talk to me on Thursday at 3:00 p.m. (She hadbeen a student in my Trusts and Estates class that semester, so I knewwho she was. I like to use a seating chart with photographs, so that Iknow the names of all my students. There's a pedagogical purpose behindthe practice: it helps me keep them in a state of perpetual dread of beingcalled on. Sometimes I find that it's hard to be imposing in the classroomwhen you're a woman, and only five feet two.) She missed the appointment,although she left me a voice mail that her son was running a fever at school;she had to go and get him. (I find women with small children are oftenunreliable.) We were finally able to meet early the following week, andshe told me her version of the story. Christine Malverne was nervous, sitting acrossmy desk, and kept fiddling with the covers on her books as she pressedthem up against her chest. I assessed her beauty: She was a big woman,about my age, maybe 35 years old, and while I wouldn't call her attractive,she had an interesting face that alternated between exotic and equine.This time she wasn't a blonde, but a redhead, and she wore big gold hoopearrings and several gold chains, including one that had a script Chrishanging from it that kept catching on her clavicle. Her finger nails, likeso many of our female students, were inappropriately long, and bright red,and she chewed gum. I was certain that her white tank top was several sizestoo small and accentuated her breasts and cleavage, although I could hardlysee through her armor of books. I wondered to myself, as I often have,how these women expect to get professional jobs, looking the way they do.I try to set an example in my own dress and demeanor, but it seems to dono good. Well, now-shall we get down to business? Muchto my surprise, I was finding this meeting incredibly awkward. Perhapsit was because I had never prosecuted a sexual harassment claim before.After all, the matter was by nature rather delicate, and I wanted to setthe right tone: professional, dispassionate, straight forward, factual.But Christine Malverne just sat there on the other side of the desk, staringat me, chewing, chewing. She looked so real, so big, and her gum went snapsnap across the chasm of silence that grew larger and larger between us.I couldn't seem to find a way to initiate the conversation. Well, Christine,I said, wading into murky waters, do you want to tell me what happened? Well, Christine took a deep breath, ProfessorPosillico was my Property teacher last semester. That's how I got to knowhim. I was having a lot of trouble with future interests, and one day afterclass he offered to give me a little extra time in his office. She laughedand sounded a bit like a neighing horse. She had finally put her booksdown in her lap, and was fiddling with the Chris chain around her neck,and yes, her white tank top was too tight. I'd heard about Posillico fromthe second and third years, how he has a bad reputation for hitting onolder women students. I guess I didn't believe it. She paused, and thenseemed at a loss for words. Did you go to his office? Yeah, I did. Christine laughed nervously.Again she lapsed into silence, and I had to prod. Did he do anything inhis office to you of a sexual nature? Uh, well, not really, not the first few times,not during the semester. I mean, you know, I just went there for help onfuture interests. I couldn't figure out the difference between a contingentremainder and oh well, I can't remember, an unvested remainder of completedivestment or something, and he was very helpful. He got out a piece ofpaper and sort of drew me a chart. I still don't really get it, but I'mnot sure anyone does. Christine paused and gave me a shy smile, as if sherecognized that she had said a foolish thing to a woman who taught Trustsand Estates. I tried to smile back, but it must have looked strained. Ido take these things seriously. It's a vested remainder subject to completedivestment, and I do get it. Judging from having taught his students inTrusts and Estates, Posillico might not. She continued. I went to his office a coupleof more times during the semester for help, and then one day, during intersession,I was in the building, and I knocked on his door to see if he was there,and he was. He asked me to come in, and I did, and then he shut the door. The other times, the door had been open? Yeah, I think so. You know, I didn't reallythink about it, but I did notice it when that one day he deliberately shutit. He told me it was easier to hear the music that way. Then what happened? Christine looked acutely uncomfortable, anddid not look me in the eye. Well, he asked me to sit down on the sofa,so I'd be more comfortable, he said, and then he asked me how things weregoing, and when I started to talk about the Property exam, he said, no,no, I mean how things are going for you, here at the law school, in yourlife. Then I started to tell him about my husband, and how he doesn't wantme to be in law school because I was making really good money before inreal estate, and now we're in major debt, plus I keep having to pay baby-sittersfor my son. I kept telling him that there'll be a lot more money when Iget the law degree, but he doesn't believe me. He hasn't been real supportiveabout this whole thing. She crossed her arms, and looked as if she mightstart crying. Her lower lip quivered slightly. The skin on her neck wasblotchy, and the circles under her eyes seemed to darken. It made me thinkof the expression "bruised fruit," and my heart suddenly went out to her. So what did Professor Posillico do? Well, he was real nice, and then I startedcrying-I cry real easy, don't ever take me to a sad movie, I'm like a realgusher-and then he got up from his chair and came over and sat by me onthe sofa, and he brought out his handkerchief. It was real clean, ironed,folded and everything. You don't see handkerchiefs much these days. Myfather used to always carry one. Christine stopped abruptly after this spateof words, and an image flashed across my mind: Angela Posillico ironingher husband's handkerchiefs with loving care, with the same loving carethat she lavished on those quilted Christmas stockings. Anyhow, Christine continued, catching hersecond wind, Well, I blew my nose and wiped my tears, and then ProfessorPosillico must have moved over on the sofa, because suddenly he put hisarm around me, you know, to comfort me, at least that's what I thought.And then he kissed me. What did you do? I got another flash:Joseph Posillico's sensuous mouth. Christine did not answer at first, and thenshe took a deep breath. Well, I'm sort of embarrassed to tell you this,but I figure it's the best thing, to be straight with you, since you'rethe Prosecutor and all. (I nodded in assent.) Well, I kissed him back.I didn't really think I would. I'm married, you know, and even though myhusband and I aren't exactly getting along, I've been faithful to him. I don't know whatgot into me, really. Then what happened? (To myself, I marveled.They worked: the small lamps with the orangey glow, the maroon sofa, theChopin-they worked.) Her voice was barely audible. Well, we madeout for a while on the sofa, and then he started to put his hand up myskirt, and I got scared. Like I said, I'm basically a good girl. It's onething to let your professor kiss you, but I wasn't ready for anything heavierthan that. I know I shouldn't have kissed him back, but he was being sokind to me, and maybe I was mad at my husband, I don't know. But I knewI didn't want him to get his hands in my pants, if you know what I mean. I didn't, but nodded anyway, just to get therest of the story out on the table. So, anyhow, I pushed him away, and I got upfrom the couch and grabbed my books, and ran out of his office. What did he do? He followed me at first, saying, wait, Christine,wait, but I was out of there, and then I ran out of the building and gotin my car and went home. I don't know how I didn't have an accident, Iwas so upset. Of course, Mark, that's my husband, he was there when I gothome, and he could see that something was wrong, but I didn't tell himwhat happened. I couldn't. I was so ashamed. He still doesn't know. ThenChristine Malverne began to cry, and instead of looking like a 35-year-oldwoman, she looked like a lost twelve-year-old. I said nothing, but handedher the box of Kleenex that I keep in my office drawer for tears shed overbotched exams. I really hate it, she blurted out, between heaving sobs,what he did to me. I know I was partly to blame, but he was my teacher,and I trusted him. He shouldn't have tried to take advantage of me likethat. And the worst of it is, I got a D in Property. Oh no, a D in Property, I thought to myselfin dismay. This is not good. Property is a four-credit course, and a Din Property is going to put a student in academic jeopardy. Students whoget Ds in Property sometimes flunk out of law school. A D in Property isnot good. Christine nodded and looked up at me witha ferocity that alarmed me. Her sadness had turned to anger in a heartbeat.I know I got the D because I wouldn't go all the way with him. I'm sureof it. He's done it before to other women students who wouldn't sleep withhim. I know that now. Have you seen Professor Posillico since then?I was curious to know what his modus operandi was when his target was amoving one. Surely he had a programmed response. They couldn't all want him to get hishands in their pants, as Christine so succinctly put it. Yeah, I've seen him a couple of times in thehallway, and he won't even look at me. It's like I wasn't even there. Shebegan to regain her composure. Have you gone to discuss your poor performanceon his exam with him? No, I won't set foot in that office again.But I'm sure it wasn't a D paper. I might not have understood future interests,but I knew that other stuff, even the Rule Against Perpetuities. That'swhy I filed this claim. To have someone else look at that exam and tellme it wasn't worth a D. I don't even care if they won't change the grade,even though it did ruin my GPA. I just want someone to say, Christine,you didn't deserve a D in Property. That son of a bitch gave you a D becauseyou wouldn't sleep with him. I thanked Christine Malverne, and told herthat I would be back in touch with her after I had completed my investigation.She nodded, gathered her books, and left my office, her face brooding,and her shoulders rounded in a posture of defeat-of despair. I then wroteJoseph Posillico a memorandum, identifying myself as the appointed Counselin this case, informing him of Ms. Malverne's complaint, giving him anopportunity to discuss the matter with me before I prepared the Charge,and advising him of his right to refuse to speak with me. I also statedmy opinion: based on my interview with Ms. Malverne, there appeared tome to be sufficient evidence to support a Charge of sexual harassment,namely his physical assault on her in his office during the intersessionand his proposition of a sexual nature, enumerated prohibited conduct inSection 3 of the Sexual Harassment Policy. Joseph Posillico immediately responded withhis own memorandum. Under the Policy, he had the right to refuse to speakto the Counsel, and he was hereby exercising that right. No inference asto the truth of Ms. Malverne's allegations should be drawn from his refusalto speak. Not only that, he continued, his relationship with Ms. Malverne,as fleeting and inconsequential as it was, constituted a Consensual RelationshipOutside the Instructional Context, referring me to Section 4 of the lawschool's Policy on Consensual Relationships. Because of the serious natureof her complaint, and the likelihood that his reputation and good namewould be tarnished by a prosecution of her claim, he was hereby requestingan informal meeting with the Dean to see if we could quickly and discretelydispose of this matter. The Dean was then cc/ed. Before I had a chance to find a copy of thelaw school's Policy on Consensual Relationships, a policy I had franklynever heard of, I got a call from the Dean's administrative assistant. Could I meet the nextday at 10:00 in the morning with the Dean and Joseph Posillico for an informalmeeting to discuss the Malverne matter? I wondered ever so briefly whyit was called the Malverne matter, and not the Posillico matter. Generallywe don't describe criminal cases by the name of the victim or complainingwitness, but by the defendant's last name. The deeper implications of myquestion eluded me at the time: who was on trial here? It was an awkward position I found myselfin. I had before me a Sexual Harassment Policy that provided for a procedureentailing a formal written charge to a committee, a hearing, counsel ifnecessary, production of witnesses, a disposition, a record, a sanction-thefull panoply of due process rights was supposed to be afforded the defendant,as well as a fair and impartial hearing of the complainant's grievance.I saw nothing in the Policy that provided for disposing of the complaintvia an informal meeting with the Dean. Yet, I saw nothing in the Policythat prohibited such an informal meeting either, and I was new at the lawschool. True, I had made a lateral move, with tenure, but I still had notbuilt much of a relationship with Dean Striker, and there were severalrequests that I planned to make of him: a promise that I would never teachthe graveyard shift during the same semester that I taught an eight o'clockmorning class, a corner office with big windows if there were indeed acouple of early retirements in the making, and a seminar in estate planning.True, these were not wickedly wild requests with lots at stake, and inretrospect, perhaps I should not have acquiesced to the informal meetingwith no struggle whatsoever, but I wanted to advocate for myself on solidfooting. Refusing the Dean's request to meet informally might have mademe appear suspect, not a team player. Before the informal meeting with Posillicoand the Dean, I looked up the Policy on Consensual Relationships and foundthat it followed the Sexual Harassment Policy in the Faculty Handbook;the faculty adopted both on the same day. I don't know how I missed itin the first place-I am usually much more careful about reviewing the relevantstatute-but I did not know to look for it. Indeed, the very possibilityof such a policy had never entered my mind. In my prior law school, allsexual relations with students, regardless of whether the student was enrolledin your class, were proscribed, on the theory that there was an innateimbalance of power between all students and all faculty, and that as longas a student was living in our community, he or she ought to feel safefrom predation by any faculty member. Ironically, this law school's Policy on Consensual Relationshipsbegan with lip service to the ideals of professionalism and how facultymembers should not abuse their power over students. "Faculty mem-bers exercisepower over students, whether in giving them praise or criticism, evaluatingthem, making recommendations for their further studies or their futureemployment, or conferring any other benefits on them. Trust and respectare diminished when those in positions of authority abuse their power."The Policy then went on to proscribe consensual relationships in the InstructionalContext: "No faculty member shall have an amorous relationship (consensualor otherwise) with a student who is enrolled in a course being taught bythe faculty member or whose academic work (including work as a researchassistant or teaching assistant) is being supervised by the faculty member."Notwithstanding a recusal requirement if any decisions were to be madeabout the student in question, "nothing contained herein is intended toprohibit, or to make punishable as a violation of this policy, a consensualrelationship between a student and a faculty member where there is no presentinstructional or supervisory relationship." I've been around a number of work settingsin my day, legal and educational, enough to know when I was in the presenceof a compromise. These two policies, the hands off Sexual Harassment Policyand the hands on Consensual Relations Policy shared a history, and I wantedto know what it was before I went in to talk to the Dean and Posillico.My first thought was to call the king of dirt, Greg Archer (the Third),but he was uncharacteristically terse on the phone. His specialty, or sohe explained, was personal dirt, not institutional history. What he didrelate was somewhat enlightening. The two policies were passed at the sametime, he said, a couple of years before he had joined the law school. Hehad heard that there was a big battle over the Sexual Harassment Policy,with the ardent feminists taking an absolutist position: no sex with anystudent whatsoever, and the more libertarian men taking a similar hardline: no regulation of any sexual behavior whatsoever. The feminists, andI have to assume here that this meant Pat Robbins et al, took the positionof my former law school: the power imbalance was so great, that any relationswith any student was suspect, regardless of whether the student was enrolledin the professor's class. The libertarian men argued that the law schoolhad no business interfering with the personal conduct of its students orits employees. These were adult women, not children, and John Stuart Mill'sharm principle applied: no regulation of personal conduct so long as itdid not directly hurt anyone. The compromise was the augmentation of the Sexual Harassment Policy of the Consensual Relations Policy. Of course I was dying to know what positionJoseph Posillico had taken in this debate, but Greg Archer (the Third)did not flesh out his story with any flesh, and I could not ask, for fearof revealing why I might be interested in either of the two policies. (Ican be very discrete at times.) I actually could not imagine Posillicobeing active in the dis-cussion at all, even though I suspect he wouldhave voted for absolute sexual freedom, provided there had been a secretballot. But he is not the sort of man to take a stand on much of anything,at least not in a public forum. In faculty meetings, he sits in the cornerand goes through his mail, ripping envelopes loudly, clearing his throat,getting up frequently to go to the bathroom-all this I learned from sittingnext to him a couple of times-but he is not inclined to speak or take aposition. He is more dynamic in other settings, or so I have been led tobelieve. I wore my navy blue suit the next day, theone with the brass buttons, and a plain white silk blouse, for the meetingwith the Dean and Posillico. It was a professional outfit, feminine butbusinesslike, and that was the image I wanted to portray, although I cheatedon the shoes a bit, wearing my navy heels with the open toe. (I did wearstockings with opaque reinforced toes, however, so that no one would seethat my toenails were painted a delicate fuschia. Even in the winter, evenif no one else sees them, I like my feet to look nice.) At ten o'clock,the two men were already waiting for me in the Dean's office, and I wonderedfor a minute whether the "Malverne matter" had been discussed before myarrival. Won't you come in, Eve. The Dean gesturedto the empty chair next to Posillico who nodded in my direction with theritual politeness of an adversary. I responded in kind, and noted to myselfthat Posillico did not look that good. His face was the color of the insideof a pizza carton, and he looked constrained by his tan corduroy jacketthat was two sizes too small. I sat down, crossed my legs, and folded myhands in my lap. I certainly was not going to initiate the conversation. Well, now, Eve. You've been appointed as Counsel in Ms.Malverne's Sexual Harassment claim against Joseph. It all seemed so cozy:Eve, Joseph. Only the complainant-the outsider-had a last name. I noddedcurtly and stared at my hands, saying nothing. I wanted to see what directionthe Dean was headed. I glanced up at him for a second and suddenly realizedthat Dean Striker bore a striking resemblance to my Uncle Louis, my mother'sbrother who ran an insurance company in Kansas City. I had never noticedit before; they both bore the same sleek, weasely look, smooth skinned,slicked back hair, sharp little black eyes. The Dean continued. You can imagine how serious such aclaim is, I am certain, and the attendant risk of harm to the alleged perpetrator'sreputation. I nodded again and braced myself. This was going to be a lawyertalk meeting, I could tell. After we both got your memo, Joseph calledme yesterday quite concerned, and suggested that we have this little informalmeeting to see if we could iron things out. The Dean smiled and openedhis palms out in supplication, as if he were trying to arbitrate a disputebetween two fractious siblings. I let him go on. Joseph has admitted to me that he may havebeen a tad indiscreet with this young woman, but that she was more thanwilling, and indeed that she led him on. He also indicates that Ms. Malverneis a little bit unstable, and we're both wondering what she has told you. Well, I'd like to say first that there'sno evidence that the complainant is unstable. (I wanted to get that onthe record, although I'll have to admit I was going out on a limb. Christinedid seem rather labile, and I wouldn't want to have to vouch personallyfor her mental health.) I continued: The complainant says that he kissedher while she was crying in his office, sitting on the sofa, and that hetried to move his hand up her skirt. And she claims that he gave her aD in Property because she was not willing to go to bed with him. Oh, no. Posillico suddenly came to life andscooted to the edge of his chair. That part isn't true about the hand upher skirt. We did kiss once. I already told the Dean about that, and Ideeply regret it. It showed poor judgment, I know, but it was a momentof weakness on my part. I know I shouldn't have, but it was clearly a consensualrelationship under our policy. It was more than consensual. She initiatedit. His face was no longer gray, but pink, andnow the collar of his blue shirt looked too tight too. The Dean raisedhis eyebrows at Posillico as if he wanted him to go on. Well, he said,the part about giving her a D is Property is true, but believe me, sheearned that D fair and square, every 62 points of it. I'd brought a copyof her exam with me today in case you cared to take a look at it. He bentover and reached into his briefcase that leaned up against the chair andhanded me a Xerox copy of a bluebook. I took it from him without lookingat it, laying it in my lap. Now it was my turn to speak: I don't thinkit's relevant that the relationship may have been consensual. It was clearlyan amorous relationship, and Christine Malverne was a student enrolledin your Property class. Even if she had initiated the kiss, and I am notsaying that she did--that isn't her story by the way--she was in an InstructionalContext. That means any sexual behavior with her is proscribed, regardlessof her state of mind. (I was pleased with myself. I had done my homework, and my legal argument just poured out of my mouth, likehot syrup at IHOP.) No, she wasn't. Wasn't what, Joseph? The Dean interjectedhimself into the conversation, partly to defuse the tension, I suspect. She wasn't in my Property Class any more.Joseph Posillico pulled himself up in his chair, and stroked the nap ofthe corduroy on his left arm. I had already turned in my grades in Property.It was intersession, and Christine Malverne and I were not in an InstructionalContext when the alleged behavior took place. I had already turned in mygrades. The Dean opened the file drawer at his leftknee and thumbed through the files, pulling out one that read in blackmagic marker HARASSMENT FILE. He put on a pair of half glasses and pouredover the Consensual Relationship Policy, running his finger slowly overthe text. Posillico and I both sat in silence while he read, but inwardly,I blanched, remembering now that Christine had said that her encounterwith Posillico had happened during intersession, a fact that had not seemedrelevant to me when I heard it. This was probably because it had neveroccurred to me that Posillico could possibly have finished grading over90 Property exams before the intersession was over. Most of us take a monthor more to grade our fall semester bluebooks, turning our grades in duringthe first or second weeks of the spring semester. This is particularlytrue of the Property teachers because theirs is always the last exam given,usually right before the holidays. For the first time, I wondered whenPosillico had handed his Property grades in. I think, Eve, that Joseph cannot be guiltyof sexual harassment under our policy, if what he says is correct. If hisProperty grades were already in, and if she consented to the kiss, thenI think our policy does not proscribe that behavior. It may discourageit. The Dean took off his glasses and rubbed his eyes. And I have to say,Joseph, he continued, that I think you showed poor judgment here, evenif the girl started it, and even if she has a history of mental instability,but . . . He tapped the policy with his index finder, and the entire foldershuddered. I don't think there's anything criminal about a consensual kiss.Posillico nodded vigorously in assent. Indeed, now the Dean was noddingas well, but at a slower pace, and the two men looked like a couple ofthose bobbing head dolls that some people used to put in the back windowsof their cars. Up and down their heads went, in a syncopated dance of malebonding, a dance of exclusion, of certainty in their position, and I knewwhat was going to happen: This case was going nowhere. But what about the hand up the skirt, I stuttered.I'll have to admit, I was flustered, and my legal arguments were leakinglike water pouring through the holes of a colander. All I could think of was ChristineMalverne crying in my office, her splotchy skin, the dark circles underher eyes, her look of desperation. Even with her emotions too close tothe surface for comfort, I had instinctively believed her version of thestory. It had never occurred to me that it was inaccurate, and after havingsat through the informal chat with the Dean and Posillico, I was even morecertain she had told the truth. Doesn't that constitute an assault, I protested? My argument is this, Posillico said, settlingback into his chair again, and crossing his legs. He had calmed down andturned gray again. He knew that he was safe. First of all, I deny thatI put my hand up her skirt. We kissed, that's all, and she started it.I've heard she's having trouble at home, and is looking for a way out.Second of all, let's say in the alternative, shall we, for argument's sake,that I did put my hand up her skirt. That's usually the next step in thesekinds of situations. We all know there's a kind of natural progressionto these things, and a guy can't possibly know that the next step's notconsensual until he tries it and the woman says no. Then if she says no,and he goes on, well, then you've got yourself an assault. But it's notan assault until that moment. There's a presumption of consent that canbe inferred from her prior consent to the earlier stages of the operation.She says yes to the kiss, and then from there, you move forward, step bystep, obtaining consent for each new step as you go along. So what you'vegot to prove-and I doubt seriously you can do that since it's her wordagainst mine, and the woman has got some real problems-is that I persistedin putting my hand up her skirt after she said no, assuming arguendo, thatI had done so? I was dumbfounded. As far as I knew, ChristineMalverne had gotten off the sofa, gathered up her books, and left his officein tears. He didn't continue to put his hand up her skirt because the personwearing the skirt got up and left; he couldn't continue. The depth of hislegal analysis also dumbfounded me. This was sexual harassment as onlya lawyer could do it. Posilicco should be teaching Criminal Law. Propertywas a waste of his talents. The Dean got up from his desk and darted likea small mammal in pursuit towards the door, a sign that he was ready tofinish our informal meeting. Well, Eve, I suggest that you consider allthis and do what you think is the right thing. We all know that you'llconduct yourself in a professional manner. Thank you very much, both ofyou, for coming in this morning to have a little chat. He gave us botha damp handshake and ushered us out. I picked up the copy of Christine Malverne'sProperty exam, and left Dean Striker's office; Posillico was right behindme. We didn't speak to each other, but went our separate ways: He to his office, and I to theRegistrar. When I first went into practice, I learnedearly on the virtues of ingratiating yourself with secretaries. They providedthe grease of the operation, the lubrication needed to make the cogs ofthe law firm turn. And they knew everything. Later on I discovered thesame thing about the law school. Get to know the secretary to the Dean.Get to know the secretary to the Admissions Office. Get to know the secretaryto the Registrar. Not only are they helpful, but they are also a wealthof information--if you genuinely treat them well, that is. I have learnedto exploit the gratitude that the women below me in the hierarchy feeltowards me. Actually, it is not exploitation, but a form of exchange. Iembrace the simple fact that she is a human being, and she, in return,yields information. Karen, I said softly to the young woman whoassists the Registrar. She looked up at me from her computer and gave meher slow, lopsided smile. Behind her retro granny glasses was a pair ofintelligent, green gray eyes. Could you do me an off-the-record favor? Sure, she said without missing a beat. I likeKaren. She is from the Midwest too. I'm curious to know when Joseph Posillicoturned in his Property grades for last semester. Karen typed something on the keyboard andthen waited for the screen to light up a long list of student numbers andaccompanying grades. On the bottom of the third page of the list was aline for the faculty member's name, and the date of submission: December29th. It was the first thing on a Monday morning,she volunteered. I remember because he was waiting outside the office forme to unlock the door at nine. Well, it was a little after. I'm alwaysa little late in the morning because I pick up bagels for the office. Youknow, she continued, Posillicco was the first faculty member to turn inhis grades which is pretty amazing when you consider his exam was onlygiven the week before. He's always like that. We used to kid around thathe just threw the bluebooks down the stairs and gave As to the ones atthe bottom, and Bs to the second step, and Cs and Ds to the exams thatdidn't fly. Thanks, Karen. I appreciate it. Karen gaveme a wink and said, No problem, and I went back to my office. Without turningon the lights, so no one would know I was in my office, I sat down at mydesk, and made a phone call to Christine Malverne. Much to my surprise,she answered the phone. She sounded breathless and surprised, and in thebackground I could hear the voice of an obstreperous male child. Christine, this is Professor Thomas. The otherday when I interviewed you, I forgot to ask you something. Do you rememberthe date of the incident? I know that you said it was during intersession, butI don't think you said exactly when it happened. Sure, I remember, she answered without hesitation.Well, wait a minute. I know it was on a Monday morning. Just a second,let me check my calendar. She paused for a second, presumably to dig intoher purse for a datebook, and then she said, Oh yes, here it is. I remembernow. It was on December 29th, about eleven in the morning. I thanked her and told her that she wouldbe notified of the next step in the proceedings by letter. Then I hungup the phone and read her Property exam in the dusky light of my underwindowed office, and while it was devoid of any markings by Posillico,no point numbers in the margins, no evidence of a disappointed (or responsible)grader, it was truly, truly a D paper. Her definitions and rules were sloppyand imprecise, her legal analysis misdirected, and she had totally forgottento answer the second part of the last question. But despite its overallpoor quality, I could not categorically say: this is a person who shouldnot be in law school. Let's put it this way: I had seen far worse, andI had seen exams as bad as this written by people who later on figuredout the game and now successfully practice law. The writer was intelligent,if confused. She used the language well, there were periodic flashes ofinsight, and oddly enough, she was right: she did understand the Rule againstPerpetuities. But Posillico too was right: on this Property exam, ChristineMalverne had earned her grade, all 62 points of it. I sat at my desk in the dark for a long timeand thought over the situation. I knew that I had to dismiss the complaint.Everyone who would hear the case was a lawyer, and any lawyer who readthe policy and heard the evidence would come to the same conclusion asDean Striker: when Posillico had made that first move towards ChristineMalverne on the couch, she had not rejected him, which made the conductarguably consensual, at least for the initial stages of the encounter.And her apparent consent was relevant because of the timing of the incident:she was no longer in an Instructional Context with Posillico because hisgrades had already been turned in, even though they were so hot, the computerin the Registrar's office was still smoking. As is true of most legislativecompromises, it served to exculpate. Still, she had earned that D fairand square, and could be solicited for an amorous relationship. Sitting there in the dark, I got madder andmadder about what Joseph Posillico had done to Christine Malverne, andprobably to innumerable, unnamed women throughout the years who had hadthe misfortune to walk the halls of the law school during intersession.It was a dangerous time to be about, for I had no doubt that he had madea habit of it, at least twice a year, of rushing through those bluebooks, turning in his grades to the Registrar, heading right up to his office,fluffing up the pillows, plugging in his boom box, and the hazy orangelight, and opening the office door to see which newly exed, perhaps soonto be axed, woman student would wander in--to discover what piece of bruisedfruit had fallen from the tree, waiting for his soft fingers to scoop heroff the ground and into his basket. Soon after the complaint was dismissed, ChristineMalverne withdrew from the law school. I noticed that she had been missingin my Trusts and Estates class, and had inquired about her in the Registrar'soffice. The official line was that she was having financial trouble, Karensaid, but her GPA was really weak, and she was having some emotional problemsas well. Greg Archer (the Third) told me in the faculty lounge one daythat Joseph Posillico had run into some trouble last semester with a sexualharassment claim, but that the girl was a nut job and had to leave thelaw school. I did not reveal to him that I was the Counsel in the caseor that I knew the truth of the matter. To tell Greg Archer (the Third)what really had happened to Christine Malverne would have done no good--forher, or for me either. Both of us would have become known as nut jobs inthe faculty lounge; perhaps both of us would have had to leave the lawschool. And so I have kept silent about the Malvernematter, as I have come to think of it, although there have been times thatI considered telling the whole story to Pat Robbins. She would have hadsomething to say--and to do--about Joseph Posillico's philandering. Butthat is a line I have decided not to cross, at least not for now. Thereis too much at risk for me to form that alliance. But my silence has broughtme no peace. Christine Malverne haunts me, in my thoughts and in my sleep.Her gold chains, the one with Chris dangling from it, her tears, her mottledskin, her future in real estate, her debt, her sullen husband, her demandingchild, her shattered trust, her rage, her sad, sad horsy face. Somehow,at some point in the proceedings, I feel that I let her down, but in goingover and over it in my mind, I still can't find the critical juncture whereI took a wrong turn, where I made the wrong decision. Che la dirittavia era smarrita. Next week I have a lunch date with Angela Posillico. Icalled her out of the blue. It turns out that we both love opera. * Professor of Law, Jacob D. Fuschsberg Law Center,Touro College. |
