I began this article by asking you to decide what disciplinary measures, if any, should be taken against a male employee who sexually harassed a female co-worker by grabbing her breasts and then making a comment about her breasts to a crony on the telephone. The Chrysler Corporation fired a harasser for precisely this behavior, but was overruled by an arbitrator. The perception that sexual assault is less serious than theft is appalling and not unique to this case. Under sentencing guidelines for the U.S. federal courts until 1994, rape was punished far less severely than robbery. Many of the state supreme court task forces on gender bias in the courts have urged that the state sentencing guidelines for rape be increased to take account of the profound psychological trauma of sexual assault.
Women lack collective credibility, contextual credibility, and consequential credibility.
Changing this requires an intensely conscious effort. Some steps that other judges have taken include monitoring their response to lawyers who appear before them to see whether they are surprised when a woman is able and a man is not, and mentally switching the sex of the individual they are evaluating to ask themselves whether they would respond the same way if this woman were a man and vice versa. Lynn Hecht Schafran is Director of the National Judicial Education Program to Promote Equality for Women and Men in the Courts, a project of the NOW Legal Defense and Education Fund in cooperation with the National Association of Women Judges.