Law & the Courts

Don’t Buy the Apologetic Narrative on Al Franken

I very much appreciate Douglas Murray’s warning on the homepage that we shouldn’t blur the various lines of sexual misconduct. As he says, we can’t blur the lines between bad manners and rape. I’m keenly aware that atmospheres of hysteria can feed false narratives that all men are somehow “rapists or proto-rapists.” And I’m sure that we’ll reach the point where an accusation should make us shrug our shoulders and say, “That was bad manners, not illegal misconduct.”

But that’s not Franken’s case. Whenever there’s a photographic evidence of anything, we tend to fixate on the photograph itself — at the expense of the larger context. Here, the photo by itself appears to show a comedian groping a model, and the cheesy grin communicates a joking intent. But that interpretation ignores Leann Tweeden’s larger story

Remember, after she reacted strongly to his unwanted kiss, she claims that she avoided him as much as she could. He responded with “petty insults” and then, ultimately, groped her while she slept. Now, does all that sound like fun-loving Al was just joking around? Or does it seem more like a more-powerful entertainment figure was humiliating and degrading a woman who refused his advances? 

Not only does the distinction matter morally, it also matters legally. As I wrote before, when determining whether a person is guilty of sex crimes like sexual battery or forcible touching, intent matters. For example, in New York a person can be guilty of “forcible touching” when they make contact with a person’s “intimate parts” if it’s for the purpose of “degrading or abusing” that person. 

While rape is rape, grabbing a person’s breasts (even over their clothes) is no small thing, and it gets worse if there is malign intent. I’ve seen no one suggest that Al Franken should be prosecuted (there are a host of jurisdictional and other legal issues with a potential case), but resignation is hardly too much to ask. 

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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