Governor Andrew Cuomo resigned this week, following the publication of a report which found he had ‘sexually harassed a number of current and former New York State employees by, among other things, engaging in unwelcome and nonconsensual touching [and] making numerous offensive comments of a suggestive and sexual nature that created a hostile work environment for women’.
The part of this story that caught my attention was Cuomo’s repeated protestations that what had happened was not harassment, it was ‘miscommunication’. Referring to a complaint made by his executive assistant Charlotte Bennett, he told the investigators that Bennett had ‘processed what she heard through her own filter. And it was often not what was said and not what was meant’. At a press conference after the report was published, he again insisted that Bennett had ‘heard things I just didn’t say’.
This didn’t get my attention because it was novel or unexpected. We’ve heard it before and we’ll undoubtedly hear it again. So, this may be a good time to take a closer look at the ever-popular ‘miscommunication’ defence.
There are several reasons why this defence is useful to men like Cuomo. One is that it stops short of calling the complainant a liar: that’s also popular, of course, but for a liberal politician with a lot of female supporters there’s something to be said for a less overtly woman-blaming approach. It also has the advantage of resonating with beliefs about communication which are part of our cultural common sense. Cuomo suggested that some of the complainants had misinterpreted his actions because of cultural differences (he’s Italian-American, he touches everyone); he also mentioned generational differences (he’s 63, you have to make allowances). And lurking in the background was the idea that men and women routinely misunderstand one another because they’re from different planets, speak different languages, and process reality through different ‘filters’.
The claims made in self-help books about ‘male-female miscommunication’ are not, in fact, supported by credible evidence. But the miscommunication defence contains a core of truth which makes it difficult to refute conclusively. Because humans are not mind-readers, and language is not a rigid code in which every utterance has only one possible interpretation, there’s always room for doubt about what someone really meant by what they said.
When Andrew Cuomo says of Charlotte Bennett that she ‘heard things I just didn’t say’, he’s describing what all of us do all the time in our efforts to understand other people. We have to ‘hear things they didn’t say’, because not everything we need to make sense of an utterance is in the words a speaker uttered. Some of it we have to supply ourselves, using contextual information, background knowledge about the world, and our ability to reason about how everything fits together.
If someone says to me ‘it’s cold in here’, is that a statement or is it an indirect request to close the window? To decide, I have to put the words together with other relevant information. If we’re two strangers sitting in a public building (where neither of us has the authority to go round closing windows, or the obligation to make other visitors comfortable), I’ll probably treat it as small-talk and respond in kind (‘yes, it’s freezing’). But if the speaker is my boss who’s just walked into my office, I might well take it as a request and respond by closing the window. In which case, clearly, I will have heard something my boss didn’t actually say.
Because she didn’t actually say it, however, it could turn out that I got it wrong. Maybe when I move to close the window she’ll say ‘oh no, don’t do that, I like it cold’. It’s always open to the speaker to deny that what you inferred was not what she intended. And to complicate matters further, when she denies saying A and meaning B, that could be because she genuinely didn’t mean B, but it could also be a strategic denial: she did in fact mean B, but it’s in her interests to say she didn’t.
Men accused of sexual harassment have an obvious interest in denying they meant what the complainant took them to mean. And this will often be made easier for them by the nature of the communication whose meaning is in dispute. While some forms of verbal sexual harassment may be direct enough for their meaning to be indisputable, others are very indirect, relying on the hearer to ‘read between the lines’. In this respect, sexual harassment is not unlike another linguistic practice through which sexual interest may be communicated: flirting.
Flirting has been defined by the linguist Scott Kiesling as ‘an off-record negotiation and recognition of interpersonal desire’. ‘Off-record’ means that the participants don’t put their cards on the table: they leave things inexplicit, vague or ambiguous. It’s been suggested that this element of uncertainty is part of what makes flirting fun–it keeps the participants guessing and prolongs what’s been called ‘the excitement of possibility’. In the case of sexual harassment, however, inexplicitness serves less benign purposes. Uncertainty about the harasser’s intentions only increases the victim’s discomfort (is she misjudging the situation? If she objects will she be being unfair?), and in the event of any challenge it gives the harasser ‘plausible deniability’.
In 2003 the conversation analyst Liisa Tainio published an analysis of a phone conversation in which a Member of Parliament in Finland sexually harassed a 15-year old girl (he was later convicted of attempting to sexually abuse a child). This was the second call he had made to the girl: after the first she decided, with the help of her family, to arrange another call and record it. Tainio’s transcript confirms that inexplicitness is a key feature of the harasser’s talk. At no point does he explicitly mention any recognisably sexual activity: his proposition to the girl, which he repeats in various forms no fewer than 15 times, is that they should ‘go for a ride’. At one stage he mentions the possibility of going to a hotel: that might hint at a sexual intention, but since there are other, non-sexual things one could do in a hotel, it remains ambiguous and deniable.
However, Tainio points out two other features of the call that support an interpretation of it as harassment. One is the repetition of the proposition. Issuing the same invitation 15 times in a single conversation is highly marked behaviour. Analysis has shown that if someone is going to accept an invitation they will normally do so promptly; if they hesitate or hedge that will be heard as declining, even if it isn’t followed by a direct refusal (refusing by ‘just saying no’ is in reality very rare). The girl does hesitate and hedge (‘I don’t know’… ‘I’m very busy’), but the MP ignores this, and keeps re-issuing the invitation. By normal standards he is badgering her, and that’s one piece of evidence suggesting harassment.
The other piece of evidence that he’s harassing her is the fact that he tries to blackmail her. He informs her that he knows (because he’s been spying on her) that she has had a boy in the house in her father’s absence, and then says:
Listen, I know more about you than you think. I won’t ever tell these things to your Daddy, y’know …cause I do know your Daddy… I won’t gossip, I won’t do that, I’m nice enough …but I know a lot about you
This is a good example of an utterance whose intended meaning differs from its apparent meaning. On the surface he’s promising not to tell the girl’s father what he knows, but by implication he is threatening to tell unless the girl co-operates.
Despite the creepiness of this man’s behaviour—spying on an adolescent girl and calling her at home to ask her out—Tainio tells us that the police and the press were initially reluctant to treat it as sexual harassment. That may be because, as she says, ‘there is no one single feature of the talk which could be “typical” of sexual harassment’. In particular, the MP makes no explicit and unambiguous sexual propositions. Tainio’s analysis picks out several different features (the badgering, the hesitant or hedged responses, the veiled threats), and suggests that it’s only when you put them all together (along with the information that this is an adult man talking to a 15-year old girl) that the case for sexual harassment becomes compelling.
Could we make a similar analysis of the interaction which prompted Charlotte Bennett to accuse Andrew Cuomo of sexual harassment? Not quite, because we don’t have a recording of the interaction; but we do have a detailed narrative account of Bennett’s testimony, which is included in the report I linked to earlier. Here’s an extract:
the Governor asked her how long it had been since she hugged someone, and complained that he had not hugged anyone in a long time. Ms Bennett understood that the Governor did not seem to be asking about platonic hugs, because when she responded that [he] could hug his daughters he responded with something like “No, no, not like that–a real hug”. Ms Bennett testified that the Governor then said he was lonely and that he wanted a girlfriend in Albany. In the same series of conversations, the Governor asked her if she had ever been with older men and whether she thought age mattered in relationships. According to Ms Bennett, while she was trying to figure out how to answer…he cut her off and said “I don’t think [age differences] matter”. [He] then said that he would have a relationship with someone who was “22 and up” or “over the age of 22”. Ms Bennett noted that earlier the same day she and the Governor had discussed the fact that she had recently turned 25. The Governor also asked Ms Bennett if her last relationship had been monogamous.
From this Bennett concluded that Cuomo was expressing a sexual interest in her—something he strenuously denied, saying she had ‘processed what she heard through her own filter’ (i.e., her interpretation was not grounded in any plausible reading of what he said to her). To assess these competing accounts, we need to reconstruct the process Bennett might have gone through to get to her conclusion. Were her inferences, as Cuomo suggested, unwarranted, or were they, in context, reasonable?
We can begin by acknowledging that Cuomo didn’t explicitly say he wanted a sexual relationship with Bennett (if he had there would be nothing to argue about). He did, however, introduce the topic of sexual relationships into a conversation that took place at work, and you would expect someone in Bennett’s position to treat that as meaning something. You would also expect her, in pondering what it might mean, to take account of who was talking to whom (sex-talk addressed by a man to a woman has a different range of potential meanings from the same kind of talk between two male colleagues, for instance). Of course, the fact that he broached the subject does not, in itself, license the conclusion that he was hitting on her (though it doesn’t rule out that possibility either); but there were other clues in the details of what he said. For instance, he mentioned wanting a girlfriend in Albany (he knew Bennett was living in Albany); then he asked if she’d had relationships with older men (he’s an older man himself, nearly 40 years older than Bennett), and followed up by saying he’d have a relationship with anyone older than 22 (Bennett was 25 and that had been mentioned earlier in the day). Finally he asked if her previous relationship had been monogamous (a question that could be heard as probing her openness to casual or illicit sex).
As in the Finnish case, you can’t point to any single thing Cuomo said as definitive: you have to put it all together and consider the cumulative effect. That’s evidently what Charlotte Bennett did, and while we can never know with 100% certainty whether the conclusion she ultimately came to was right (in the sense of reproducing exactly what was in Cuomo’s mind), I think we can reject the claim that she simply imposed an interpretation which the evidence did not support. She did have to read between the lines, but those lines weren’t just figments of her imagination.
Cuomo, of course, disputed that. He claimed that his reasons for broaching the subject of sex were related either to his responsibilities as Governor (e.g., his comments about hugs expressed a general concern about the emotional impact of Covid restrictions on New Yorkers) or to his role as Bennett’s mentor (he said he’d asked her about her experience with older men because he’d heard rumours she was involved with someone older and he wanted to give her a chance to talk about it). Once again, we can’t be 100% certain these explanations are untrue, but we might think they’re less convincing than the one Bennett constructed from the same evidence. That appears to have been the view of the investigators, whose report describes Cuomo’s account as ‘unpersuasive’.
Am I saying that there are no circumstances in which it would ever be legitimate for someone like Cuomo to claim that miscommunication had occurred? No: clearly people can and do misunderstand one another. But I don’t think just saying someone misunderstood you is sufficient to make the case, and I also don’t think communication between men and women has some special propensity to go awry. In fact, I believe that so-called ‘male-female miscommunication’ often doesn’t involve misunderstanding at all; what’s presented as a misunderstanding is actually a conflict.
There’s a famous line in the 1967 prison movie Cool Hand Luke, spoken by the prison warden after Luke has escaped and been recaptured: ‘what we’ve got here is failure to communicate’. They both know communication is not the issue. Luke doesn’t defy the warden because he doesn’t understand him. His defiance is a challenge to the warden’s authority. It’s a conflict, not about what words mean, but about who gets to impose their will and who is obliged to submit.
Back in the days when sexual harassment, in Gloria Steinem’s words, ‘was just called life’, women on the receiving end of behaviour like Andrew Cuomo’s had little choice but to submit. They might complain about it privately, but it was difficult to challenge the prevailing view of harassment as just normal male behaviour. Harassers didn’t need to justify themselves, because they didn’t expect their behaviour to have consequences. The courts agreed that employers could not be expected to regulate this kind of behaviour, since, in the words of one US judgment quoted by Gillian Thomas in her history of Title VII,
The attraction of males to females and females to males is a natural sex phenomenon and it is probable that this attraction plays at least a subtle part in most personnel decisions.
Today things are different. Sexual harassment has been named and defined as a problem; workplaces have policies that prohibit it, procedures for reporting it, and sanctions for those who perpetrate it. In practice we know this hasn’t solved the problem. But it has had some consequences, and in my view the popularity of the miscommunication defence is one of them. This defence is a weapon in the ongoing conflict between men who still feel entitled to harass women, and women who’ve been emboldened to challenge that.
In this case the conflict was resolved in favour of the women. But the struggle isn’t over. Though it didn’t prevent the fall of Andrew Cuomo, the miscommunication defence remains an obstacle to justice, and feminists must continue to point that out.