Susan Estrich: Matt Lauer's mistaken defense
Susan Estrich: One of the essential tenets of the reform effort of the past four decades was to recognize that consent can never be presumed: Not only does no mean no but consent also requires an affirmative and competent yes. That means it can't be presumed from going upstairs. Or from kissing. ...
In his open letter responding to an allegation of rape contained in Ronan Farrow's new book, Matt Lauer (and, presumably, his lawyers) shows yet again that he doesn't get it. "It" being abuse of power, the meaning of consent and the offensiveness of his approach. "It" being the law -- as it has evolved, thankfully.
He claims that his "silence" to date has been a mistake. Perhaps. But his defense is worse than silence.
Brooke Nevils told author Ronan Farrow that in 2014, when she was a junior NBC employee, Lauer forced her to have sex in his hotel room at the Sochi Olympics, according to a report by Variety. She says she was too drunk to consent to anything and, in particular, that she told him repeatedly she did not want to engage in anal sex.
Lauer says, "It began when she came to my hotel room very late one night in Sochi, Russia."
In the old days, going to a man's hotel room was the end of the case. Once you did that, much less had a drink or drinks with him, you might as well have given an all-access pass, presumed consent, even if you said no. It was "asking for it," people used to say.
And drinking? The law said that you had to be "competent" to consent, and that it's rape to have sex with a woman incapable of knowingly giving consent. In practice, if you were drunk in a man's hotel room, it wasn't a "real rape."
One of the essential tenets of the reform effort of the past four decades was to recognize that consent can never be presumed: Not only does no mean no but consent also requires an affirmative and competent yes. That means it can't be presumed from going upstairs. Or from kissing. Or from having one kind of intercourse. In the workplace, even consent isn't enough. When a powerful man seduces a junior employee, it is presumed that he is abusing his power. Every day, women consent to sexual relationships with men because the men have power over their lives.
The letter continues with Lauer saying she could not have felt pressure about her career (as she now claims) because "at no time" did she work for him. "She worked for Meredith Vieira." Vieira co-hosted the "Today" show with Lauer for five years and has referred to their relationship as "like brother and sister." This is supposed to reassure a junior employee that he has no influence over her career?
Sexual harassment is not limited to direct reports. Lauer was probably the most powerful man at NBC News, not just at the "Today" show. Co-workers told reporters that he had an eye for junior NBC News employees and a reputation for using his position to promote and punish as appropriate.
Lauer writes: "It was the first of many sexual encounters between us over the next several months ... She also went out of her way to see me several times in my dressing room at work, and on one of those occasions we had a sexual encounter."
A junior employee from a different department can't just show up at the King's dressing room. He invited her -- or summoned her, as you will. He said, "Jump," and she said, "How high?" This proves what?
"In late 2017, her attorney publicly insisted she wanted to remain anonymous," Lauer continues. "But within a year she was reportedly out trying to sell a book."
Which proves what? The young woman who was Emily Doe in the Stanford rape case is now Chanel Miller on the bestseller list.
"She says I was the one pursuing the relationship, yet once it was over, she was the one calling me asking to rekindle it," Lauer says.
Say you get dumped out of the blue by the most powerful man who had been pursuing you. He won't talk to you, won't answer your calls or emails. You can't get close to him. You're afraid they'll find a way to fire you. That's when you complain.
This is not a relationship. This is clearly harassment, even by his version. And as for rape, the question is not what happened later but what happened that night in Sochi. Saying yes to one form of intercourse does not allow you to presume consent to everything. There's no such thing as an all-access pass.
Susan Estrich can be reached at firstname.lastname@example.org.