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Anthony Weiner: Morally Repugnant, But No Criminal

Over the past week, the American polity has been exposed to much more of Representative Anthony Weiner than it would prefer to see. But while the Congressman’s inappropriate interactions with women on Twitter have been endlessly scrutinized, at least one major question has yet to be sufficiently answered: Is he a criminal? Salon’s Mary Elizabeth Williams and Commentary’s Alana Goodman have written about how Weiner’s actions could constitute a violation of sexual harassment law. If that were the case, he could presumably soon find himself in legal trouble. But as it turns out, legal experts say there’s not much merit to this claim, if only because most of our laws governing harassment have yet to catch up with the Internet.

Sexual harassment laws focus almost exclusively on employment- or education-specific environments, say the legal experts with whom I spoke. And since Weiner had no professional or academic ties to the women with whom he was interacting, the laws he may have broken in, say, a workplace context, are unlikely to apply to his situation. But even if they did apply, it is still unclear whether his actions would constitute sexual harassment, says the University of Virginia Law School’s Anne Coughlin. In an email to me, she suggested that to satisfy Title VII requirements, the women may have had to present stronger objections to Weiner’s communications. “I don’t know if their subjective reactions satisfy the unwelcomeness criterion,” she wrote. “And we don’t know if the contacts by Weiner satisfy the severe and pervasive requirement.”

In any case, the fact remains that laws governing unsolicited Internet conduct such as Weiner’s have yet to be passed and, as a result, any sort of litigation against him would likely be unsuccessful. Stanford Law School’s Deborah Rhode explained to me that while cases like Weiner’s are not particularly common, they have been beginning to raise questions for legislators about how to deal with web-specific instances of potential harassment. “Laws governing sexually explicit Internet postings are really unsettled and evolving,” she says. “There’s not much precedent.” Thus, she adds, any legal claims against the Congressman would likely be an attempt to “hit into some conceptual cubby hole that was designed for something else.”

It seems, in other words, that Weiner—who in 2004 introduced a bill designed to combat campus sexual harassment that ended up stalling in committee—may be in the clear. Indeed, at least until Internet conduct-specific laws are passed, the biggest challenge he will likely face would be House ethics hearings. Bridget Crawford, a law professor at Pace University who contributes to The Faculty Lounge and Feminist Law Professors blogs, agreed, and wrote a blog post saying as much after we spoke. “Sexual harassers may or may not be stupid, and stupid people may or may not be sexual harassers,” she told me. “The stupid and the sexual harassment Venn diagram? Parts of it overlap.” But in the case of Anthony Weiner, “This falls in the stupid category.”

Gabriel Debenedetti is an intern at The New Republic.

Follow @tnr on Twitter.