Lawyer Defends Sexual Harassment Lawsuit: Testosterone Made Me Do It

A lawyer has been accused of sexual harassment.  This is not news. Unfortunately, some level of sexual harassment is likely to occur in a large workplace, especially in a high-stress profession like the law.

However, what is somewhat newsworthy is the lawyer’s defense: “testosterone made me do it.” The accused harasser isn’t defending himself on the basis that he didn’t engage in inappropriate conduct (by far the most common defense), but based on the claim that he was taking testosterone medication that caused him to act in an aggressive and inappropriate manner. As a result, the Supreme Court of Kansas has suspended his license to practice law in that state for one year.

Medical science has long ago shown that hormones can have very strong influences on a person’s mood, with testosterone increasing sex drive, as well as causing aggressiveness and irritability. If this person didn’t was taking the exact right dose of his medication, it’s entirely plausible that it could have played a major part in this behavior.

Now, if we were dealing with criminal charges, this might be relevant. After all, almost every crime has an element of intent. If it can be shown that the actor didn’t have any criminal intent, and that his conduct was purely accidental, or brought on by some outside force beyond his control (say, and unexpected reaction to a medication), then you’ve got a viable, or at least non-frivolous, defense.

However, this lawyer was not criminally charged: he was facing administrative sanctions in the form of his license suspension as well as possibly a civil sexual harassment lawsuit by the victims of his conduct.

This might be a good opportunity to explain to laypersons some of the differences between criminal and civil law. Criminal law is built around placing moral blame on wrongdoers, and punishing them accordingly. For that reason, to be successful in a criminal prosecution, the prosecutor almost always has to show that the defendant acted with some sort of criminal intent, and it’s why things like insanity and duress can sometimes operate as defenses to criminal charges.

In civil and (presumably) administrative contexts, blame and moral culpability are not nearly as important as writing wrongs in a practical way. For example, if a drunk driver hits another car, causing bodily injury and property damage to its occupants, the driver will be punished by the criminal justice system. However, this punishment will be in the form of fines and very possibly jail time, which will confer no direct benefit onto the victim, except, perhaps, some emotional closure. However, the victim, through no fault of their own, has suffered very real harm, in the form of injuries and property damage, which likely resulted in medical bills as well as costs of repair or replacement. Now, it wouldn’t be fair for the victim to have to bear all of these costs.

This is where the civil and administrative justice system comes in – requiring the wrongdoer to compensate the victims of his wrongdoing. His level of moral culpability is not nearly as relevant.

So, the fact that this lawyer may not have been entirely in his right mind when he engaged in this conduct is not terribly relevant when deciding if he should be made to pay damages to his victims, and/or lose his license to practice law.

And I believe that this is how it should be, especially in licensed and regulation professions, such as the law. When doing their jobs, learned professionals like doctors, lawyers, and accountants are held to higher legal and ethical standards of conduct than virtually anybody else. After all, they went to school for years to learn their trades, and they are placed in positions of great trust by their clients and patients. Any mistake can cause the people who hire them a great deal of harm.

Regardless of the underlying cause of such a mistake, such professionals should be held responsible. Lawyers, belonging to a profession that largely self-regulates (through state bar associations and licensure rules), need to be particularly mindful of the conduct of their peers. Lawyers perform an essential function in society. And while it can be argued that there are too many of them, the casual hostility visited upon them by the public is most definitely a bad thing – it undermines confidence in the legal system, which can, in turn, lead to people trying to take the law into their own hands. Therefore, anything that makes the legal profession look bad, such as sexual harassment, regardless of what caused it, must be dealt with swiftly and decisively.

It may seem unfair to the attorney, if his story is true, but when he signed up for his job, he knew what he was getting into. Just as getting drunk doesn’t excuse bad behavior, taking a testosterone pill shouldn’t, either.

And we should be clear that, despite the fact that we’re no longer living in the Mad Men days, we still have a lot of progress to make. Cool furniture, snazzy suits, and 11 AM martinis notwithstanding, there are many, many aspects of decades past which definitely should not be missed. Pervasive sexual harassment in the workplace is a big one.

According to LegalMatch case data from the last 12 weeks, sexual harassment still occurs at all levels of the corporate hierarchy, in all industries. If such behavior is to be stamped out, or at least significantly reduced, courts and administrative bodies must be extremely wary when it comes to entertaining the excuses of harassers. Because, frankly, there is no excuse for such behavior.