Some mostly harmless memoirs, one novel and one well-reviewed study of literary marriages later, Roiphe is back in the headlines, again for being a reliable source of controversial-sounding contrarian anti-feminist bullshit. (Seriously, if you’re a struggling woman writer with no soul, consider rape victim-blaming! It’s lucrative!)

This time, Roiphe is saying that what Herman Cain is accused of doing to multiple women is no biggie, because blah blah blah there is no such thing as sexual harassment, just men being men and feminists being too shrill and fragile to handle that.

Obviously there is a line, which if the allegations against Mr. Cain are true, he has crossed, but there are many behaviors loosely included under the creative, capacious rubric of sexual harassment that do not cross that line.

In other words, the news event that led to my writing this column pretty much directly contradicts my point about sexual harassment being the criminalization of perfectly acceptable behavior but on the other hand feminists want to make dirty jokes illegal.

Roiphe is not just a one-note anti-feminist hack, no! She also writes very badly about the Internet and people on the Internet who are mean to Katie Roiphe. At the beginning of this month, Roiphe broke the news that there are Internet commenters who are mean. They accuse Katie Roiphe of being rich, just because she went to Princeton and Harvard and wrote about her nice house in rich people magazine New York and was photographed for that article holding a very expensive-looking handbag. Roiphe basically adopts the “haters gonna hate” line beloved by people serene in their refusal to acknowledge what they’ve done to inspire the hatred. This is a line most utilized by teenagers, because it requires a slightly sociopathic narcissism to imagine that literally everyone who criticizes you is jealous of your wonderfulness.

When people who troll for a living act surprised to discover that their intentionally obnoxious work had the desired effect of annoying a great deal of people, you can generally write that off as more trolling.

Continuing her tour through the most popular hacky Internet trend essay tropes of 2007, Roiphe wrote a piece on how Gawker is stupid, because Gawker made fun of her. The Gawker post that inspired her piece was three years old. Seriously. It was a three-year-old post with three paragraphs and a block quote. Because poor Emily Gould asked Roiphe for a book blurb Roiphe wrote, in October of 2011, a lengthy Slate column in response to three paragraphs Gould wrote making fun of her in May of 2007. “I did not find the piece very wounding,” Roiphe writes, in case you’re worried that she is letting the haters get to her. She totally isn’t! She just devoted a column to how much she didn’t care about the mean thing someone said about her, three years ago, to show how much she is over it.

Though I imagine that with the sheer volume of critical things people have written about Roiphe, because she’s awful, it might simply have taken her three years to work through the backlog. I imagine she’ll respond to this (“Isn’t it interesting that Salon hates me so much, not that I care” by Katie Roiphe) in 2014.

HACKIEST 2011 MOMENT:
A truly wretched and self-parodic Slate column about how the popularity of the book “Go the Fuck to Sleep” — the joke is that it’s like “Goodnight, Moon” with swear words, and that is the full extent of the joke — “means” that dumb yuppie liberal parents are full of bleak existential rage because they aren’t as good at sex-having as Katie Roiphe, because feminist yuppie women have castrated their good yuppie liberal husbands, and Katie Roiphe is operating on a plane you yuppie liberal sex-hating feminists can’t even understand, maaaannn.
- – - – - – - – - -
(Read the introduction here. Read the 2010 Salon Hack 30 List here.)

Speaking to Greta Van Susteren, the kindly Mrs. Cain said she didn’t recognize the man described by his accusers, that her husband “totally respects women.” That is to say, “If you understand what old school is, of that generation where men still wanted to open the doors for women, and if we’re walking along the street, he wants me to walk on the outside, next to the curb. It’s not just me, it’s any woman he’s walking with because old-school people think they’re supposed to be women’s protectors.”

Except for her insistence that she was not ”the little woman at home,” she was describing a man and a marriage that would, in terms of presidential family politics, roll back the clock, past the contradictory you-go-girl model of Sarah Palin and her first dude, past Michelle Obama ribbing her husband and being accused of emasculating him, past everything Hillary Clinton, at various intervals, has stood for. It made George W. and Laura Bush look like egalitarian Scandinavians. Which brings us back to the pizza, an assertion of anxious masculinity that looked to draw sharp lines between men and “sissies” even when it was entirely off-topic.

If that’s the marriage the Cains want for themselves, fine. But being “old school” and a “protector” is not the antithesis of the predatory behavior of which Herman Cain is accused. It’s the natural extension of it. Respecting women as full human beings is not the same as protecting them, particularly if you internalize the dichotomy of the type of woman you stay married to for 43 years and the type of woman whose head you shove toward your crotch.

Watching last night, I believed that Gloria Cain believed her husband and thought that the women were lying. She seemed winningly honest throughout, like your favorite prim but no-nonsense middle-school teacher. Describing their courtship, she openly said she was distinctly unimpressed by Cain’s constant chatter and his ego and his looks. “Did you think he was cute?” Van Susteren asked. “He was OK,” she said dubiously. He pursued her vigorously for a year, and she eventually relented. Had it been exciting to be married to Herman Cain, or exhausting? Gloria Cain said, three times, that it had been exhausting.

But she sounded the most skeptical when asked if her husband would make a good president.

At the end of the segment, an exceedingly awkward family reunion gathered around Van Susteren, who valiantly but unsuccessfully tried her best impression of folksy. Van Susteren ribbed the Cains’ daughter because her parents had revealed her to be — gasp — 40 years old.  Herman Cain remembered how on their first date, he was broke and therefore relieved that Gloria said she wasn’t hungry at dinner afterward. But, Gloria said, remembering how he sped away from the burger joint, she was actually starving. She just didn’t want to seem greedy — or perhaps, though she didn’t say it, unladylike. It was a reminder that even being the kind of woman whom men protect has its ordinary yet exhausting limits.

“The Morning After” – the book that first rape-hysteria piece became – has given way to “Groundhog Day.”

Roiphe, of course, sometimes writes about other things. This year alone, she has written at least two 1,000-word columns about people mocking her. Just as it takes 20 years of repetition to polemicize away sexual violence, it takes at least two tries for Katie to indignantly convince us that her critics haven’t hurt her feelings.

But some things never change, including Roiphe’s blithe refusal, when it comes to making these claims, to look anywhere but her own navel and cocktail party circuit for evidence. (Sure, she has been on her share of campuses. But there’s no indication Roiphe has been in any other type of workplace.) Sunday’s piece is pegged to the accusations against Herman Cain. Even Roiphe sounds bored when she says, “After all these years, we are again debating the definition of unwanted sexual advances and parsing the question of whether a dirty joke in the office is a crime.”

We are? Last I checked, one of the two women with settlements from the National Restaurant Association hasn’t gone public with her story. Karen Kraushaar, who has, can’t legally divulge details, but has alleged that what Cain did was more serious than joke about his wife’s height, as he says he did. Roiphe complains that “sexual harassment includes both demanding sex in exchange for a job or a comment about someone’s dress.”

Let’s recap. Sharon Bialek says Cain groped her and shoved her head towards his crotch with the words, “You want a job, don’t you?” In other words, Herman Cain allegedly demanded sex in exchange for a job. No word on what he said about Bialek’s dress.

Roiphe also suggests workplace creativity might blossom if we removed legal safeguards that protect employees from bosses who exploit their power differentials. Maybe we can blame sexual harassment law for the fact that Cain allegedly used such a cliche.

It’s not clear what Roiphe’s excuse is, though. Back in 1993, in a devastating New Yorker review of Roiphe’s “Morning After,” Katha Pollitt wrote that the “message is one many people want to hear: sexual violence is anomalous, not endemic to American society, and appearances to the contrary can be explained away as a kind of mass hysteria, fomented by man-hating fanatics.” That message is clearly still resonant to the assigning editors of our nation’s large publications, since they keep paying her to repeat it — despite the rhetorical retreads, despite Roiphe’s reporting skills on the topic not having shown improvement since Pollitt first scolded her for not doing her homework. Meanwhile, even her colleague at Slate, where Roiphe has a column, finds her discussion of the issues wrongheaded, reductive and boring. “Is it really still contrarian to worry about the ‘capaciousness’ of the concept of sexual harassment, or the inherently amorphous nature of its definition? These are old arguments, made by defensive men and by women who prefer to sound, and maybe even are, confident that no environment is hostile to them,” asks KJ Dell’Antonia today.

Clearly, someone out there still finds this daring and brave. Luckily, what has changed in the last 20 years is that now we have blogs to tell Roiphe just how and why she is so wrong. In the same vein, there’s already a response to her demand that one show her “a smart, competent young professional woman who is utterly derailed by a verbal unwanted sexual advance or an inappropriate comment about her appearance, and I will show you a rare spotted owl”: The Spotted Owls Tumblr, formed Sunday night in response to Roiphe, will collect firsthand stories of harassment. 

Are confidentiality agreements a good thing? They certainly encourage settlement. Most civil litigation, over 95 percent by most reliable estimates, concludes in a settlement. The risks, stress and costs of litigation encourage settling cases. The courts also encourage settlements as measures for judicial economy. And most settlements – in and out of courts – end with confidentiality clauses, which the parties sign, agreeing to keep the charges and settlements confidential. The motive for the defendant is to pay a price to keep a contested charge private, whether or not it is true. Cynics call that practice extortion; realists call it the price of doing business.

But should it be? And when such a deal is done, should the confidentiality ever be breached?

The facts of Cain’s situation are not yet entirely clear. From what has been credibly reported is that the Restaurant Association paid several employees who claimed Cain sexually harassed them. One of these cases reportedly involved litigation; all were settled privately. The complaining women employees agreed to keep their complaints confidential.

But after Politico reported the existence of the agreements, an attorney for one of the employees reported the anonymous charges of his client, embarrassing Cain and possibly derailing his campaign. The public does not know whether the Cain cases were examples of nasty incidents that were covered up, or were exaggerated claims kept quiet because they weren’t worth the battle, or something in between.

The leak of that information was, in my view, unethical. Individuals have a fundamental right of contract, and the women who made these deals took the money, promising to be quiet, then hurt the person whose silence the association thought it had bought. One can’t have it both ways. Either make the claim public, or take the money to be quiet. You can’t have both. A deal is a deal.

The fourth woman, Sharon Bialek, who just came forward, did not sign any confidentiality agreement, and she had every right to make her complaint public –- tardy as it was. Her claim has credence on its merits partly because it follows the revelations of the others, which compounds the question about the broken agreements of the others.

If Herman Cain were not a public figure running for the Republican Party’s presidential nomination, he would have every right to sue any woman who violated the confidentiality agreement whether through surrogates, or themselves. The law holds that contracted conditions of confidentiality are enforceable, and violations should be compensated. Breach of confidentiality in settlement agreements is generally viewed as a breach of contract and remedied in state court. Depending on the state, the usual remedies are damages, injunction, and specific performance. Courts rarely enforce monetary damages as they are harder to prove, but many settlements have liquidated damage clauses, which courts will enforce if they were entered into freely and voluntarily.

As a practical matter, Cain cannot sue them, however wronged he may be.

The larger question

The Catholic Church cases raise the same issue: that is, should courts allow confidentiality agreements when there is a public interest in knowing the information muzzled by these agreements.

In the case of the church, I would say, no, the courts should not permit confidential settlements that shield misconduct that could be repeated. For example, where a faulty car or toxic drug or dangerous structure is concerned, and might hurt others similarly situated, confidential agreements should not be sanctioned by courts. That was the situation with the cases that eventually bankrupted Catholic dioceses in the U.S. and abroad because it was shown that the church as an institution knew about the predatory priests, kept their misconduct quiet, and permitted them to repeat their misconduct.

Some may argue that the Cain situation is comparable to the Catholic Church cases, that sexual harassment, like faulty cars and toxic drugs, is a matter of public policy, that a systemic wrong is under consideration and the defendant should be outed to prevent future misconduct. Opening up the confidentiality agreement, in this line of reasoning, would prevent other similar offenses.

Following that logic, however, any defendant could be deemed a potential repeat offender in every disputed claim, and thus no confidentiality agreements should be permitted. That could be construed as violating people’s right of contract. Most courts would be against it, because it would force most disputes to go to trials.

If the question came before a court now, as a matter of pure law, not politics, I would expect that the Cain confidentiality agreements would be upheld. Only one incident gave rise to a legal complaint in a court case, as I understand, and the complaint was individualized, not systemic on its face.

The others complaints were addressed administratively within the Restaurant Association, as private, contractual matters. Challenging the right to open the confidential agreements years later would not be bullying the women into silence, it would be holding them to contracts they and their lawyers agreed to and were paid for.

Cain isn’t the issue 

There is an important point to be made, one that goes beyond Cain and the Catholic Church. Cain’s complaint that the press manufactured the scandal is naive; revealing stories is what the press does. His complaint that the charges are politically motivated also is naive. The timing suggests that there is a political motive, by the complainants and by his competitors in the primaries, but that is what political campaigns are about.

The point I make here is that private agreements should be honored by the parties. Just about every doctor, lawyer and businessman has settled a charge that he genuinely denied because it was not worth the time and public insult to publicly defend against the claim. Pay the money, bury the charge and move on, holding your nose, is a very common practice. Michael Jackson fans thought he was betrayed when a civil settlement was leaked during a later trial, because he claimed he only agreed to the payoff to avoid negative publicity. Secrecy lubricates dispute resolution.

Whether Cain was guilty of the claims against him or innocent, any of the women who made their claims and took the money, agreeing not to make the claims public, should not have broken their commitment years later. As a matter of policy, that is not proper conduct, whatever one thinks about Herman Cain.

When to keep secrets and when to require openness is a fundamental question our society is continuously balancing. On my scale, institutional issues like those raised by  the Catholic Church cases should be open, and private matters like the Restaurant Association’s should remain private.

Bialek and her legal team wanted no confusion about that fact that she was in a serious relationship and not looking for a date with Cain, a married man who has denied the allegations against him.  But does a woman need a husband or boyfriend to be taken seriously when bringing allegations of sexual misconduct?  Would Bialak’s account of meeting Cain draw more doubt or scrutiny had she not had a knight in shining armor waiting for her at home?

The marital status of a woman bringing allegations of sexual misconduct has been raised before, even if it’s not legally condoned.  When seeking to complain, whether to a manager, human resources, authorities or even friends, victims have been told that their actions must have been “misinterpreted.” The implication is that single girls should just face the fact that they are fair game.

Alexis Moore, a California-based consultant and privacy expert, said she was sexually harassed at the age of 17 during her first job as a bagger at a grocery store. Her manager followed her through aisles, trying to rub against her, smell her hair or dole out lecherous comments.  When she had finally had enough, Moore said, “I did report it but the store manager took me into the office and said, ‘Oh you’re a pretty girl. And single. These things happen.’”

Moore’s response: “You know, I am an attractive lady but there’s no excuse for unwanted advances from a pervert.”

Christopher Olmsted, a discrimination attorney in San Diego, said no lawyer would ever invoke a woman’s marital status in defending a client against sexual harassment. But he concedes that when you “talk about what people’s subconscious predispositions and stereotypes might be, you might say that the general public might have a perception that a young, attractive single woman might be more inclined to be open to romantic overtures than an older woman, married or in a committed relationship.  But there’s all sorts out there and there’s married people who are philandering and there’s single people who are not interested in any sort of relationship with colleagues.”

So in the court of public opinion, celebrity attorney Gloria Allred was determined to have her client’s motives clear for doing something as outlandish as have dinner with a man she hardly knew.

“I think that’s what angered me as a sexual harassment victim,” said Moore, who now also works as an advocate for women who have been harassed.  “It’s so offensive. It doesn’t matter if I have 12 boyfriends or if I’m single on Match.com. Or if I’m a lesbian, for that matter. It really angered me that she had to keep repeating that [she had a boyfriend] in order to defend herself to ‘establish credibility’ or perhaps to be perceived as a real victim.”

Joshua Parkhurst, an employment attorney in New York City, points out that Bialek is not bringing a lawsuit against Cain but is seeking to fight any effort to delegitimize her character or motive.  “She’s not an active litigant in a case. She’s making an appeal to public opinion,” he said.

Parkhurst said that women seeking to expose their alleged harasser will often find themselves in a system that is unwilling to investigate or inclined to believe a “misunderstanding” had occurred. “I’ve found that in some cases where the harassment has been reported to HR, rather than attempting to perform a bona fide investigation, HR will look for alternative explanations. I don’t want to paint with too broad a brush, but often it will come  back [to an accuser] that ‘maybe you were just flirting.’ Or ‘he was just joking.’”

Abigail Saguy, a UCLA professor and author of “What Is Sexual Harassment?,” described Bialek’s statement as an attempt to combat skeptics who are “only too eager to disbelieve a woman’s real motive.”

“She is responding to a reality. Establishing that she had other relationships is one strategy for showing that the advancements were unwelcome, which is not a legal criteria in sexual harassment law but it is something that would be important to convince either a jury or people more publicly,” Saguy said.

Women who come forward with allegations of sexual harassment often see their character and personal life scrutinized in an effort to establish their motive or believability.  But in 2011, a woman’s marital status doesn’t seem like a precise instrument for assessing her overall credibility.