In the last year, a great deal of public discussion focused on why women are apparently dressing and behaving more provocatively. (1) However, issues surrounding women's dress are nothing new. Feminists have been debating what constitutes appropriate female attire since the beginning of the feminist movement in the United States. (2) Since the early 1990s, when Naomi Wolf's book The Beauty Myth (3) was released, feminists, law professors, and popular culture critics have tried to understand women's dress in the present day. No one theory explains the current happenings with women's dress--instead, the discussion leads to tension within feminist theory: Are women exercising freedom to dress as they please or are they simply buying into their own objectification? Interestingly enough, tension also arises in the social science research: How can one account for studies suggesting that people believe women's dress is a factor in offenses (such as sexual assault), while other studies suggest that dress is not a factor in determining who is victimized? In succeeding parts of this article, I will examine women's dress in a particular context--that of sexual harassment. I will examine the case law to see if and how the dress of sexual harassment targets (4) plays a part in sexual harassment cases. I also will look at the social sciences and the feminist theories that frame sexual harassment as another form of sex discrimination. All of this is part of a greater effort to understand how women's dress might or might not impact the treatment of sexual harassment cases.
In doing so, I will draw on scholarship--both legal and social scientific--from a related area of criminal law: rape. Scholars have long recognized how a target's dress can influence outcomes in rape cases. (5) Jurors often blame the victims, believing that their provocative dress somehow plays a part in the perpetrator's decision to rape. In spite of years of criticism of these beliefs, the bias this injects into rape trials, and even with the enactment of rape shield laws, (6) this evidence still sneaks into rape cases. (7) With this in mind, one would expect a similar phenomenon to occur in sexual harassment cases. For instance, judges and jurors might believe that the target somehow invited the harassment by dressing provocatively. In sexual harassment cases, the argument that target dress is relevant is more compelling, although equally misguided, than in rape cases. Sexual harassment law requires a plaintiff to show that the harassment was "unwelcome." (8) As the Supreme Court stated in Meritor Savings Bank v. Vinson, no per se rule exists barring the admissibility of evidence of a victim's provocative dress and publicly expressed sexual fantasies. (9) Meritor opened the door to the admission of such evidence in the sexual harassment context.
However, the door was closed on this evidence--or, at least, nudged partly shut--by the extension of the federal rape shield law to civil cases. Against the recommendations of Chief Justice Rehnquist, (10) Fed. R. Evid. 412 became applicable to civil cases in 1994. Given the rule's lack of a bright-line standard for admissibility and the Court's earlier position that in some cases such evidence would be admissible, one would expect to find considerable case law canvassing the admissibility of such evidence in sexual harassment cases. Interestingly, few--if any--cases since Rule 412's extension to civil cases address this issue. One is left wondering why civil defendants are not using this line of argument, which criminal defendants have successfully exploited. (11)
This article reflects the process by which I approached the subject of provocative dress and sexual harassment law. It begins by considering why a sexual harassment target's dress might be a subject of dispute in a sexual harassment case. This includes a discussion of its relevance to sexual harassment cases as well as the ambiguities in the rape shield law that should lead to litigation on the issue. …