He sidled slowly up to her and, betraying no questionable intentions, honorable or otherwise, suddenly turned toward her and like a flash of lightning, firmly planted a kiss upon her cheek as if he was well aware of what he was doing.His headlong retreat afforded him an opportunity to review his actions. Yes, he knew full well what he had done. He should have known better, for he was a little over five years old and she was six.

The act was witnessed by a teacher who did absolutely nothing because she was frozen in place by the realization of the audacity of the act. After a minute or two, she sprang into action, took a firm purchase on his shirt and marched --- nay, dragged --- him to the Principal's office. There she recounted the events of the last few minutes to the astounded official and upon concluding her narrative, transferred custody of the miscreant to him and returned to her classroom to try to minimize the gravity of the crisis.

The Principal immediately notified the boy's parents and, out of an abundance of caution, soon thereafter notified the police authorities. He followed this action by notifying the Superintendent of Schools and then, believing that he had covered his --- ah --- hrumph- -- ah --- ahem --- "butt," he began to write a statement of facts. Shortly, the parents arrived and the first of many narrations describing the events of the morning were recited. Only when the police (a captain, a lieutenant, two sergeants, five uniformed patrolmen and three detectives), assorted teachers, medical personnel, concerned parents of other students, the school counsellor, the Superintendent of Schools and the school social worker arrived did the questioning of the prisoner commence.

The Captain: Do you know that you have committed an act of sexual harassment?

Mother: Johnny, do you know what sexual harassment is?

Johnny: No, m'am.

Mother: What does "sexual" mean?

Johnny: I dunno.

Mother: Have you ever been told about harassment?

Johnny: Her ass meant? Sure, I know all about that. She has a cute---

All: Johnny!---Stop him! ---Vulgar sex maniac!---How horrible!---Do something!---Who would ever have thought---? He should be removed from society!---I feel faint!---I'm glad he's not my son!

Father: He deserves severe punishment for all that he has done.

Mother: Johnny, when you kiss a girl who does not want to be kissed (trying hard to retain her composure), that's sexual harassment. You are too young to be doing those things.

Father: I'll think of some punishment that he won't forget quickly.

Johnny: But you make me kiss Aunt Nelly and I've been doing it for years.

Mother: That's different. Aunt Nelly is a very old lady and she is very rich.

Father: It will need to be something commensurate with the gravity of his offense.

Johnny: And you make me kiss the baby and she is younger than I am.

Mother: That's different, too, and don't ask me why.

Father: I'll make it something which will deter others.

Johnny: When I wanted to go into the ladies' room with you, you said I couldn't because I was too old.

Father: You'll get no ice cream for a week!

Johnny: What kind of ice cream won't I get?

Father: And for being a---er---ah---ah---oh---.

Johnny: A smartass?

All: Horrible creature! Animal! I don't want him around the other children! Who taught him that? What does it all mean? What shall we do to---er---with him?

Johnny: Well, I know that they can't indict me because I'm just a kid, a 5-year old juvenile who doesn't understand the nature of the alleged offense nor comprehend the possible consequences.

Mother: Oh, shut up, Johnny, before I kick your---your---ah---er---before---

Johnny: These cops haven't read me my Miranda Rights. I am entitled to legal counsel and, furthermore, I demand that these cops either charge me with something or I'm out of here.

Guard: Watch him! He's going to make a break for it!

Superintendent: He may be armed and dangerous.

Social Worker: But he's only a child. He didn't hurt anybody and---.

All: Shut her up! No wonder kids get in trouble! Just like a Social Worker! The revolving door! He'd break parole the minute he hit the streets.

The culprit was quickly clamped in chains and carried by an entourage of police vehicles to the State Prison to await trial. The newspapers carried the story on the front page, which is probably what induced anonymous members of the community to cause a little over 30 gallons of various flavored ice cream to be delivered to the prisoner's cell. And the victim? She still doesn't understand what was so bad about being kissed by a boy. In fact, she rather enjoyed it, but she dared not admit that, considering the mood that the authorities were in. This matter was, eventually, resolved by the intervention of more reasonable minds who thought that the community would be best served by working toward shortening memories and deflecting ridicule by accepting the criticism with humor and equanimity.

She seldom was sick and was one of those people who were never bothered by earaches, toothaches, headaches, nausea and the like, but on this particular day, she had such a throbbing headache that she was thinking of asking to be permitted to go home. She wasn't accustomed to feeling so miserable and she had no medication with her. She was at a loss to know what to do. As is the generally accepted practice among teenage girls, she took the problem to the one person whom she knew would have the answers and would provide guidance and comfort: her girlfriend.

At recess, she told her girlfriend of her problem. As anticipated, the girlfriend offered what appeared to be an acceptable and sensible solution. She reached into her purse and extracted a couple of Tylenol and handed them to her ailing companion. They walked to the water fountain and she took the two tablets. Unfortunately, this entire episode was observed by a teacher who, in full compliance with the law, took the two confused girls into custody and escorted them to the Principal's office. There the teacher recited the events he had witnessed and awaited the Principal's judgment, which was swiftly forthcoming.

"The law is clear," he began. "I will not tolerate drug trafficking in my school. I am sending for your parents because we will need their cooperation in stopping the drug traffic at the county's best high school," and with what seemed to the girls to be with unseemly haste, he called their parents. With no finesse and not a trace of empathy, he told the parents that their children had been caught with drugs and that he had no alternative to suspending the two culprits. Within an hour, both pair of parents arrived, breathless, upset, confused and with many questions. The recounting took but a few minutes and when the Principal had rested, the parents glared at their children and waited in anticipation of a denial or, at the very least, an exculpatory explanation. None was forthcoming. Faced with disbelieving and angry parents, the Principal took the only course open to him: he suspended the girls for one week and seized the drugs. He thereupon notified the Superintendent of Schools who lent his full support to the Principal and commended the Principal and the teacher for their expeditious and resolute response to a dangerous situation.

When the story became public, the media and responsible community leaders who recognized the absurdity of the situation raised a cry. They were effective in their demands for temperance in the administration of rules which were not intended to be applied so inflexibly.

It now reaches the ear that another felon was recently apprehended and this one, like his predecessors, is a boy 5 or 6 years old, who was captured armed with a "beeper!" Yes, a beeper! One would suppose that there was some rational reason which supports the strict enforcement of such a rule in the elementary schools, although the school authorities have the grace to be embarrassed enough to avoid offering a defense. Is the use of beepers in the elementary schools so prevalent as to warrant punishment for infractions arising out of circumstances such as these? Why, you may ask, did this child have a beeper? The answer is that his parents permitted him to take it to school to show to his classmates. True it is (so we are informed) that there was no "show and tell" program planned and perhaps the parents were ill-advised in granting their consent, but it is still difficult to discern the reasoning of the school officials. We will leave the episode there, at least until another overzealous school administrator resurrects the problem by misapplying an otherwise perfectly reasonable regulation.

It seems, according to the Washington Post issue of November 22, 1996, that, in a Binghamton, New York, elementary school, a sixth grade girl claimed that the School District created a hostile environment by allowing classmates to call her and other girls by obscene names, snap their bra straps and stuff paper down the front of their shirts. Most people would have no difficulty in characterizing that type of behavior as sexual harassment, but the School District held that it was unreasonable to look at adolescent name-calling with adult expectations. Perhaps, but it seems obvious that some significance must be attached to the failure of the School District to address the real offense here. Could it be that the School District really perceived no objectionable conduct beyond name-calling (and obscene name-calling at that!)? With understandable confidence that the School District's ruling could be overturned in court, the girl's parents filed a lawsuit. A Federal jury (!) deliberated nearly six hours before delivering its verdict upholding the School District's position. It appears that there is a significant difference of opinion with respect to what behavior constitutes sexual harassment .

Finally, The Washington Post, in its October 21, 1996 Washington Business insert, printed a column dealing with the propriety of attorneys having sexual encounters with their clients. Apparently, the Bar has experienced a great deal of difficulty in deciding whether it is ethical. The question offers a challenge which simply cannot be evaded. According to the Post, this question has occupied the Maryland Bar for the better part of two years. But take heart: a conclusion of sorts may be at hand. Although this particular article deals primarily with the Maryland Bar, about another dozen other jurisdictions, e.g. Oregon (the home of the former Senator from Oregon, Bob Packwood), Virginia, New York and California, are similarly wrestling with the problem. To appreciate fully the magnitude of the issue, the reader should read the article under the assumption that "lawyer" means "female lawyer" and "client" means "male client." With that background, let us proceed to an examination of this thorny subject.

In Maryland, the issue has found its way through every committee, rules committee and subcommittee of the Bar with the result that it was decided (a decision! A giant leap forward!) that a "commentary" (read "advisory") would be issued letting lawyers know that sexual relations with a client may create an "impermissible" conflict of interests and that "coerced sex may constitute misconduct." Whoa! Stop! Cut! Cut! Run that past me again, v e r y slowly. "...coerced sex may constitute misconduct." Well, yes. I can live with that, but one would think that a bit sturdier standard would be taught in law school and applied by the Bench. Are you mentally switching "female lawyer" and "male client?" Also, one must wonder, if coerced sex may constitute misconduct, under what circumstances would it not? And this is the result of two years' intensive study? Well, now, I suppose that it is, in some sense, an advance.

Even without an articulated standard, the Maryland Court of Appeals held, in a disciplinary proceeding in 1992, that indefinite suspension from practice by a lawyer was clearly warranted where it was shown that the lawyer kissed a client, spanked another and spanked his secretary. Let us look at the alleged offenses starting from the last incident and working forward to the first. Is spanking your secretary necessarily an unreasonable response to secretarial misconduct or inefficiency? If he (remember that we are switching male client and female lawyer) deserves disciplinary action, a judicious spanking applied to an appropriate part of the anatomy would seem to be perfectly acceptable. Furthermore, a legitimate question might be raised as to whether spanking is a sexual act because, if it isn't, then it has no place in this document.

Spanking a client, however, is quite another matter. Now we are talking about jeopardizing a fee and that suggests the need for a more restrained approach. Although the security of a fee is not always an overriding consideration in deciding to discipline a client, it is difficult to find a circumstance where it would not be. A fee is a fee and I know of nothing to replace it when the lawyer desires to maintain or improve his/her current life style. So, the answer to the question about spanking your secretary is: do so, by all means, when warranted. The question of whether a spanking would be appropriate for a client is: never!---unless the fee has already been paid in full. Finally, with respect to the propriety of kissing a client, the answer is wholly dependent upon (1) whether the kiss was the result of the receipt of the full fee; (2) whether the kissor and the kissee are of the same sex or different sexes; (3) whether the lawyer and client are husband and wife; and (4) who squealed.

Incidentally, according to the Post article, no distinction would be specifically made in the "commentary" concerning cohabitation between attorney and client if the attorney and client are married to each other. Under these circumstances, given the choice, most of us would have no difficulty in making the decision as to whether to surrender the attorney-client relationship or to forego the prerogatives of marriage. Finally, one is impelled to wonder if the problem of sexual encounters between attorney and client is really so pervasive as to justify the effort and concern of Bench and Bar which, after at least two years, have reached no satisfactory conclusion. Apparently, it is. And what about physician and patient or, as appears to be more frequently the case, dentist and patient? But let us return to the attorney-client relationship.

It appears to be a real problem. For example, the Post reports that, some years ago, in Oregon (there must be something in the air in Oregon which arouses members of the Bar) an attorney was suspended for having sex with a client in a limousine and then bragging about it in a bar. Is there something wrong about bragging that you were in a limousine (for whatever purpose)? Whether bragging rights accrue in these circumstances depends on many factors, but it seems OK to me to brag about being in a limo, particularly a stretch limo. A question also arises as to whether there was complicity on the driver's part during this encounter. Shouldn't he be held accountable as an accomplice, for he was surely aware, or reasonably should have been aware, of the activity which was being carried on in his vehicle? Perhaps the driver was not a member of the Bar and the rules would not, therefore, be applicable to him. In a divorce case in South Carolina, a lawyer (presumably a male) had an affair with his female client after which her husband, not she, was granted a divorce because of her adultery.

In conclusion, no evaluation of the situation would be complete without recalling to mind "the granddaddy" of all harassers, Mr. Justice Thomas. His activities in this respect were elevated to almost a professional plane. He steadfastly maintained that his conduct toward Professor Anita Hill did not constitute sexual harassment. In any event, even if he did, the harassers in this country are entitled to representation on the Supreme Court as much as anyone else.

There is a problem here, folks!

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