Free Speech

"The Most Gullible Man in Cambridge" Story Gets Even Stranger

The legally strange dimension: A claim that the magazine article author sexually harassed the subject of her article, apparently by "seek[ing] inappropriate personal and romantic intimacy with Plaintiff."

|The Volokh Conspiracy |

See Hay v. New York Media LLC, a breach of contract, libel, and sexual harassment lawsuit brought by Bruce Hay (representing himself) against New York Media LLC, author Kera Bolonik, and New York Media's lawyer David Korzenik. Here is an excerpt from the Complaint (you can read the underlying stories starting at p. 52):

[4.] Plaintiff Bruce Hay is a professor at Harvard Law School, where he teaches Civil Procedure and related subjects. In 2018, he found himself in an escalating legal conflict with two women he had loved — Maria-Pia Shuman, a cisgender white woman, and Mischa Shuman, a transgender woman of color …, who are married to each other. Plaintiff had been very close to the Shumans until 2017, when a painful rupture — facilitated by individuals who had an interest in driving them apart and stoking conflict between them — made them bitter adverSaries in court and in Title IX proceedings at Harvard.

[5.] In July 2018, Plaintiff agreed to work with New York's editor, and with
Defendant Kera Bolonik on an article for the magazine about his dispute with the Shumans. The agreement was that the article, to be reported by Bolonik, would meet the high standards of professional investigative journalism long associated with the magazine….

[7.] Defendants did not produce the responsible piece of investigative journalism they promised, and made no real attempt to do so. Instead, they seized the opportunity to produce a sensational "True Crime" story, replete with vicious transphobic and misogynistic stereotypes, portraying the Shumans as scheming, deviant femmes fatales preying on a series of men, and Plaintiff as their credulous, hapless victim….

[13.] Had Defendants actually honored the agreement with Plaintiff, and produced the responsible piece of investigative journalism they had promised him, this would all have turned out very differently. A truly professional investigative work … would have revealed that far from being the predators portrayed in the article, the Shumans are the victims of a predatory campaign to demonize them for their gender nonconformity; that the "criminal" label affixed to them is the product of a prejudice-driven effort to weaponize law enforcement; and that they and Plaintiff are complex individuals who loved each other who find themselves locked in a conflict cynically orchestrated by others….

I can't speak to the merits of the breach of contract claim (or the related bad faith claim) or of the defamation claim, since that turns heavily on the facts. But I was struck by what seemed to me a highly novel sexual harassment claim:

[165.] For purposes of New York Human Rights Law, Plaintiff was a "consultant or providing services in the workplace pursuant to a contract" with New York Media. N.Y. Exec. L. § 296-d.

[166.] For purposes of New York Human Rights Law, Bolonik's sexual harassment of Plaintiff constituted "harassment because of [his] sex." N.Y. Exec. L. § 296.

I'm pretty skeptical that a source for a story (or a subject of a story) would be covered by New York sexual harassment law. I don't think sources and subjects of magazine stories would qualify as consultants or service providers.

And in any event it's hard for me to see how Bolonik's behavior in the Complaint would qualify as sexual harassment. The most relevant passage in the Complaint seems to be,

[92.] Bolonik's pursuit of intimacy with Plaintiff frequently crossed the line into sexual harassment. She contacted Plaintiff almost daily by telephone or text message, often outside of business hours, insinuating herself into his personal life and trying to draw him into hers. She shared inappropriate details about her sexual relationship with her domestic partner, her romantic history, and her sex life, and pressed him to provide equivalent information about himself. From early on Bolonik sought romantic intimacy with the Plaintiff. Early in their acquaintance she took Plaintiff to dinner with two of her personal friends, telling him afterward that her friends had "approved" him for her, hinting at the double meaning. During their early in-person encounters Bolonik detected Plaintiff's discomfort with her intimate advances and sought to reassure him that she was exclusively lesbian. She repeatedly told Plaintiff that she "cared" about him, and expressed concern that he did not return her feelings.

Even if this would qualify as sexual harassment in a typical work environment (and I'm not sure it would, especially in the absence of an indication from Hay that this was unwelcome), Bolonik was writing a story about Hay's personal life, including his sexual relationships. She was supposed to "press[] him to provide [personal] information about himself. And to do that, she might well want to share personal details and create a sense of "intimacy" in order to get him to open up to her.

Perhaps she was being manipulative, but it's hard to see such manipulation as sexual harassment, especially in the absence of any sexual propositions, attempts at sexual touching, and the like. (The Complaint does later say, "Bolonik treated Plaintiff as a researcher, fact-checker, and legal expert as well as a source and romantic partner," but I don't see any concrete evidence of anything "romantic" there.) It will be interesting to see what the court will do with this.

UPDATE: I originally erroneously stated that the quote in paragraph 165 was from a California law; my apologies for the error, and thanks to reader David Nieporent for setting me straight.

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  1. Worth noting: in paragraph 6, Hay alleges he acted as a “legal consultant” for the defendants. From online searches, he appears to be registered with neither the BBO nor the New York bar. So if he was providing “legal consulting” services to the defendants in either NY or MA, there’s a chance he’s just admitted to the unauthorized practice of law in his own complaint.

  2. eww

  3. The quote in paragraph 165 seems to be from a California statute

    No, that, at least, he didn’t screw up, though he left out a few words. It’s “consultant or other person providing services”

    https://www.nysenate.gov/legislation/laws/EXC/296-D

    1. Whoops, fixed, thanks!

  4. Sounds like the plantiff is running back to his abusers. It’s pretty common. Victim walks away for a while claim they’re going to do something, then their abuser sweet talks them back. It why you should never say something bad about the spouse when they walk out the door. Odds are they are going right back and while they’ll forgive the spouse they won’t forgive you bad talking them.

  5. The first interesting thing here is watching the ordinary activities a reporter does in getting an in-depth story about a source’s domestic life spun through a sexual harassment lens.

    Yes, the reporter regularly contacted him. Yes, the reporter repeatedly tried to meet with him. Yes, the reporter asked him intimate details about his personal life. Yes, the reporter acted friendly and used the friendliness to gain information. It’s all true. Every allegation can be perfectly true and also perfectly ordinary when seen in the light of how reporters attempt to gain sources’ trust and get stories.

    The second thing is a suspicion that the two other members of the menage may have cozied up and made up to him in attempting to get him to deny the substance of the sfory.

    And third is here is a suspicion that here is a person with such and ego that he would rather be had a second (or is it third?) time than be made to appear a fool. Quietly losing his money seems to be a lesser problem than publicly losing face.

    1. And third is here is a suspicion that here is a person with such and ego that he would rather be had a second (or is it third?) time than be made to appear a fool. Quietly losing his money seems to be a lesser problem than publicly losing face.

      It’s actually surprisingly common for victims of cons to be victimized a second time after the con is revealed to them. They’d rather lose the money than admit (even to themselves) that they were tricked.

  6. The final thing is a suggestion that what the reporter did — acquire information for a story about his personal life and then write a story about it he disagreed with — is itself sexual harassment.

    It’s more plausible than it might appear. If students can decide a week or a month later that they didn’t really want the sex after all and that instantly makes it retroactively rape, why can’t a faculty member decide long after the fact that he didn’t actually want to meet or be questioned about his personal life, and thereby retroactively make it wholly unwanted sexually harassing intrusion into his private life.

    The first is clearly plausible, as people have won rape claims on that basis. So why ahouldn’t the second be plausible? It’s the same principle.

    If today, after seeing the consequences (reading the story), he decides he wished he hadn’t agreed to talk to the reporter, then he never agreed to it. And if all of it was unwanted, it was all harassment. Not just impeccable logic, but a very plausible argument in the current sexual harassment climate, completely in tune of contemporary concepts about what sexual harassment means.

    You wouldn’t disbelieve a victim about something as basic to their personal sense of self as their own consent, would you?

    1. I’m surprised enterprising divorce lawyers haven’t picked up on this in cases where the couple have a business. If consent is based on the complainer’s present state of mind, then an entire decades-long marriage could accurately be described as a long series of rapes.

      Alternatively, if the fact that the spouse dodn’t live up to the complainer’s expectations makes the procurement of consent fraudulent and therefore void, this concept would also work just as well for divorces as anything else.

      1. I had a student try that once — upon discovering she was a lesbian, she retroactively redefined every consensual sex act over the past 18 months as a “rape.” That was back when people like me were doing student judicial — today, he’d be lynched.

        1. I had a student try that once — upon discovering she was a lesbian, she retroactively redefined every consensual sex act over the past 18 months as a “rape.”

          No, you didn’t.

  7. Man I’d love to see Hay’s deposition. Especially if Bolonick recorded the interviews.

  8. Imagine going through the tenure process to become a legal scholar at a selective institution and this is your legacy.

    Remarkable.

  9. This suit is just his masochism at work. Dude must love humiliation to prolong this.

  10. Well then…. off to read the article. The Streisand effect is too powerful to resist.

    Thanks to Prof. Hays for the pointer.

    1. I read it. The people on the other side from Hay seem really unpleasant.

      1. I had never heard of this story before but went to read the original article. The professor was clearly a victim, but I have a hard time seeing any motive. The Shumans just appear to be . . . warped.

  11. I would highly recommend searching Medium for a piece written by “Joshua Holt”, supposedly a previous boyfriend of “Maria Pia”’s who Hay has attempted to drag into this mess.
    As a now retired medical researcher; I sometimes end up chasing rabbits down their holes, researching arcane subjects I come across, searching for a semblance of truth.
    This was one such subject, spurred by a twitter thread. Considering the names and reputations of some of the legal representatives in this…chaotic mess, the scandalous accusations involved, and the fact it also seems to be emerging as yet another example of wild political generalizations; perhaps others should read about all sides of this warped coin.
    I just found the link: https://medium.com/@Joshua389/i-have-become-that-person-dragged-into-a-mess-because-i-thought-i-was-doing-the-right-thing-and-ad498ee07779

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