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November 01, 2018 Feature

An Unlikely Target, or Not?

By Judge Annette J. Scieszinski

I don’t aspire to be a victim of anything. In the course of my professional and personal life, I have been empowered personally and professionally. Frankly, most of the time I am in charge. I never have seen myself as vulnerable, and I certainly never envisioned being a sexual target of anyone. So, it comes as quite the humbling surprise to face up to the fact that I was a victim of sexual harassment.

“Sexual harassment is different than gender discrimination. It’s usually behavior that’s aggressive in certain settings, and done by people who believe that they can use sex to marginalize someone to make them feel small, uncomfortable and vulnerable,” says Wendi Lazar, appointed to the ABA Commission on Women in the Profession in 2015.1

I remember the first time a certain male litigator regaled me in court chambers with a graphic story of sexual facts. It was uncomfortable to listen to the detail, embellished by the relish with which he recounted the details. In my prior years as a practicing attorney, I prosecuted sex crimes and thus was seasoned in the legitimate use of the lexicon necessary to that mission. Now, 22 years ago, sitting as the first female district court judge in a 10-county rural district, I was determined as a judge to “man up” to the moment, and not be seen to flinch. I was not only well prepared for the judicial calling, but I was eager to demonstrate it.

The sex-laced, legal war stories continued nearly every time this male litigator caught me in chambers. The scenario was always couched as a case that the lawyer was working on or one that he had read about. Typically, it started with an entreaty, “Did I tell you about my new case?” Or, “Did you read about the case? . . .” The ritual proceeded when I was there alone, but also sometimes when other lawyers were present. I was serious about my duties as a judge and abided with a courteous listen, making sure the case was not one pending on my docket. I never asked for more, nor did I egg a story on. Early on, I pondered whether I was being set up to have a conflict on sex discrimination cases the lawyer might be shepherding through the system. I adopted a strategy to quickly change the subject to something germane to the day’s work at hand; but even then, this lawyer’s sex talk would advance for a sentence or two.

One day, several years into the routine, it occurred to me that, although the litigator worked employment discrimination cases in state and federal court, it seemed odd that he had so many fact patterns that involved the sexual deviance headlines to which I was being exposed. I was not seeing news or journal articles on these supposed cases. In the carpool home that night, I asked my experienced court reporter if she had ever worked a case—or even heard of a case—involving this litigator and sexually lurid evidence. She had not. I soon inquired of a colleague, a senior male judge on my bench, whether this well-known and active litigator talked to him about sexual fact patterns. “No, never.”

I realized then that I was a target and a prolonged victim of sexual harassment. The insight hit like a load of bricks. I knew better. I was familiar with professional proscriptions on that kind of conduct, and I had even taught on the subject! I was, at once, embarrassed, humbled, . . . and outraged. I resolved that the next time this happened, I would confront it.

In an interesting twist, the behavior never recurred with me; it had stopped upon my conversation with my fellow judge. The offending litigator continued to regularly appear in my courtroom, although he presented himself in chambers less often. Never again did he broach sexual fact patterns with me. Our interactions were all on the business at bar, with no prologue or epilogue of his sexual storytelling. In assessing the circumstances, I assumed that my colleague approached him and told him to cut it out.2

Some time later, I became aware of the litigator perpetrating similar sex talk in the attorneys’ lounge with a female intern present. Upon learning of this, I called the litigator into my chambers and warned him that the behavior that had been described to me by an onlooker could be construed as sexual harassment. (I did not enlarge the discussion by making him account for his years-long record of behaving the same way with me.) The lawyer reacted in a mantle of shock and defended himself by citing the case-fact exception to harassment motivation.3 Nonetheless, I cautioned him: Be warned.

I have not seen or heard of a situation of sex talk by this attorney since then. That does not cause me to believe that the practice has stopped; I just have not been exposed directly or indirectly to it. In a spirit of professional mentoring, I did suggest to one of the litigator’s partners that sexual harassment training within the firm would be a good idea.

My experience as a sexual harassment target has informed me with a better appreciation for the fact-specific nature of the dynamic. My journey does not predispose me to believing, or rooting for, any party in any case; it, however, does reinforce my open mind as to the variety of manifestations that harassment can take and the unpredictable impact it can exact upon a victim. I am objective about what response a target might or might not portray, and I do not have prejudgments about people who seemingly tolerate objectionable conduct for a time before recognizing it or getting fed up with it or seeking help to make it stop. And I understand how it takes courage to confront powerful people about misconduct.

I remain mindful that the Model Rules of Judicial Conduct impose upon judges a responsibility to rein in manifestations of harassment when observed in the course of the court’s work. Yet, judges are counseled to respect the role of legitimate case advocacy.4 The challenge has never been daunting for me . . . that is, except when I unwittingly became the target and the issue struck home.

In a mode of trying to understand how I could fall victim to the litigator’s improper conduct, and for so long at that, I succumb to moments of retrospective rationalization. In my unique place in history as a then-rare female jurist, I strived to exemplify judicial capability and professional strength. I also harbored a savvy understanding of the culture of judicial evaluation in our state: an anonymous plebiscite that invites certain lawyers to publicly critique judicial officers in such measures, among others, as a judge’s ability to handle the subject matter, to treat all persons with respect, and to be temperate and tolerant. Dare I say that the litigator who harassed me had a courthouse persona of being openly critical of judicial performance and of engaging other lawyers in discussions about the respective abilities of those on the bench. He widely touted his office in a high-profile lawyers’ association that proactively vets judicial candidates and those aspiring to appellate appointments. While I have been resolute in always exercising independence in judicial adjudication, apparently, I was not so vigilant in protecting myself—and by extension the interests of the larger judiciary—from being victimized by sexual harassment.

I take some solace in appreciating that our country, including me, is coming to grips with the broad wake of sexual harassment. Beyond notions of the past that a harasser must be in it for a sexual favor or a quid pro quo, conscientious people now understand that this type of harassment also takes shape as an unpermitted power grab designed to demean women—even judges; and it seeks to objectify them.

“Sexual harassment in the workplace will not be eliminated until it is first understood for what it is. It is not so much ‘an issue of right and wrong [as] an issue of power.’”5 “The fundamental problem is not the content of workplace conversation, but how sexually explicit rhetoric is used in the workplace by those in power at the expense of others.”6

While #MeToo and its aftermath present legitimate issues for the legal mind on the need for fair processing of allegations and on questions about staleness of misbehavior in an evolving workplace protocol, the movement makes positive strides in teaching us all more about the context and the content of abuse. This judge is now better educated on how insidious sexual harassment can be in a workplace of defined roles, and how even a person in a perceived position of power is not immune from the undercut that abuse exacts. 


1. Stephanie Francis Ward, Time’s Up, ABA J., June 2018, at 47, 54.

2. Recently, after the #MeToo movement surfaced and I was prompted to think about me, too, I popped the question. Had my colleague intervened? For an answer, he just smiled.

3. Model Rule of Professional Conduct 8.4(g) proscribes sexual harassment but tempers the analysis with an exception for legitimate case advocacy:

It is professional misconduct for a lawyer to:

(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

(Emphasis added.)

4. Model Rule of Judicial Conduct 2.3 addresses Bias, Prejudice and Harassment.

(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed fact factors, or similar factors, when they are relevant to an issue in a proceeding.

(Emphasis added.)

5. Catharine A. MacKinnon, Sexual Harassment of Working Women 47, 173 (1979).

6. State of Iowa v. Watkins, 914 N.W.2d 827, 858 (Iowa 2018) (Cady, C.J., dissenting) (citing MacKinnon, supra note 5, on the dynamics of sexual harassment).

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Judge Annette J. Scieszinski

Judge Annette J. Scieszinski serves as a senior district court judge in Iowa, after 20 years as a general jurisdiction trial judge (District 8-A), including four years on the three-member, statewide Iowa Business Court. She is a former chair of the National Conference of State Trial Judges and currently serves as chair of the ABA Judicial Division's Program Committee.