Why Men In Power Continue To Get Away With Sexual Abuse

Update: Last week, The New York Times published a report by Jodi Kantor on the sexual harassment allegations that have plagued Harvey Weinstein for the past two decades; on Tuesday, The New Yorker published a piece by Ronan Farrow where he interviewed many of these women, who described their experiences in harrowing detail. These rumors can no longer be dismissed as hearsay, but the systematic abuse of power and coercion that emerges from these stories is no different than what we've seen happen at places like Fox News, or with people like Bill Cosby or Terry Richardson. The following story, published over two years ago, is as relevant today as ever.

Imagine going to a job interview, and when you arrive, the interviewer unexpectedly disrobes, asks you to do the same, and strongly suggests that you touch his penis.

The above scenario constitutes quid pro quo harassment, a form of sexual blackmail. Whether the conduct is a direct solicitation or a more oblique sexual proposition, it's clearly illegal.

However, when model Sena Cech allegedly experienced this very scenario at a casting with top fashion photographer Terry Richardson, she had surprisingly little recourse. Since models are generally considered to be independent contractors, not employees, they lack protection against on-the-job sexual harassment.

"I wasn’t warned that I’d be expected to pose nude or engage in any sexual activity at the casting," Cech said. "[Richardson and his assistant] told me to go ahead and take off my clothes. That happens sometimes, but normally you’re asked to change into clothes, and they were just asking me to strip. But, this guy was an important photographer, and I felt like the only way for me to work with him was to pose naked. Then, they took some photos [of me] and then he whipped off his clothes. I don’t know why I went along with it. I guess I wanted to get work and make money and pay my bills." What happened next was rather gruesome. "They asked me to grab his penis and twist it," she added. "It was totally sadistic and gross."

When it comes to freelancers’ lack of protection against sexual harassment, the logic is that the harm they suffer when confronted with an explicit or implicit demand for sex is less significant than that experienced by an employee. The employer's moral and legal obligation to full-time staff is stronger than any obligation to an independent contractor who is, at least in theory, free to take her business elsewhere.

The presumed power and independence that comes with a freelance career plainly does not exist for the vast majority of working models. Essentially, this unequal protection under the law provides clients license to harass and demean them.

In Cech’s case, her then agent arranged the casting, explaining that Richardson was an important photographer and that she should make a good impression. At the time, Cech was working in debt to her agency, which had fronted her the money to help launch her career, including airfare from her family’s farm in Oregon to New York, courier fees, test shoots to build her portfolio, and rent at the agency’s model apartment.

Cech was eager to book modeling jobs to pay off her debt and turn a profit, but not so much so that, when her agent told her that Richardson wanted to book her for the job, she was willing to accept it. She brought word of the photographer's predatory behavior back to her agency, but said they weren't supportive of her decision to walk away from the gig. “I told my booker exactly what happened [during the casting] and he was, like, proud of me, and told me that Terry loved me. He didn’t seem very surprised and he was disappointed when I told him I didn’t want to take the job.”

While Cech and other models’ allegations against Richardson have been highly publicized, the problem is not just with one creep with a mustache. Sexual harassment is rampant in the industry, and models are particularly vulnerable.

First, most models start working as minors. Even if a model is of age, she is almost always much younger and less experienced than those who hire her. Many models are foreign and not fluent in English, much less the language of contracts. The jobs often pay in trade, not cash, and, when money is changing hands, it's often going straight to the agencies to which the upstart models are in debt — like Cech was.

Second, models work under exclusive contracts to their agencies, and it’s the agencies that sponsor the models’ work visas and negotiate with the clients, not the models themselves. Richardson is widely known to have had several allegations made against him, but it’s unclear whether agencies warn their models about his reputation or give them the chance to turn down the "opportunity" to work with him.

Third, agencies stand to gain more from maintaining their relationships with folks like Richardson and his many clients, which include prestigious magazines like Harper’s Bazaar, Interview, and V, and big brands like Valentino, Mango, and Estee Lauder, than with most of the models they represent. Modeling agencies have a dual income stream whereby they take a standard 20% commission from the model and another 20% service fee from the client. Although the agencies are supposed to act in the best interest of their models, models have short-lived careers and a high turnover rate, whereas top photographers, magazines, and brands can generate business for decades.

Finally, modeling agencies claim that they are not technically agencies, but management companies. Unlike agencies, management companies escape regulation and have no legal duties to their models outside the terms of individual contracts. This is fine, if you're a supermodel and your hefty name carries with it some bargaining power. A non-super, though, has no leverage to negotiate a contract or make demands of the agency — even basic ones like asking that its staffers be financially transparent or put forth any effort to land bookings. Thus, contracts are almost always one-sided, giving the agencies a huge amount of control over models’ careers. The individuals who are most visible in this whole interaction, it turns out, are the ones with the least power.

Unfortunately for Cech and many others, this arrangement can license this untoward behavior from photographers like Richardson, clients, and even the models’ own agents. Indeed, Cech’s agency, which booked her meeting with Richardson, could not be held liable for the abuse she suffered at the casting. And, under federal law, working as an independent contractor precluded Cech from sueing Richardson for sexual harassment. Her options, then, are to put up with it or quit, neither of which involves any repercussions for Richardson or the agency that sent her to him.

“I think some agents are very shut off from what’s going on in the field,” Cech said. “But, a lot of the time I felt that the agents were putting me up to give sexual favors and they knew it. A few times, I got calls to do jobs that seemed more like being an escort.”

Charlotte Waters, another model and art student, agreed to pose nude for Richardson, whose work she admired and who she saw as an artist. (She was not represented by a modeling agency, but had responded to an open call posted to the photographer’s website.) However, when she arrived for the shoot, she claims that Richardson unexpectedly disrobed, touched her, demanded that she touch his genitals, and ejaculated into her eye.

Waters reported the incident to the police, but said that during the photo shoot she was “paralyzed and freaked out,” and so she never explicitly told Richardson to stop. "I was always very hesitant about [reporting Richardson] because I know nothing can really be done," she said in an interview with Vocativ. "So Richardson’s off the hook. It kind of sucks.”

Model and writer Jamie Peck claims that she was also coerced to perform a sex act on Richardson at a photo shoot. In an op-ed published in The Guardian, she wrote, “’Art’ has apparently been deemed a falsely separate realm in which neither basic labor laws nor ethics apply.”

Sadly, Richardson is hardly the only bad apple in the business. The same week that New York magazine ran a cover story about the photographer, American Apparel’s board announced that they had fired the company’s founder and CEO, Dov Charney, “for cause.” The allegations surrounding Charney largely focused on leaked nude photographs of a former employee who had previously sued Charney in 2011 for allegedly forcing her to perform sexual acts. In 2009, the fashion designer Anand Jon was sentenced to 59 years to life imprisonment for multiple charges including rape and assault of underage models. Last month, a London-based photographer, Shaun Colclough, was convicted of sexual assault of two models, who he booked through the website Model Mayhem.

“Having shot comfortably with some of the industry’s most notoriously controversial photographers (including Terry), it was surprising that my first encounter with sexual harassment was a recent commercial catalog shoot,” wrote model Sarah Varacalli, who claims that the client asked her questions about her romantic life and that his language became more explicit at times when they were alone on set. By the end of the shoot, she claims that the client propositioned her for sex in exchange for jewelry and cash. “I'm naturally shy so I just froze, continued shooting, and tried to be as professional as possible. I didn’t want to make a scene. I thought I’d be able to get over it, but the experience has weighed on me. I keep revisiting what happened; it's difficult to discuss the actual language used in detail or feel closure.”

Varacalli noted that when she complained to her agent, she was supportive: “She was angry and immediately said she wouldn't work with the client again.” Varacalli also emphasized that, in her five years of working as a model, most of her experiences have been positive, however, “not being able to act on my disdain and anger is frustrating.” She added, “Despite my overall positive experience, I feel confident in saying that sexual harassment in the modeling industry is very common. The stories that my model friends share are similar and far too frequent.”

Fifty years ago, when the fight against sexual harassment in the workplace began, women struggled to have their concerns taken seriously and to establish their rights. “When Title VII of the Civil Rights Act was passed in 1964, the focus was race discrimination,” said Merrick Rossein, a law professor at the City University of New York Law School. “When the bill was introduced in Congress, protection for women was not included. A southern congressman introduced the amendment to include "sex" as a strategy to defeat the bill. When the amendment was debated, there was mostly joking from male congressmen, thus in the '70s when women first raised sexual harassment as a form of sex discrimination, the courts had very little legislative history to understand the meaning of the protection, and most of the first sexual harassment cases were dismissed by the male judges since they saw sexual harassment as mere sexual proclivities.”

To many, fashion seems frivolous and so models’ reports about workplace harassment are too readily dismissed. But, whatever one may think of fashion and modeling, models’ apparent lack of protection against sexual harassment on the job is an injustice that extends far beyond the fashion industry. Today, those who are classified as independent contractors — an estimated 42 million workers, or one-third of the U.S. workforce, according to a study by the Freelancers Union — remain unprotected.

“If someone is an independent contractor, they’re not going to be protected under the law, and that’s a big gap in the law,” said Rossein. “The law should be amended and changed.” Rossein also noted that employers often misclassify their employees as independent contractors and that models’ employment status deserves further investigation.

The superficial nature of the business invites superficial criticism, but models like Cech hope that lawmakers will look beyond fashion’s façade. “It’s really awkward when someone who is your superior in the workplace asks for a sexual favor because you don’t want to lose jobs, but at the same time, you really just want to have a professional relationship and be treated respectfully,” said Cech.

Models could challenge their presumed status as independent contractors; they could push for modeling agencies to be considered agencies, not management companies, so that the agencies would have a duty to act in the models’ best interests; or models could push for legislation that would afford freelancers the same protections as employees.

Any of the above would be a heavy lift, but until models have legal protections, not only will alleged sexual predators like Richardson inevitably continue to abuse their power, they will also benefit from the legal loophole that lets them get away with it.