In Terry v. Ohio, 392 U.S. 1 (1968), which gave legal validation to police “frisks,” the U.S. Supreme Court presented a standard for the reasonable police officer:
"[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken." [392 U.S. 1, 30, 31]
The Court said:
"[I]in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." [392 U.S. 1 at 21]
"[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” [392 U.S. 1 at 27]
But Officer McFadden, whose frisk of Terry occasioned the case, did not articulate the intuitive inference that led him to act in the dramatic moment at which he “grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others,” and searched him for weapons.
The Court nevertheless signaled to future courts that an experienced police officer is to be given deference in deciding whether a stop is justified, even if that officer cannot articulate how the facts in the record gave rise to his inferences. Terry, by example, implies that the courts themselves can supply the inferences.
The reasonable police officer must “be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” a frisk. But the officer need not be able to actually articulate those inferences, even after the fact, and the officer need not prove or even assert that he or she made conscious rational inferences before acting. The officer need only “point to” facts, from which the courts can draw the inferences.
Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991):
"In order to shield employers from having to accommodate the idiosyncratic concerns of the rare hypersensitive employee, we hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment....
"We note that the reasonable woman victim standard we adopt today classifies conduct as unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile working environment." [My emphasis]
The court here is laudably aiming to construct a workable standard, based on the perspective of a reasonable woman, in order to help in distinguishing the “rare hypersensitive employee.”
But the court’s adoption of the “reasonable woman victim standard,” in assessing whether someone has been victimized, makes the assumption that the case is proved before one begins the assessment. It assumes that the complainant is a “victim,” and seems to rule out the possibility that an accused man may, in fact, be the victim of a false allegation and the complainant may not be a victim at all. (It happens.)
This assumption is reinforced by the court’s holding that no evidence beyond the putative victims allegations need be offered in order to “state a prima facie case” of sexual harassment:
"[W]e hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment."
All the plaintiff need do is “allege conduct,” and, even in the absence of further evidence, the court says it will grant her victim status.
Using a “reasonable woman” standard is clearly a good idea. We need to wake up to the way our "reasonableness" standard is skewed by exclusively referencing the "reasonable man." Ellison’s harasser, Gray, had, arguably, merely acted like a fool from a “reasonable man’s” perspective, persistently mooning around and writing adoring love letters betraying his delusions of a relationship with Ellison. But the court found that:
"A reasonable woman could consider Gray's conduct, as alleged by Ellison, sufficiently severe and pervasive to alter a condition of employment and create an abusive working environment."
I find the “reasonable woman” valuable. But there is a big difference between a “reasonable woman” standard and the court's ludicrous proposal of a “reasonable victim” standard.