In Monday’s post, I referenced the pending sex harassment trial – Marchuk v. Faruqi & Faruqi LLP – to highlight the importance of managers setting a good example. I somewhat smugly said that I was going to avoid the more salacious aspects of that case.
And I did, on Monday. But that was before the reports that the alleged harasser, a law firm partner accused of forcing himself on an associate after a holiday party, offered this testimony (as quoted in Law360 (subscription)):
We were both very drunk and it was awkward and we couldn’t really consummate the act, so to speak.
Seriously? That’s a defense? Is it an affirmative defense, that is one you need to plead in your answer? If so, does it have a name? In what other situations can the “too drunk” defense be used? I assume not drunk driving, but maybe I’m not being sufficiently imaginative. Most importantly, is “consummation” an element of a harassment claim I wasn’t aware of?
We will never know exactly what happened between the plaintiff and her alleged harasser on the night in question. In some ways, what happened will be less important than what a jury says happened. Once they render their verdict, we’ll hopefully get to hear how they viewed this novel defense.