by STEVEN LEIGH MORRIS
Wednesday evening, LA STAGE Alliance and the Theatrical Producers League of Los Angeles hosted an LA STAGE Talk (presented in partnership with California Lawyers for the Arts and L.A. Theater Network) on preventing actor abuse, onstage and off. The event was instigated by the Chicago Reader story that appeared earlier this year, about the artistic director of a Chicago company, Profiles Theatre, that often produced plays featuring violent themes.
Before the story broke, Chicago critics had been impressed by the authenticity of the stage violence, until they read in the story that much of that violence wasn’t staged at all. Furthermore, actors came forward to the Reader with horror stories of sexual harassment and abuse, both on and offstage, and the actors’ fear of confronting the artistic director due to fear of jeopardizing their professional futures.
Two outcomes of that story included the closure of the theater and the formation of an independent advocacy group, Not In Our House, which has used the better part of the year to come up with a sensible code of conduct — a template to be shared and implemented in order to reach what co-founder Laura Fisher called a “cultural consensus” — not so much regarding permissible behaviors, but on what she described as a clear understanding before rehearsals begin on what would happen, in terms of stage fights and sexual choreography, and what would not. (The goal of this consensus being to find a balance between artistic expression and the protection of actors.)
Fisher appeared as a panelist via Skype at Wednesday night’s forum, held at North Hollywood’s Crown City Theatre Company. L.A. Theater Network’s Ashley Steed moderated. Other panelists included Richard. J Frey, an attorney at Venable LLP; Jaclyn Wright, MSW, a confidential advocate at UCLA’s CARE (Campus Assault Resources and Education) program; Rebecca Ruschell, also an attorney and Associate Director for the Southern California office of California Lawyers for the Arts; and Gregory Crafts, a stage producer and Managing Director of North Hollywood’s Theatre Unleashed, as well as an officer of the Theatrical Producers League of Los Angeles.
Wright explained that her job at UCLA was to provide emotional support to survivors of sexual violence, and to guide them, should they wish, to places where they can instigate an official complaint process — whether that be to the university’s Title 9 Office, which conducts investigations of sexual harassment/violence complaints of incidents that occur on campus, and/or to the police. It’s one thing to provide official information after an assault, she explained, “But what if a student has an important mid-term on the day after she’s been raped?” In such situations, the CARE office can be an emissary for a shell-shocked student to the faculty, and to other authorities.
Wright provided an authoritative take-down of the argument that victims bear some responsibility for the abuse/violence committed against them, because — the argument goes — if they sense sexual tension, they are free to leave that situation. Wright discussed the “cycles of abuse” in which perpetrators put their best foot forward at the beginning of a relationship, before tensions and subtle derision set in, followed by an incident, followed by an earnest apology (diminishing the incident with promises that it will never happen again) followed by a honeymoon phase, followed by renewed tension and derision.
If violence is involved, Wright said, “It’s not so easy to simply withdraw from the situation. There’s a valid fear of stalking and revenge. Maybe they don’t leave because it’s not safe to leave” — a line of reasoning as applicable to the theater as to the university.
Wright also pointed out the damage inflicted by what she described as a kind of “horrible friend” who simply chastises the victim: “Why didn’t you just leave?”
And this is why victims stop telling people, even friends, what happened to them, she said.
Fisher described the reasoning behind the “Code of Conduct” that Not In Our House is still developing. The code, now a 25 page document, is available on their website.
It’s not a legal document, Fisher explained, but rather “a cultural document — a tool in self-governance” in order to establish “some known protocol.”
Words that would be part of a manifesto do not appear in the Code, she explained — phrases such as “We promise,” “We Must,” “You must,” are not part of the language.
The key is to foster an environment in which anything can happen on the stage, so long as everyone agrees to it ahead of time, or there could be a drift towards censorship.
Fisher also said they’re trying to steer clear of the term “employee” — which she said is “not a judgment,” but simply has nothing to do with so many communities of professional artists that put on plays in Chicago. The employer-employee relationship “does not apply to so much of the activity of creating art” across that city, she said, which is more prevalently volunteer and non-union, companies working as quasi-families. The challenge, Fisher added in remark now particularly apt for Los Angeles, is how to offer those actors protection when there’s no union agreement to offer such protection.
(Profiles Theatre joined Actors’ Equity Association in 2012, by which time many of the abuses described in the article had already occurred. The article cites a mixed-record of the Union response to complaints after 2012: In one case, responding to a complaint that a production was rehearsing for too many subsequent days, the Union reportedly stepped right in and obtained overtime compensation for the complainant. In another case, which dealt more with an allegedly abusive personal interaction between the artistic director and a performer, the performer dropped her complaint because she felt that the Union “wasn’t interested.” AEA declined to send a panelist to this forum, but referred LA STAGE Alliance to the L.A. branch of The Actors’ Fund – which provides counseling services to actors, as well as affordable housing options. A qualified delegate from the The Actor’s Fund was also unable to attend due to a scheduling conflict, but the organization provided written materials for the forum.)
Among attorney Richard J. Frey’s assertions was that the case for volunteerism is considerably harder to make in California than in Illinois, and that California state designations lead to absurd situations — that the moment any charity organization starts charging at the door, the community volunteers can become magically transformed into “employees” and minimum wage and pension benefits kick in, even for a hot dog roast fundraiser.
The best line of defense for L.A. theaters, Frey suggested in remarks after the actual forum, is to get a legislative carve-around for non-profit theater organizations, and the best way to get such a carve-around is to demonstrate service to youth, the incarcerated, or to under-served populations, in order to underscore the meaning of “charity” that comes with theaters’ 501(C)3 designation.
Whether or not a sexual harassment happens among volunteers or employees, or between an employer and an employee, under civil law, sexual harassment in “places of public accommodation” is strictly forbidden. That’s one line of defense, Frey urged.
But Frey also contended that the law is often structured against victims of harassment in employment situations, because the burden is on the employer to actively and quickly stop the harassment, which is taxing when the employer may be the perpetrator (in which case the complaint goes to the HR director and/or to a member of the Board), or when the employer may not be aware of the situation’s subtleties. (Both Fisher and Frey stressed the importance of having a clear chain for complaints.) If the employer can demonstrate that, once made aware of a harassment complaint, he or she made a determination one way or another and acted upon it promptly, the employer is generally free, or freer, of liability. If, however, the employer defers for the purposes of deeper investigation into what, on the surface, may seem like a frivolous complaint but may be masking a deeper problem, the employer’s risk of liability goes up. And this is how “justice” and “fairness” can be at cross-purposes.
And then there’s the problem of implied consent.
Frey cited a case on the set of the TV show Friends, when, among of a team of screenwriters, one of the writers complained that another of the writers was adding gratuitously sexual comments to the discussion and to the script — knowing that such dialogue would never appear on that show. The complaint alleged that the real purpose of the remarks was to create a sexually charged work environment. The court, however, ruled that by remaining on the job, in that environment, the complainant was consenting to the sexual provocation, and that, furthermore, the “harassed writer welcomed the contact.”
Ultimately Frey argued, the culture of the workplace determines “end of the inquiry.” If it’s a loose work environment, with a fair amount of jocularity and mutual respect, sexual harassment complaints rarely emerge, because when the behaviors occur, they’re dealt with internally. But in more tightly drawn, status conscious environments, when fear is a larger component of the culture, when those behaviors creep in, the attendant complaints are more frequently lodged with outside entities.
Gregory Crafts spoke about the development of a “Best Practices” document, administered by the Theatrical Producers League of Los Angeles, that includes a sexual harassment component, and shared that TPLLA has been working with Not in Our House in order to find a balance between the needs of free expression and the need to protect actors. Crafts also mentioned that TPLLA is working on a “non-union Agreement” for those actors who are either not in a union, or working under a union code that provides them no health/safety protections.
Rebecca Ruschell described various support programs offered by California Lawyers for the Arts, currently with four offices, with a new one scheduled to open soon in San Diego. Services include a pro-bono lawyers referral program, or a modestly priced referral program, depending on income. The organization also hosts a mediation program, in order to avoid a costly court process. Hotline for the referral program is (888) 775-8995.