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What Ellen Pao’s Trial Says About Our Understanding of Consent

One of the central stories of Ellen Pao’s gender bias trial against Kleiner Perkins Caufield & Byers was her affair with a colleague, Ajit Nazre, and how the aftermath led her to believe the firm treated women unfairly. Pao’s lawsuit didn’t claim Nazre harassed her, but over the course of the monthlong trial it became clear that he had made unwanted advances toward multiple women at the firm, and that those women were reluctant to fight it, despite how uncomfortable they were. Pao ultimately gave in to Nazre’s “relentless” and dishonest advances, which allowed the defense to paint the affair as consensual, despite numerous signs that it wasn’t. The fact that so many people seemed to buy this version of the story, including female reporters covering the trial, says we have a long way to go toward really understanding consent and power dynamics in sexual relationships.

Nazre began pursuing Pao in early 2006, not long after she was hired as John Doerr’s chief of staff at Kleiner Perkins. It started with a business trip to Munich: while darting across a busy street, Pao was struck by a taxi, injuring her leg. She sat down, in shock, to take stock of the situation. Nazre, who had already expressed sexual interest in Pao, took advantage of her vulnerability and put his arm around her. The gesture made Pao uncomfortable, but she testified that she couldn’t move away because she was hurt, and she didn’t tell him to stop because she was in a daze. People who are drunk, high or unconscious can’t consent; it’s no different when someone’s in shock.

Later, Nazre asked for her hotel room number, but she gave him a false answer. What she didn’t know at the time was that Nazre had once shown up at the hotel room door of another female colleague, wearing his bathrobe and slippers.

Despite Pao’s resistance, Nazre was undeterred. She told him repeatedly that she wanted nothing more than a business relationship, but he wouldn’t give up: “He continued to pursue me. He was relentless.” Pao frequently brushed him off on the grounds that he was married. Later, Nazre told her that his wife had left him. Even then, Pao rebuffed him, saying he should try to work things out with his wife.

It was only after he told Pao that his marriage couldn’t be repaired that she gave in. Stephen Hirschfeld, an attorney Kleiner Perkins hired to investigate her bias claims, said Pao told him it wasn’t a pleasant affair. Of one encounter, “She said, ‘I was in his room. We had sex. It was a nightmare.’” Hirschfeld said he believed Pao must have lied to him about her relationship with Nazre because she felt it wasn’t consensual, because Hirschfeld thought that it was. Instead of believing Pao’s statements that she was badgered and manipulated into the affair, this “expert” disputed her experience.

Pao and Nazre dated on and off for about six months, but she abruptly ended it when she learned that Nazre had lied about his marriage, and that he was still with his wife. Nazre’s dishonesty means she didn’t enter the affair with full knowledge, putting her in a position of less power. A person can’t consent to an intimate relationship when that relationship is based on trickery. “When I found out that he lied to me and his wife had not left him, I ended it immediately and firmly. I was furious,” Pao testified. “I felt manipulated and deceived.”

“Consent is based on choice. Consent is active, not passive. Consent is possible only when there is equal power,” according to the San Jose, California, YWCA rape crisis center. “Giving in because of fear is not consent. Going along with something because of wanting to fit in with the group, being deceived or feeling bad is not consent.”

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After the breakup, Pao sent Nazre a number of passionate, often angry text messages, which were read aloud in Judge Harold Kahn’s San Francisco courtroom. She told him that she missed him, but she couldn’t stand his hot-and-cold treatment of her. She also accused him of taking advantage of her vulnerability, another sign that the power dynamic between them was far from equal. “You knew I was susceptible. I told you how the last guy I dated also cheated on me.” In a later message, Pao got angry, telling Nazre, “You are so fucked.”

Despite that last text, Pao said she tried to move on so that she and Nazre could have a productive working relationship. Nazre, who didn’t testify in the trial, seemed to have other ideas. He started excluding Pao from meetings and email conversations with clients she wanted to work with, even when he knew she was both interested and available. Once again, he held power over her.

“It was something that made it hard for me to really do my job. It was a small partnership at the time and it was important to know what other people were doing and he made that much more difficult,” Pao testified. When she called Nazre on his behavior, he was dismissive, telling her not to make such a big deal out of his brief conversations with clients.

When Nazre’s behavior didn’t improve, Pao approached his mentor, senior Kleiner Perkins partner Ray Lane. During the discussion, Lane related that he had met his current wife at Oracle while he was still married to his former wife. He called the Oracle colleague “the love of my life,” Pao testified. “[He said] I could have that with Ajit.” Pao said she felt like Lane was suggesting she continue the affair.

Lane, like Nazre, also told Pao not to “make a mountain out of a molehill,” and encouraged Pao to have lunch with Nazre to smooth things over. She did, at the Woodside Bakery, where Nazre turned the conversation to more personal matters. “He said he still loved me and wanted to be with me, and I got out as fast as I could and he followed me to my car,” she said. Nazre still wouldn’t give up, despite Pao’s decision that she was done with him romantically.

Once Doerr got wind of Nazre’s behavior, Doerr wanted to fire him. But Lane wanted Nazre to stay on. He urged Pao to change Doerr’s mind, which she ultimately did. Instead, Nazre got a slap on the wrist, Pao testified: “John said because of Ajit’s actions he had not received a bonus, and I said, ‘No, actually he did receive a bonus because he came in and yelled at me for getting a smaller bonus that he should have.’ John said, ‘Yes, but it was cut quite a bit.’”

Nazre was later promoted to a lucrative senior partner role at Kleiner Perkins, but fired after another Kleiner Perkins employee came forward with her hotel room/bathrobe story. When asked why he took action against Nazre after the other woman’s complaint, but not Pao’s, Ray Lane responded, “One was a consensual sexual relationship, and one wasn’t.”

Both sides made much of the fact that Pao received degrees from Princeton University and Harvard, prompting some observers to wonder how such a smart, well-educated woman could have ever been tricked into having a relationship she didn’t want. But that isn’t how it works; an Ivy League education doesn’t necessarily prepare you for the kind of pressure and manipulation Nazre was laying on her.

Both legally and culturally, consent remains a kind of gray area. As the Rape, Abuse and Incest National Network points out, consent laws vary by state and by situation, which can muddy the waters of understanding. But as the concept of rape culture becomes more well known, more and more organizations, including Planned Parenthood, are launching campaigns to educate people about what consent means. As a society, we are beginning to recognize that children need to be taught about consent from an early age. But such initiatives are relatively recent and haven’t had the chance to make big changes.

I don’t fault Kleiner Perkins for doing everything it could to cast doubt on Pao’s version of events. After all, she sought more than $100 million in damages; a lot of money, even for a wealthy venture capital company. The problem is that they were able to pull it off. They could do it because we live in a culture where it’s too easy to cast doubt on a woman’s version of events. We live in a culture where she can say she was pressured and tricked into a relationship but others will say she participated willingly. In consumer-protection law, it’s illegal for a product’s label to lie about what’s inside; it’s considered false advertising, even fraud. But when one person does this to another, and they buy into it, many call it consent.

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