Sexual misconduct scandal: What counts as fair process in the private sector?

In the month since the New York Times first reported on sexual misconduct allegations against Harvey Weinstein, almost 80 women have come forward to report mistreatment by the Hollywood producer.  Meanwhile, allegations have surfaced against a number of  prominent male figures in the media, theater, and other professions.  And in many cases, the consequences for those accused have already been significant.  Allegations by victims have led employers and other professional organizations to publicly repudiate and disassociate themselves from accused perpetrators without much further ado — even in cases involving accusations that are decades old and which the alleged offender has denied.  This has not been the universal response:  For example, some companies have launched investigations while suspending the accused employee pending a final decision.  But in a fair number of cases, private organizations have dismissed or disassociated themselves from the alleged perpetrator so soon after the accusations came to light — and, again, even in cases where the accused person has not clearly or fully acknowledged their truth — that it seems obvious no real attempt was made to investigate the facts.

Assuming that they have complied with their own policies and with any relevant provisions in individual contracts, it may well be the case that private employers and professional associations can legally do this.   No one has the right to these jobs, after all. In general, and assuming they comply with the very broad parameters of civil law, private employers are free to act in their own best interest — say, to fire an employee whose possible involvement in a widely reported scandal might bring discredit to the organization — regardless of whether the allegations against the employee have been proven or whether the employee has been offered a fair opportunity to challenge them.

Still, the hasty progress from charge to discharge, from allegation to termination, that has characterized some sexual misconduct allegations this fall, raises uncomfortable questions.  Should fair process, at least in the form of an impartial investigation and a reasonable opportunity to respond before being fired, be an important norm in such cases?  Or are publicly revealed allegations alone, even when flatly denied by the accused,  sufficient grounds for their professional communities to fire or otherwise repudiate them?  It is remarkable that in all the media conversation about this issue over the last month, these questions have never been raised.

Some publicly reported allegations in this scandal are troubling, for several reasons.  First, a significant percentage of the accusations are decades old, dating back to the 1980s or even earlier.  The accusations may well be true,  and the accusers’ reasons for not coming forward earlier may be understandable or even compelling.  The problem is that allegations which are so old are always difficult to prove or disprove, and the more time that passes, the more difficult it becomes.  With time, even assuming complete honesty by all parties, memory blurs; witnesses die, move away, or forget important details; physical evidence becomes undiscoverable.  Of course evidentiary standards in a private setting needn’t approach the rigour that would be expected in a courtroom.  Even so, these time-related issues which can make it impossible objectively to determine the truth or severity of allegations, and thus deny the accused a fair chance to dispute them.  It is some comfort that responsible journalists often seek to obtain contemporaneous corroboration of allegations from friends or associates who knew the complainant at the time the alleged harassment or assault occurred.  But again, and with the best will in the world, a person’s friends and close associates are not always the most impartial witnesses.  And for an accused perpetrator, who said nothing to anyone at the time (perhaps because he knew he had done wrong, but perhaps because he had not done anything wrong) — a standard which is satisfied by corroboration from the complainant’s friends,  seems structurally one-sided.  (Those who have followed the criminal law of sexual assault will remember the unfair standards formerly applied in rape cases, when prosecutors insisted that rape charges be supported by “corroboration” in addition to the types of evidence normally required to prove a crime.  Here, the concern is different:   that corroboration by an accuser’s friend, alone and without further evidence, should not be sufficient, in either public or private contexts, to prove a decades-old charge of sexual misconduct).

Second, in a significant portion of cases, the accused perpetrator has denied, or at least not clearly admitted, the allegations.  Again, the denial might be false, and in private settings we do not accord accused persons the presumption of innocence which would attend criminal proceedings against them.  Nonetheless, and leaving legal process completely aside, it would seem that basic fairness requires that an accused person be given a formal chance to dispute such allegations and to produce whatever evidence he can in support of his challenge.

Third, some public accounts of the harassment scandal seem to assume that the sheer number of allegations — which in some of the cases is considerable — constitutes sufficient justification for whatever negative sanctions may ensue.  This, too, is troubling, again completely apart from the legal standards that would apply in court.  A related concern:  It has been said that “everybody knew” some of these men abused women, that in many cases it was an “open secret” that they had done so for years and years.  But what exactly does this mean?  Is the mere statement that “everybody knew” sufficient to prove that such universal knowledge in fact existed — that it was not at least in part a creature of rumor, gossip, a decades-long game of telephone?  And if basic fairness is an important goal in this setting, how should the “everybody knew” standard factor into a private entity’s decision to terminate the employment, the award, the membership of an accused person?

My own fear is that our national conversation about this scandal  has conflated two justice-related standards which are in fact quite different.  Sometimes society reaches a tipping point with respect to a particular wrong; something (such as the accusations against Harvey Weinstein) tips the balance and the standard changes, often for the good.  Every reasonable person hopes that the customs and subliminal permission that some men may have perceived to humiliate, harass, and assault vulnerable women are now being exposed and are on their way out.  In that context — of setting a new and more equitable societal standard — the people who are speaking out about the wrongs done to them, including those who are reporting wrongs done long ago, are probably doing a whole lot of good by making clear what the standard has been, why it was wrong, and what harms it has caused.

When assessing the liability of individuals charged with committing past wrongs, however, a different standard should apply.  In that context, and whether the setting is private or public, each accused person should be given a fair chance to dispute the allegations against him — especially when a finding of responsibility will result in sanctions which could dramatically alter the course of the person’s future.  Where a fair chance to challenge accusations does not exist, either because no such process is available in the organization or because the allegations against the person are in fact unprovable or undisputable, the person should not be sanctioned or punished for the allegation alone.

Under conditions where intense public pressure supports a new societal standard, fair-minded individual process is what separates a just result from a purge.


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