“We are strengthened by due process. Just because someone is accused — and was it one accusation? Was it two?” — Nancy Pelosi
Sexual abuse, from coerced sexual intercourse to unwanted touching, is wrong and must be stopped. But when someone’s freedom, career, or reputation is at stake, no accuser has the right to be believed, not unless and until the accusation has been sifted through an impartial fact-finding process which has found it to be true. Our national conversation has confused the right to be heard, which should extend to all credible accusations, with the right to be believed, which should only be granted to accusations that are true.
The confusion was perfectly (if unintentionally) articulated by Hillary Clinton in September 2015, when she tweeted: “”To every survivor of sexual assault…You have the right to be heard. You have the right to be believed.” Clinton got it half right.
Hundreds of women have recently gone public with allegations of sexual exploitation by powerful men, and every decent person hopes that their willingness to speak out will lead to universal adoption of a zero-tolerance approach toward sex harassment and assault. In this context — of setting a better standard for the future — there is no need to parse the details of particular allegations. Collectively, the stories of these women powerfully describe the harms of sexual coercion and demonstrate the need for more equitable standards in the workplace.
But when it comes to deciding whether a particular person did, in fact, commit an offense of which he is accused, decency requires a much different standard. When an alleged offense is disputed or denied by the person accused, that person has the right not to be punished or otherwise sanctioned until he is found responsible by an impartial inquiry into the facts and the evidence.
Statistics purport to show that false reports of rape and other criminal sexual offenses are rare. Such reports are not on all fours with the recent wave of sexual misconduct accusations, the vast majority of which are not criminal charges. But as Rolling Stone’s “Rape on Campus” debacle illustrates, even in the criminal arena false reports do happen, and do get nationally publicized. Thus, fairness requires that we evaluate both sides of a contested charge before inflicting punishment on an accused offender.
The law, of course, exemplifies our value for fair process in situations where private or public parties seek to use the force of government to impose sanctions or punishment on an accused offender. We do not punish someone for a crime, or impose a monetary sanction for a civil wrong, unless and until both sides have had the chance to argue their case before a deliberative body that is (as much as possible) free of bias and open to persuasion by the facts.
But the law is not the only arena where fair process should rule. Legal process is one example of a much larger ideal whose ultimate source is morality. It commands that before imposing punishment or other sanctions on an accused person, we must consider, as impartially as we can, whether those accusations are plausible and well-grounded; whether the accuser disputes or denies them; and whether the accusation or the denial is more credible.
For example, the recent accusations against Rep. John Conyers are serious. He denies them. Rep. Conyers has a long and storied history of standing up for victims, including female victims. The accusations should be heard, but Rep. Conyers is right in asking for a fair and impartial hearing by the House Ethics Committee before he is held responsible and before any permanent sanctions are imposed on him.
Even more important, these standards of fairness and fair process should be applied beyond the political realm. They should extend to all accusations of sex harassment (or any other offense threatening serious sanctions if the accused is found responsible), whether the accused person works in the private or public sphere. Private and public processes for adjudicating the cases may not look exactly the same, but they should attempt to reflect the same value for fairness — for a deliberative and even-handed inquiry led by personnel who have the strength and the will to base their decision on the facts.
This is hardly an impossibly high standard. Judging by the news reports to date, The New York Times appears to be conducting just such a process in the case of its reporter Glenn Thrush, who has been accused of inappropriate behavior toward female colleagues at his former employer, Politico. Pending the results of an investigation into the facts, the Times has suspended Thrush and, beyond indicating that it takes the accusations seriously, has thus far declined to foreshadow the ultimate result. Bravo.
As the accounts of victims attest, the abuse of women in the workplace has resulted mainly from the lack of opportunity to be heard — from the lack of a process which could be trusted to adjudicate claims of sexual misconduct in a fair and impartial manner. Many many women understandably chose to remain silent for years because they knew that such a process did not exist; that instead of being heard, they would be crushed. That must change, and in that context the current pressure to do so should be celebrated. But we can improve the standard of workplace treatment while also honoring fair process. We should do both.