No one has the right to be believed.

“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.

Stephen Galloway fears a witch hunt

In an interesting Hollywood Reporter piece published yesterday, Stephen Galloway addresses media coverage of the sex scandals involving Harvey Weinstein and others. Galloway asks,

[M]ay I confess that I’m scared?

I’m terrified that, in our righteous quest to do good, we’re sweeping up the innocent as well as the guilty. We’re accepting allegations in the place of solid proof. We’re conflating those guilty of more minor crimes with perpetrators of egregious and even criminal behavior.

Journalists have a responsibility to stand firm, to not get swept up in the rush to judgment or the race to break a story, remembering that some of the most incendiary material — just like the McMartin allegations — may turn out to be less combustible than it seems. There’s a lot more fire behind the smoke today than there ever was in the McMartin case — the proof: Halperin, Spacey and others’ tentative apologies — but that doesn’t mean smoke is always accompanied by fire.

And yet most journalists are rushing forward without pause. And in doing so, they’re increasingly stretching the limits of what’s acceptable to report, breaching the thick wall between gossip and fact.

I share these concerns (see my two most recent posts), but have been thinking about a different part of the problem — the extent to which private entities such as employers, before terminating or otherwise repudiating an accused employee, should ensure that potentially damaging allegations are fully investigated and that the accused person has a fair chance to dispute them. Galloway’s take, by contrast, is that journalists are falling down on the job in reporting this story, abandoning standards of professionalism under which “it was inconceivable to print such damning reports without having iron-clad facts, or without giving both sides a chance to air their stories. But [those standards have] altered in the course of three weeks [in the wake of first published reports about the allegations about Weinstein]. Faced with white-hot competition, we’re giving up tried-and-tested codes of conduct, knowing that if we don’t, we’ll lose the battle to get the story first.”

Alec Baldwin on Weinstein (et al.) sexual misconduct scandal

In a November 4th interview with PBS Newshour, Alec Baldwin discussed the allegations against Harvey Weinstein. As Marlow Stern writes in The Daily Beast, one exchange went like this:

“You heard the rumor that [Weinstein] raped Rose McGowan. You heard that over and over, and nothing was done. We’ve heard that for decades and nothing was done,” said Baldwin. When the interviewer said “well nobody said anything,” Baldwin replied, “Well but what happened was Rose McGowan took a payment of $100,000 and settled her case with him. It was for Rose McGowan to prosecute that case.” [emphasis mine]

I understand why some found these remarks distasteful. On the other hand, and intentionally or not, Mr. Baldwin put his finger on an issue which ought to concern advocates for women’s autonomy. It is one thing to praise the courage of those who have come forward with truthful allegations of sexual misconduct against powerful men. Their willingness to tell what happened to them seems to be propelling Hollywood and the media toward a new, and unambiguously better, standard of treatment for women, men, and children whose youth and vulnerability have been ruthlessly exploited in the past. We can all celebrate that.

But it’s another thing entirely to suggest that the (mostly female) past victims of such exploitation did the wrong, the dishonorable, the cowardly thing by choosing to accept a confidential financial settlement in lieu of publicly exposing their abusers. This second argument strikes me as profoundly mistaken. It seems to impose upon the victims of exploitation a duty of self-sacrifice, in behalf of future victims, that under the working conditions which apparently existed until quite recently, could well have resulted in the destruction of their personal reputations and of their ability to work in their chosen professions.

Had a fair process existed for adjudicating complaints of abuse and exploitation, and had that process been open and accessible to victims, then perhaps we might ask questions about victims who rather than reveal their mistreatment chose instead to accept a confidential settlement from the abuser. But this, by most accounts, was hardly the case for victims such as Rose McGowan and many others. Faced with the reality that publicly reporting their abuse would (at least) accomplish nothing because they would not be believed or supported, and (at most) result in their own punishment by abusers who were often in a position to inflict it, some chose to take what justice they could find, in the form of a confidential settlement. That is a choice which should be respected even as we applaud the willingness of victims to come forward, under the suddenly different conditions of now, and tell their stories publicly. To do otherwise is to be dishonest; is to treat individual victims of abuse as though their abuse occurred in a setting where they could have, but chose not to, achieved a more just societal standard by publicly exposing their abuse.

Alec Baldwin’s remarks capture part of this truth — that the secrecy in which many cases of abuse occurred, and were resolved, probably kept the issue from the general public’s knowledge for a long time. If he was also suggesting that the victims of abuse, by choosing to accept settlements instead of going public, were somehow to blame for the abuse, or have no cause to complain about it now, then that claim cannot be accepted. The source of blame for injustice is not the victim, but the perpetrator and the culture/society which (perhaps subliminally) permits and supports his actions. Victims in such a setting should feel free to choose among the limited options available to them, including the option of settling with the abuser individually and moving on with their lives.