Must punishment be fair?

From a recent column in Vox:

If you believe that a more just world is one in which sexual harassers lose their jobs, the only way you can act to enforce that norm is to take care of the sexual harassers in your midst.

That deceptively simple statement begs several tough questions:  (1) How do we satisfy ourselves that someone is, in fact, a sexual harasser — especially when the accused person disputes or outright denies the charge? Do we care about fairness  or are we only interested, as Emily Lindin suggests, in achieving a better result for women no matter what the collateral damage?

Once we’ve answered that one:  (2)  What “counts” (with apologies for the graceless term) as sex harassment?  Some accusations which have been linked to the recent sex scandals don’t allege sexual abuse at all.  Consider, for example, the accounts of Melanie Sloan, who has accused Rep. John Conyers (D.-MI) of verbal abuse but has also made it very clear that she was not sexually abused by him; and, of Rep. Joe Barton (R.-TX), who displayed questionable judgment in sexting nude photos of himself to his lover, but whose sexual relationship with the woman was by all accounts consensual.

A number of fairly amorphous goals are in danger of being conflated here.  Harvey Weinstein is accused of pressuring women into having sex with him by threatening to destroy their careers if they didn’t.  That’s sex harassment, period, and that’s certainly where this whole conversation started.  But other cases are not so clear.  John Conyers’s treatment of Melanie Sloan, if proven true, demonstrated disrespect for her as a person, and the fact that Sloan complained and could get no one on Capitol Hill to listen to her probably demonstrates similar disrespect system-wide — a denial of her right to be heard.  Joe Barton’s sexting within a consensual relationship signals — what?  Bad judgment?  An improper use of technology to express sexual desire and affection?  Are we ready  to apply the label of “sexual harasser” in order to publicly “take care of” all men who are abusive (but not sexually abusive) bosses?  Whose consensual sex practices offend our sensibilities?  That starts to feel uncomfortable, even dangerous.

Finally, (3) Having defined the term and found the allegation(s) credible, what does it mean “to take care of” someone who we decide is, in fact, a sexual harasser?  Are there gradations of such abuse; that is, are some acts of sex harassment more serious than others?  If the answer is no — if an unwanted touch on the arm is as morally heinous as a threat to destroy a woman’s career and reputation unless she has sex with the offender — then the offense of sex harassment rejects the principle of proportionality, according to which every other offense, public or private, criminal or civil, is graded.  If there are gradations of sex harassment, that in turn suggests that proportionality should be honored:  Acts which cause more harm or are more culpable should be punished more than acts which rank lower on those scales.

Defining prohibited acts, proving them, and assessing their relative seriousness are among the most difficult tasks of any system of punishment.  But those tasks are also most necessary because they collectively describe the difference between a fair system of justice and one that is arbitrary and capricious.

Strengthening women’s right to be heard

From an interesting article by Staci Zaretsky in Above the Law:

“In 2006, the legal profession was plagued by sexism and gender bias, and today… it’s still plagued by those problems. In 2016, however, there are far more avenues and opportunities that allow those who have been discriminated against to rectify the wrongs they’ve faced simply by virtue of being women working as lawyers, including, but not limited to, the availability of a new professional conduct rule enacted by the American Bar Association to address discrimination and harassment.”



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.





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.