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.

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.