How fair do we have to be?

11 Dec 2017
Author: Robert Precht

The wave of sex harassment claims causing the downfall of high profile men is worldwide. After Hong Kong athlete Vera Lui Lai-yui said she was sexually assaulted by her former coach, the man was suspended by the school. It’s unreported what kind of investigation was conducted and what opportunity was given to the accused to defend himself.

In the United States, a recent New York Times article described the mixed reaction of Minnesotans to Senator Al Franken’s decision to resign following accusations by six women including an unwanted grope, forcible kissing, and improper advance. Some citizens applauded the move, saying it was high time for men to be held accountable for sexual misconduct that in years’ past was discounted. Others deplored the resignation. “I don’t discredit these women, but this whole thing is being taken too far,” said a woman. “Why didn’t they let him have the investigation so he could defend himself?”

The flood of sex harassment accusations and of careers destroyed raises an important question. How much fairness do we owe to those who are accused?  

Due Process does not apply

To start, we need to understand that people accused of sex harassment outside a criminal context are not legally entitled to any fairness (or “due process” as lawyers call it). Due process is only legally required when the state is threatening to deprive a person of his or her liberty. This happens when someone is accused of a crime and brought to trial. Trials have various safeguards to assure fairness to the accused, most notably the right to confront and confront the accuser in open court.

By contrast, a person who finds himself merely accused of sexual harassment has no right to a fair process or to “the investigation so he could defend himself” that the Minnesota woman was talking about. Sure, the accused can sue a false accuser for defamation or slander, but doing so is time consuming and expensive, and in the U.S., it is notoriously difficult to win cases when the person accused is a public figure. Meanwhile, people who are dismissed by employers or whose reputations are ruined have no legal right to fairness. That’s both good and bad.

Helping victims

It’s a good thing for society that people can be punished without trial because we want to make it as easy as possible for victims of sex harassment to seek redress. As the #MeToo social network campaign has shown, women everywhere have felt degraded and shamed into silence for years. They had no faith that society’s businesses and institutions would take them seriously; indeed, they felt fear of retribution should they make charges. Social media is giving them a forum to express themselves that they have never had. Given this sad history, requiring women to undergo a trial and be subjected to cross-examination before penalizing their abusers would be a giant step backwards.

Disadvantaging the accused

At the same time, it’s a bad thing that people can be punished without trial because it’s a form of guilt by accusation. The hallmark of guilt by accusation is depriving the accused of the opportunity to confront and cross-examine his accuser. Extreme examples are Stalin’s purges, Mao’s “struggle sessions” in which supposed opponents were denounced and tortured, and Joseph McCarthy’s Red Scare campaign that saw people fired from their jobs based on rumors that they were Communists. Of course, nothing in the present sex harassment cases approaches these horrors, but they are cautionary lessons.

The tendency to prejudge

It may be unwise to demand due process for accused sex abusers, but we need to recognize what we’re giving up.  The traditional Anglo-Saxon trial reflects the wisdom of centuries’ experience that truth is often elusive.  Experience suggests that human nature tends to prejudge: to categorize too swiftly and  -- in the words of legal philosopher Lon Fuller -- to assume too readily, “to reach a conclusion at an early stage and adhere to that conclusion in the face of conflicting considerations later developed.” Our all too human tendency “to judge too swiftly in terms of the familiar that which is not yet fully known” can only be counteracted by the adversary system with its elements of live testimony, cross-examination, and vigorous defense counsel.

Trials are not perfect. Despite safeguards they can still lead to false convictions. But they are better than regimes of accusation that contain no fairness safeguards. Trials force us to try to be fair.

Channel your inner defense lawyer

The dilemma is stark. By making it easier for victims of sexual harassment to seek redress, we risk abandoning elemental notions of fairness. By insisting on due process, we make it more difficult for victims to come forward and be heard.

There is no solution, but let me suggest a stopgap measure, which some people may find distasteful. Since the people being accused of sexual harassment are not receiving trials, we ourselves must give them fair trials in our own heads. In effect, we must act as the accused’s defense lawyer.

Before rendering judgment, we need to ask two basic questions: what is the evidence of wrongdoing and is the evidence reliable? For example, did the victim promptly report the incident to a friend or relative and if not why? What, if any, are the victim’s motives to lie or exaggerate?  Incapacities to recall events clearly? Remembering that multiple accusers is not in itself conclusive, we need to ask if their individual accounts are independently strong. Do these accusers too have flaws in their recollections?

Reputable investigative journalists no doubt ask similar questions when they are interviewing witnesses and gathering evidence for their exposes. But one thing they can’t do is simulate the truth-finding capacity of a criminal trial where the accuser and the accused are in the same room, the accused is able to cross-examine his accuser, and the jury or judge can look at the demeanor of persons testifying to gauge their truthfulness. Common sense tells us how important a person’s demeanor is. We look at the face and listen to the tone of voice to determine a person's sincerity.  

It may be distasteful mentally to play the role of defense lawyer because it puts us in the position of questioning the accounts of victims who may have suffered grievously and be telling the truth completely. Nevertheless, it's a helpful mental exercise in this new era of guilt by accusation. We may still reach the conclusion that the accused is guilty. But at least we will have the satisfaction of knowing that our judgment is informed by some measure of fairness.