Critiques of institutional responses to sexual harassment don’t only come from concern for victims. Recent efforts to address harassment on college campuses, in the workplace, and elsewhere have also been criticized as unfair to the accused, as we’ve seen. And some of the accounts are genuinely troubling.
I mentioned earlier a story from Wesley College that illustrates what such unfair procedures can look like. In the spring of 2015, a student I’ll call Jane told administrators that a male classmate had, without her knowledge, set up a camera in his bedroom and livestreamed their sex to other students. Jane had consented to sex, she said, but never knew she was being recorded. The same day, Wesley imposed interim suspensions on four students who had allegedly participated in the taping. One of them, “Ryan,” later filed a complaint with the U.S. Department of Education—and for good reason. Wesley’s own policy permitted short-term discipline while an investigation is ongoing, but made clear that students should have a chance to contest the interim suspension, an opportunity Ryan was never given. That was just the start of the procedural debacle.
According to school policy, Wesley administrators were supposed to interview parties and witnesses as part of a thorough investigation prior to any hearing and final determination. But when Ryan showed up to what he thought was a preliminary discussion with administrators, he found himself at a formal disciplinary hearing. He’d had no opportunity to see the evidence against him and, unaware of the nature of the meeting, hadn’t brought any witnesses. At the hearing, an administrator presented an “incident report” prepared without Ryan’s version of the events. And Ryan was never told why, exactly, the college thought he was involved. In fact, Jane didn’t think he was, but he’d been named by one of the other accused men. Unaware of that testimony, Ryan was unable to rebut it. Shortly after, Wesley expelled Ryan from college altogether. In doing so, the Department of Education found, the school violated both its own policies and the law. That wasn’t a onetime mistake: the government investigation determined Wesley had a pattern of violating the rights of both alleged victims and the accused.
Workers have complained of similar procedural injustices. In 2017, the investment bank Morgan Stanley fired Harold Ford Jr., a former congressman, “for conduct inconsistent with our values and in violation of our policies.” A friend told the New York Post that the termination came within twenty-four hours of Ford denying an allegation of sexual harassment—hardly enough time for a meaningful investigation to have taken place. For his part, Ford says he was never informed why, exactly, he was being terminated. As part of a settlement, the bank later released a statement that Ford was not fired for sexual harassment but did not identify the actual reason.
Marta Tecedor Cabrero, a professor at Arizona State University, was the subject of a series of sexual harassment allegations posted on a university message board and reported to her school. Some were anonymous; others came from names she didn’t recognize. None of the “complainants” were willing to talk further with ASU. In such a case, usually a school would close any investigations, perhaps leaving the reports in a file in case another victim came forward with a similar story in the future. Instead, ASU left the investigations open but on ice. The pending investigations cast a shadow over Tecedor’s efforts to find a job at the University of Michigan, where her wife had been offered a dream faculty position. The two later discovered the reports had all been lodged by another professor who had been in the running for that Michigan job. It took Tecedor and her wife’s own detective work to convince ASU to conduct basic fact-checking and close the investigations.
These are egregious cases. As a result, they are also, in some ways, the easiest to understand. But more subtle procedural flaws are also worthy of our concern. While writing this book, I talked to a number of people accused of sexual harassment (mostly but not exclusively men) who felt that their employer or school had treated them unfairly. The errors in their cases were less dramatic but still undermined faith in the institution’s decision-making. And if we really believe in treating everyone with dignity, in pursuing justice for all, then we need to fix those problems, too.
One story that stuck with me was from a young man I will call Brandon. After graduating high school in Compton, Brandon enrolled in a junior college. To finish a four-year degree, he transferred to a public university in California, where he signed up to play football and study communications. During his first semester, Brandon told me, he had consensual sex with another student athlete, “Mary.” She told friends he had raped her, and the accusation came to the school’s attention. An investigation ensued.
Brandon was informed of the accusation, had the opportunity to tell his side of the story, and was allowed to respond to Mary’s. In that way, he was treated far better than Ryan from Wesley. But I understand why he still feels the process was unfair. While many schools provide an adviser to help students navigate disciplinary proceedings, Brandon told me his school never assigned him one, so he was left to manage a stressful investigation on his own. When Brandon was interviewed by an investigator hired by the school, he felt she was “really nice and really helpful” and listened to his account. But she got sick, and a new investigator was assigned. This one was “an old white guy who never really looked me in my eye,” said Brandon, who is Black. (Mary is a non-Black woman of color.) This investigator rushed through the interview, Brandon told me, and then asked Brandon to type up his response to Mary’s account. By his own admission, Brandon did not put the requisite time and energy into his written statement. He told me he was focused on preparing for final exams instead. There was no live hearing, as is now required under California law.
After providing his responses, Brandon learned the school had decided that he did commit assault and would assign sanctions. I reviewed a copy of the investigator’s report, if you could call it that, and was genuinely shocked by its lack of detail and analysis. It provided no explanation for the investigator’s decision, jumping from a bare recitation of the facts to the conclusion. It included testimony provided by Mary’s witnesses, but not Brandon’s, without an explanation as to why. The school provided no further information. Brandon told me that when he sought out the investigator, the older man told Brandon, briefly, that he had found Mary more credible, but did not elaborate.
Brandon hired a lawyer, who helped him appeal his case to other university administrators. They “remanded” it for further investigation—a process that must have frustrated Mary, given that such a redo was not provided for by school policy. Again, the university gave no explanation for its decision, leaving both students in the dark. Ultimately, after nearly a year of investigation, the school dropped the complaint.
Soon after, Brandon graduated, his disciplinary record clean. But the process took a mental toll on him. “You can’t really focus on academics, you can’t really focus on sports,” he told me. “I always was worried about this. Even if I was at a party having a good time, I had that in the back of my head like, all right, this could be over at any given time.” Some of that stress is, unfortunately, part of any such process, even one that is carried out flawlessly. But the school’s lengthy investigation exacerbated Brandon’s anxiety. “I felt like I was more than a suspect the whole time,” he explained. “I already felt like judgment was placed on me. So it was really hard.”
STORIES LIKE THESE present big, hard questions about how to treat everyone fairly in the wake of an accusation. How, in the midst of conflict, can people do right by one another? We like to talk about these issues as matters of “due process,” a legal doctrine enshrined in the U.S. Constitution. But the law, unfortunately, can’t provide definitive answers here.
For one, due process is a much narrower doctrine than many imagine. It is only required (if not always achieved) when the government is taking something away from a person, whether that be their freedom, money, or a job. As a legal matter, due process doesn’t apply to private organizations. So when an op-ed says, for instance, that Woody Allen’s publishing house violated his due process rights by canceling his book deal, the claim is legally nonsensical. The government has taken nothing from him.
A second reason the law can’t answer all our questions about fairness: due process is not a single set of rules that applies in every circumstance. Many people assume that due process always means a full criminal trial, where the accused is deemed innocent until proven guilty beyond a reasonable doubt. In my experience, that misconception is especially strong when it comes to sexual harms. In a series of focus groups, the National Center for Victims of Crime found that a significant number of men (but not women) believed that the only fair way to handle a sexual allegation is a full criminal prosecution.
In fact, though, due process is a set of flexible standards, and it applies differently to different kinds of proceedings. Whenever the government is trying to take something away from a person, due process applies—whether the deprivation happens in court or out of it. So due process is required not only in criminal trials but also in civil suits, immigration proceedings, benefits hearings, discipline of public employees and students, and so on. In each type of proceeding, due process looks different. Establishing what rules are right for different situations mostly happens through appeals: someone who thinks they were subjected to an unfair process turns to a court—or, if they were mistreated by a court, to a higher court—and asks the judges to weigh in. The court decides whether the procedure provided due process and, if not, what else is required. Sometimes courts disagree, and an appeals court a level higher has to resolve the issue. Together, these decisions serve as precedent, providing requirements and guidance for how similar cases should be handled in the future. In this way, judges and lawyers create due process standards for a wide range of circumstances, including many adjudications that happen out of court altogether. But there are always new situations that pose new due process questions that courts have not yet answered. And the fact that judges sometimes come to different conclusions about the same question speaks to the inherently indeterminate nature of due process. There is no perfect formula for fairness. There is just hard work, done in good faith, to try to get it right.
As a lawyer, I get frustrated when public discourse gets so much wrong about what due process actually means, especially when legalese serves as a cudgel to discourage debate. I’ve seen too many thoughtful Twitter conversations about the hard ethics of how to vet sexual harassment allegations cut off by a passionate but legally indefensible argument that “due process” provides a clear, legal answer—even when it does not, technically, apply at all. By disguising moral arguments about fairness in legalistic terms, such interlocutors can make it difficult for others to engage.
I recognize, though, that those underlying ethical debates are ultimately far more important than any legal ones. The law sets the floor, not the ceiling, for what processes must look like. We can, and should, demand fair policies even where those are not constitutionally required. For example, as a legal matter, most private companies can fire an employee for almost any reason (other than a few specific categories such as the worker’s race or sex) without any kind of process. They can decide to terminate a worker on the spot because they do not like the color of her shirt—or because they think she may have stolen from the cash register, even if there is no proof. (Worker contracts can provide more protection than the law does, but often only unions and executives have the power to make companies agree to such conditions.) This doesn’t mean, though, that arbitrary firings are permissible as a matter of ethics. The fact that your boss can legally fire you without warning does not mean he should. Ethically, workers deserve more.
The law, then, cannot answer all our questions about what is fair. But there is a reason why we so often use a legal term, “due process,” to make moral claims: law both shapes and is shaped by our ethical intuitions. For that reason, I think a good way to establish a common agreement about the basics of fair process is to draw lessons from the law. Our ethical commitments do not need to follow bad legal precedents or get mired in the weeds of the doctrine. But we can learn from the broad principles of due process, developed through centuries of debate about what it means to be fair.