Caring about two things at once is hard. It’s certainly harder than caring only about one. But it’s important to say as plainly as possible that there is no conflict between caring about harassment and caring about fair treatment of those on both sides of an accusation. Both sets of concerns, when genuine, are animated by commitments to individual dignity, equality, and giving people opportunities to flourish in public life.
Years ago, Know Your IX organized a teach-in about fair process for all, including the accused. The presentation, held for student organizers around the country, many of them victims themselves, explained why fair procedures should matter to all of us and what a good process should look like. Soon after, a student survivor reached out to complain about our decision to spend time discussing the rights of accused students. Her objection was not trivial. In a world in which the well-being of sexual abusers is so regularly prioritized over that of their victims, why would we, an organization dedicated to survivors, focus considerable energy on the rights of alleged harassers? More fundamentally, the world is still marked by undeniable gender inequality. Why would we encourage a movement primarily made up of women to care about a problem that primarily hurts men?
Those questions came to mind when I read Kate Manne’s perceptive diagnosis of “himpathy” as a key component of misogyny. In the context of harassment, Manne explains, “himpathy” rears its ugly head as “excessive sympathy sometimes shown toward male perpetrators of sexual violence. It is frequently extended in contemporary America to men who are white, nondisabled, and otherwise privileged ‘golden boys.’ … There is a subsequent reluctance to believe the women who testify against these men, or even to punish the golden boys whose guilt has been firmly established.” To Manne, Stanford student Brock Turner is a classic case. Turner assaulted a campus visitor, Chanel Miller, while she was unconscious, and he was convicted of felony sexual assault—a rare occurrence, given the low rates at which these crimes are prosecuted, and the even lower rates at which they result in a finding of guilt. The prosecutors asked for a sentence of six years in prison. Yet the judge, Aaron Persky, sentenced Turner to just six months, shocking many.
Most disturbing to me (and, I think, to Manne) was not the length of the sentence—we Americans lock people up for far too long—but instead Persky’s justification for it. As he saw it, Turner was, despite everything, a good guy at heart, and for a young Stanford athlete with a bright future even a short prison term would be devastating. He had raped someone, sure, but he wasn’t a rapist. In a letter to the court, Turner’s father wrote that the whole matter had already been very difficult for his son, who had lost his appetite even for “a big ribeye steak.” Of this, Manne writes: “The excessive sympathy that flows to perpetrators like Brock Turner both owes and contributes to insufficient concern for the harm, humiliation, and (more or less lasting) trauma they may bring to their victims.… In the case of male dominance, we sympathize with him first, effectively making him into the victim of his own crimes.”
Given the pervasiveness of himpathy, it’s easy to understand why some might look askance at Know Your IX when it devotes energy and resources to protecting accused students’ rights. An onlooker might charge us with seeing these accused students—most of whom are male, and most of whom, statistically, probably did it—first and foremost as victims. That’s a fair diagnosis when it comes to many critics of university efforts to address sexual harassment, who consistently care only for the accused, never for survivors, and who use “due process” rhetoric as a cover for their bias. As I discuss in the last part of this book, bad-faith actors regularly use procedural objections to ensure male impunity. Anti-harassment advocates are well aware of that. As a result, some are primed to view any call for due process as a sexist effort to elevate, once again, men over women, the needs of abusers over those of their victims.
But however understandable it is, the view that attention to the procedural rights of alleged harassers is inherently anti-survivor is wrong. To begin with, one can decline to feel sorry for the accused but still recognize that fair procedures are practically and politically necessary, even helpful, for victims. And I’ll go a step further: measured compassion for alleged harassers facing the threat of punishment makes for better policy. After all, what Manne criticizes is not concern for the accused in any form, especially when an allegation is not yet proven. Hers is a critique of excessive empathy, misused—empathy that crowds out concern for other worthy subjects, empathy that is impervious to fact. What doesn’t need to be laid aside is the basic empathy (or at least sympathy) that ought to exist among all of us as fellow humans. Just because some critics abuse the principles of due process in their quest for male impunity does not mean that we, as feminists, should reject the truer, better version of those same principles. To do so would be ethically wrong and an abandonment of the commitments—to justice, freedom, equality, human dignity—that drive us to care about harassment in the first place.
This is especially clear when we remember that not all who are accused of sexual harassment are privileged “golden boys,” as Manne herself repeatedly reminds us. Concern for alleged abusers is particularly difficult and uncomfortable because so many of the best-known ones are men insulated by power or status. Harvey Weinstein and Brock Turner do not exactly tug at the heartstrings. And sexual abuse often goes hand in hand with privilege: those who feel most entitled in general often feel entitled to the bodies of others. But it’s also true that there are plenty of sexual harassment allegations that occur outside the spotlight of media attention precisely because those involved, including the accused, are not famous, are not powerful, are too poor or Black or queer to make headlines.
Let me be clear: I’d never expect a survivor to sit around empathizing with the plight of someone accused of doing what was done to them. That burden does not fall on victims’ shoulders. But for those of us who have taken on the task of grappling with tough policy questions, we should take to heart that we can honor both our commitment to survivors and our commitment to procedural fairness.
PART OF WHY fair procedures matter—in harassment cases and all others, both in and out of legal settings—is that they help decision-makers come to more accurate conclusions, untainted by bias or other forms of irrationality. That’s why it is so important for each side to be able to review the other’s evidence and present their own version of the story. As a general matter, procedures that allow both parties the opportunity to provide full information—the opportunity to be heard, in the language of due process—will facilitate truth-seeking.
But accuracy is only part of why fair procedures are so important. After all, many of the fundamentals of legal due process purposefully stand in the way of accurate decision-making. Courts toss confessions given without a Miranda warning and ignore evidence collected without a proper warrant. Ryan, the Wesley college student I mentioned earlier, might have been forthcoming with university administrators precisely because he did not know, walking into his interview, exactly who had accused him of doing what. That the ambush served a truth-seeking function does not mean that depriving him of notice was fair. Because fairness is about more than the outcome.
We deliberately embrace rules that sometimes get in our way because procedure, at its best, affirms the dignity of the people who must travel through it—on both sides of an allegation. Some of the most powerful writing on due process and dignity comes from Jerry Mashaw, a pioneering scholar in the normally dry and technical field of administrative law. An unfair process, Mashaw writes, “defines the participants as objects, subject to infinite manipulation by ‘the system.’ To avoid contributing to this sense of alienation, terror, and ultimately self-hatred, a decisional process must give participants adequate notice of the issues to be decided, of the evidence that is relevant to those issues, and of how the decisional process itself works.” To be treated fairly is to be treated as a human who matters.
Some of the dignity-affirming features of proper process are obvious, like the right to present your side of the story. But some can be quite subtle. For example, Dan Roth, a Berkeley lawyer who represents students accused of sexual harassment, told me he wishes that schools would sign emails to his clients with a person’s name rather than simply “The Office of Student Affairs.” That way, accused students would know whom to contact with questions about the process—and would feel like people interacting with other people, rather than widgets on a conveyer belt headed who knows where.
The ways that process promotes or undermines dignity may sound airy and theoretical. But the effects are concrete. People notice how a procedure makes them feel, and how they feel affects how well that procedure works. A voluminous empirical literature shows that participants are more likely to buy into the result of a process when they feel it’s fair—even when they do not like the outcome. And such “procedural justice” isn’t just an individual matter. Research has found that people are more likely to comply with police and court orders when they perceive the system as procedurally just, a perception that is often based not only on people’s personal experiences but the experiences of those around them. The flip side is that without consistent fair processes for individuals, the perceived legitimacy of an authority deteriorates system-wide.
These lessons extend to other kinds of decision-making and adjudication, including those outside the legal system. One study, for example, looked at how employees react to bosses’ decisions about pay raises, examining how the process by which those decisions were reached affected how people felt about the results. The researchers found that a company’s use of certain elements of fair process—such as providing reasoning based in evidence and allowing the employee an opportunity to offer input about their performance—contributed to greater pay satisfaction. It also increased employees’ trust in their supervisors and overall commitment to the organization. Crucially, that was true regardless of the size of the worker’s raise. A similar dynamic plays out when employees are fired: if they feel they were treated fairly in the process, they respond less negatively to the outcome. And in the wake of layoffs, the remaining staff are more committed to the organization, and more cooperative, if their departed colleagues were treated well.
Such procedural justice research shows that for feminists engaged in the fight against sexual harassment, attention to fairness for the accused is strategically wise. To put it bluntly, we as a movement are always on thin ice, for all the same reasons victims are disbelieved. Many people believe our cause is made up, or at least exaggerated; some believe that what we allege is real but just not worth ruining the future of a nice young man. The legitimacy derived from procedural justice can buffer against historical skepticism that there ought to be any consequences for sexual abuses at all. And this, in turn, will benefit survivors.
To put it another way: because we as a society collectively decided that sexual harassment is a problem only a few decades ago—and some people are still not so convinced—there is a built-in assumption of illegitimacy to any endeavors to address those harms, especially outside a courtroom. Consider the backlash to campus efforts to address sexual assault—efforts that some believe ushered in unfairness against the accused. The backlash’s central mantra is Get schools out of this business altogether. As we’ll see later in this book, the perception that school discipline procedures were unjust spurred state and national campaigns to limit the ability of colleges to address sexual harms at all. If these efforts succeed—and the story of the Title IX backlash is far from over—student survivors will lose access to significant remedies and will more likely be forced to choose between remaining with their abusers on campus or dropping out.
ANOTHER BENEFIT TO fair procedures: processes that engender community trust—that victims see as legitimate authorities to resolve conflicts—also reduce the likelihood of the wronged turning to vigilante options that put everyone at risk. In an essay titled “Folktales of International Justice,” law professor David Luban writes about Soghomon Tehlirian, a survivor of the 1915 Armenian genocide. In the aftermath of World War I, the Allies initially hoped to prosecute the genocide’s perpetrators for violating “the laws of humanity.” But the Americans objected that those laws were too vague for criminal culpability, and the effort failed. A few years later, Tehlirian—then only seventeen—shot and killed the genocide’s primary mastermind. Today, a monument to Tehlirian stands in Fresno, California, where he is buried. “This monument has been erected by the Armenian people in memory of Soghomon Tehlirian, the national hero who on March 15, 1921, brought justice upon Talaat Pasha, a principal Turkish perpetrator of the Armenian genocide of 1915,” it reads. Luban interprets the monument as declaring: “If the law will not bring justice … then justice will fall to vigilantes like Tehlirian.”
History provides too many instances where, as one book on the subject puts it, “the government fails to protect and to do justice,” and so “victimized citizens are left with little option but to do these things for themselves.” Certainly, some of the community-based approaches that arise in the vacuum left by a broken system are transformative and deeply productive. But voluntary, collective accountability and reconciliation are not always possible, and that is when the Tehlirians emerge. Such vigilantism puts ordinary citizens at tremendous risk, embroiling them in extralegal violence, transforming them into targets for the government, and putting them in danger from their victims’ defenders, who might take vigilante action themselves. And vigilante efforts at justice outside the law also put suspects—not all of whom, of course, are guilty—at risk of both inaccurate and overly harsh punishment.
All this rings true to me based on my own exposure to vigilantism in far less dramatic form. When I was in college, my roommate Kate and I often spoke admiringly of Brown University students who, decades earlier, had written the names of classmates known to be sexually violent on bathroom stall doors as a warning to others. They had devised a solution to a problem we saw on our own campus. Our social circles shared news in hushed tones of who had raped whose friend, who should be avoided at parties, who seemed charming but got aggressive when drunk. My friend Miranda, bless her, would whisper words of caution into the ears of girls she saw dancing with these men. And yet the flow of information was stymied, limited by the contingencies of friendships and cliques. I could have told you who on the weekly newspaper to avoid, but had no clue who on the swim team or in the debate society had a bad reputation. Whisper networks left those least plugged into any given scene, and indeed those most isolated from their classmates as a whole, most vulnerable to serial wrongdoers.
And our college, the proper authority to handle these allegations, did nothing. None of us could trust the school to act; we rarely turned to it for help, and when we did so, the administration generally confirmed our fears about its ineffectuality. Much of this was about substance, not procedure. The school was simply unwilling to sanction students for sexual assault. But plenty of our concern was procedural, too. Multiple boards were tasked with investigating sexual harassment, covering different jurisdictions, with different powers and responsibilities. None of this was clear to harassment victims: the school’s website directed students to various resources on various pages with no explanation, and did not list a Title IX coordinator, a position that federal law requires schools to have and make known. To whom a student first reported could determine the whole path of a complaint, like a labyrinth of water slides that might drop you into a pool of sludge. Even after we filed a Title IX complaint with the Department of Education, and the federal investigation brought on significant reforms, the school still attracted scandal when it empowered a single provost to reduce sanctions against faculty members. In one instance, that provost refused to remove a harassing professor with whom he had close ties.
No wonder, then, that lists on bathroom walls seemed relatively appealing to Kate and me. We knew the men who had hurt us, collectively and individually, but we had no fair process by which to hold them accountable. Why not take justice into our own hands?
We never worked up the courage—a failing for which I am now grateful, as I look back on the proposal with far less moral certainty. But in the years following our graduation, students at other schools made headlines when they did follow through on similar ideas. At the University of Chicago, students made a website listing “people known to commit varying levels of gender-based violence.” At Brown, students resurrected the bathroom-stall tradition from a quarter-century before. Columbia students also scribbled names on bathroom stalls, which the university repeatedly cordoned off and scrubbed clean. Among the men on the Columbia list was a student who had admitted to raping a classmate but returned to campus after one semester. “We needed some way to warn people that these people are violent,” one of the students who wrote the list told the Guardian. Yet because the university’s confidentiality rules prohibited students from speaking about their own reports, even to friends, activists could not share such warnings except anonymously. At a high school in the East Bay, students’ bathroom lists were removed by administrators, so a girl created an Instagram account naming classmates and teachers accused of harassment; students at other local high schools soon followed suit. One young woman told me she’d started such an account for her small Catholic school because administrators had been largely unresponsive to her report months earlier that a student had sexually assaulted her at a party. If adults wouldn’t protect her classmates, she would.
In October 2017, a friend sent me a link via the secure messaging app Signal. It took me to a spreadsheet titled “Shitty Media Men.” The men on the list were mostly affiliated with the New York writing scene; I’d heard of some of them and knew a few personally. Their offenses were detailed and ranged in severity from inappropriate texting to rape. Men accused of physical violence against multiple women were highlighted in red. I was exhilarated by the idea that some men might finally get what was coming to them. I feared the messiness of the project. And I was also, I admit, scared—given my familiarity with some of these men, my reputation as an anti-rape firebrand, and perhaps some narcissistic paranoia—that they might come after me, thinking I had contributed to the list.
I never edited the spreadsheet. I was too conflicted about its ethics and, now a lawyer rather than a radical college student, firm in my desire to avoid any attendant liability. As it turned out, even had I been inclined, my window to do so was short. Hours after I first received the link, it went dead. BuzzFeed had run an article on the list’s existence—a violation of the rules announced at the top of the spreadsheet, but probably inevitable, as the list’s creator later conceded. That woman, Moira Donegan, identified herself months later in a thoughtful essay. (She feared the alternative was that she might be outed by famed rape apologist Katie Roiphe in a forthcoming piece in Harper’s.) Donegan wrote that she had created the list because of the failings, including procedural failings, of the other available options. “Too often, for someone looking to report an incident or to make habitual behavior stop, all the available options are bad ones,” she explained. “The police are notoriously inept at handling sexual-assault cases. Human-resources departments, in offices that have them, are tasked not with protecting employees but with shielding the company from liability—meaning that in the frequent occasion that the offender is a member of management and the victim is not, HR’s priorities lie with the accused.” In other words, those processes were biased. Unfair.
I’m confident about only two things when it comes to the Shitty Media Men list. First, vigilante efforts, whether on bathroom walls or Google spreadsheets, are a dangerous method of accountability for all involved. The risk of false accusations is heightened when all reports are anonymous and there is no mechanism to vet claims. Any attempt to present an alternative account is frustrated by the lack of full detail: How does a truly innocent man defend himself from an accusation when he does not know the who, what, when, or where of it? The risks are also tremendous for the participants. After engaging in campus vigilantism, at least one University of Chicago student suspected of being involved in the website faced online retribution and intimidation. A school administrator reported an Instagram list of alleged harassers to the police—not to investigate the alleged harassment but to identify and punish the account’s managers. Donegan was sued by one of the named men, who sought information about everyone who edited the document. I still fear retaliation from the Shitty men I know.
But the second thing I’m sure of is that those methods are still sometimes the best option available right now. “In the risk-reward calculation of ‘protect myself and my friends from serial rapists in our midst’ versus ‘avail ourselves of processes that are demeaning, biased, and ineffective,’ it’s to be expected that the former will reliably, and recurrently, outweigh the latter, particularly for the young and radical,” my college roommate Kate wrote to me recently. No one, I think, wants to live in a world where the Shitty Media Men list or bathroom scrawling is plausibly a top choice. The obvious solution, then, both to the sexual violence and to the dangers of vigilantism, is to provide a better alternative so victims know they can safely report through more structured paths.
CONVERSATIONS ABOUT PROCESS often make it seem like fair procedures are a concern only for the accused. But victims also need procedural protections and aren’t always provided them. The HR offices that Donegan criticized, which frequently side with management over lower-ranking employees, provide an example of anti-victim structural bias. So does a case from the University of Wisconsin–Madison, which gave a student accused of rape the right to decide who would be on the disciplinary panel judging the allegation. That’s why advocates for survivors, just like advocates for the accused, know a right to a fair process is paramount.
Reviewing lawsuits and stories from both student complainants and accused students, I’ve been struck by how often they ask for many of the same things. A clear explanation of the process and their rights. An advocate to help them navigate the system. The opportunity to present evidence and witnesses, to review what the other side submitted, and to respond. An unbiased decision-maker.
I’m not naively optimistic. Some of the procedural reforms that critics demand genuinely benefit one party and hurt the other. But when it comes to the low-hanging fruit—the basic, foundational elements of fair process—everyone wins. That’s part of why I bristle when critics write about changes in sexual harassment procedures as a swinging “pendulum” or “overcorrection,” as though every gain for one side is a loss for the other.
And this is to say nothing of the importance of fair procedures for victims if they end up facing their own disciplinary charges as a result of their report, like the BYU students suspended for being out after curfew when they were assaulted, or my client suspended for participating in sexual conduct at school—that is, her own rape. Other survivors face bogus counterclaims from their harassers. These are often filed to spook a victim into dropping the original complaint or to style the abuser as the “real” victim, and so protect him from consequences. A 2020 survey by Know Your IX found not only that nearly 10 percent of student survivors faced such retaliatory complaints, but that the practice has become increasingly common over just the last few years.
During my research, I spoke to a few women whose abusers reported them to university officials for sexual misconduct. Grace had been abused by her boyfriend, “Tom,” a classmate. When campus security intervened in an altercation, he claimed victimhood first, much like an abuser who learns to call the cops. Afterward, Grace was subject to strict rules, designed by Tom, about where she could travel on their small campus. When she asked the school to investigate his allegations and reconsider the restrictions, it refused. Another woman, an English professor named Jennifer Doyle, reported a student, “Amelia,” for stalking her. Amelia then filed a convoluted countercomplaint against Doyle, which said the English professor had propositioned her via “Morse code.” Doyle told me she did not fully know the allegations against her until her interview with university administrators. She was cleared, but believes the countercomplaint explains in large part why a hearing panel ultimately dismissed her original stalking complaint against Amelia, even though the school’s initial investigation substantiated Doyle’s account.
Aside from all the other ethical and practical reasons to support proper procedures for those accused of wrongdoing, therefore, fair process is helpful for victims because often they are the accused. Of course, we should work toward a better world where survivors do not risk punishment when they come forward. But as long as the line between complainant and respondent is porous, concern for one requires concern for the other.