I wrote earlier in this book that I wish I could offer a perfect blueprint for a perfectly fair set of procedures that could be used in every context—prefab due process, if you will. But I hope that by this point, a reader understands why there can be no single solution that fits all situations, either ethically or legally. That’s frustrating, but it is also right.
So I offered, instead, some essential fundamentals of a fair process where serious sanctions are on the line, which each institution and community will need to build on according to its resources, capacities, and values. They are worth reiterating here: Rules governing members’ conduct should be clear and understandable. A harmed person should have the opportunity to lodge a complaint, and the other person should be informed of the details of the allegation. Both people should be told how the process will work and, if possible, assigned someone to help them navigate it. Each should be given the opportunity, with sufficient time, to present their side of the story and any supporting evidence, including witnesses. Both sides should be able to review the other’s relevant evidence and rebut the account the other side gave. As part of that, they should both have the opportunity to present questions to the other, to solicit answers that might undermine the other’s story. The complainant, not the accused, should bear the burden of proving the allegation. A conclusion should be made by unbiased decision-makers, who should explain their decision to the parties. Whenever possible, a party unsatisfied with the result should be able to appeal a decision where a procedural flaw has occurred or the result is not supported by evidence.
There are also many pieces of the fairness puzzle that go beyond issues of process. Definitions of sexual harassment should be neither under- nor over-inclusive. Supportive services should be available for victims who do not want to pursue any sort of investigation and punishment against their assailant. And any sanction should be proportional to the harm. These are vital considerations, but they go beyond the scope of this book.
Institutions and communities will have to make many decisions about how to give shape to these basic commitments and rights. There are three overall principles that I think should guide these efforts: end exceptionalism, use the civil rights lens, and promote transparency. I also have two recommendations specific to advocates fighting against sexual harassment: be open-minded but careful, and expand the frame.
END AN EXCEPTIONAL APPROACH TO ALLEGATIONS OF SEXUAL HARM
Unsurprisingly, I think the most important lesson for sexual harassment policies is to de-exceptionalize. As I’ve already said countless times, the problem of adjudicating allegations of sex-based harm is much less daunting when we realize that we investigate wrongdoing outside courts all the time. And we already have models in place. The question we must constantly ask ourselves is: “How would I feel about this if we were not talking about sex?” Substitute in all the other ways workers, students, and friends hurt each other. What if we were talking about a fistfight? What if we were talking about an ethnic slur? Would this particular process seem fair then?
For those with the power to draft procedures, from CEOs to my sci-fi-loving brother, my central recommendation is to address sexual harassment through the same disciplinary process as other forms of comparable misconduct. I like an approach similar to that adopted by some schools, which I mentioned earlier, in which there is one disciplinary system for all violations “against the school,” and a second for all allegations that one student has hurt another. The first process applies to offenses like vandalism or plagiarism, where the “victim” is not another student but the school itself. In those cases, the school can afford to tilt the scales a bit to benefit the accused—for example, by requiring clear and convincing evidence of wrongdoing. After all, no one else’s education is at stake. The second process, in contrast, would involve complaints where two students’ abilities to learn and participate in campus life are threatened. That would encompass sexual harassment, yes, but also harassment on the basis of race, religion, or disability. It would include a student accused of bullying a classmate, hazing a freshman pledging a frat, or assaulting a teammate at soccer practice. Here, the school should give equal consideration to both students.
At the very least, I feel strongly that sexual harassment allegations should be handled by the same process as other civil rights issues, such as race- and disability-based discrimination. This first step might be more accessible to under-resourced institutions that feel they must prioritize where to devote limited resources. So, for example, they might decide to start by assigning support staff to both sides of all discrimination allegations. The goal would be to eventually provide that service to everyone involved in an interpersonal dispute, related to civil rights or not. Not my favorite option—there is still a whiff of exceptionalism—but a place to start.
It may sometimes be hard for anti-harassment advocates to avoid encouraging exceptionalism. If you push to reform a system that fails survivors, you might end up with a whole new, separate process just for sexual harms, which is bound to attract criticism. What is an activist to do, then? My best recommendation is that organizers should push institutions to improve how they handle all allegations, so that sexual harassment reports can be treated sensitively without any kind of separate, siloed process. That will, I am sure, be a complicated message for advocates to convey. But I suspect it will be worth it in the long haul.
The work of de-exceptionalizing will require feminists to be more thoughtful about how our own policy proposals have not only maintained but exacerbated the problem. A few years back, a group of advocates championed proposals to add a special notation to the transcripts of students found responsible for sexual assault. The basic idea was that someone deemed too dangerous to remain in his own community should not be allowed to transfer to another without any warning. Notations, the logic went, would allow the other school to decide whether or not to admit that student based on full information, and to put protections in place for others if they did.
That reasoning makes sense to me. So do countervailing arguments about allowing wrongdoers to improve themselves and make amends without being haunted by a record of their past mistakes, however severe. Personally, I think the latter outweighs the former. But regardless of how one ranks those two sets of concerns, the whole debate again raises the question: Are the benefits from singling out sexual assault for extra punishment worth the costs of exceptionalizing it? At least one court has concluded that schools must use a standard higher than the preponderance of the evidence if they will impose transcript notations, though it later backtracked and reversed its own holding. Whether that court was right the first time or second time, transcript notations invite exceptional procedures: add extra punishment, and you risk having to put in extra process. Transcript notation policies would then make it harder for a victim to prove her case—and, as a result, to secure the support and protections she needs. Students would receive the message that accusations of sexual assault demand extra care and extra suspicion. Is that worth whatever benefits a transcription notation might bring? I think not.
USE THE CIVIL RIGHTS LENS
A key to resisting exceptionalism is retaining a civil rights lens on sexual harassment. Some of that work will be done by sharing the long history of feminist resistance to sexual harassment as a form of discrimination, a threat to equality and freedom. Central to that must be highlighting the anti-rape work done by the mid-twentieth-century Black civil rights movement.
But there are also other ways to ensure that we maintain a civil rights perspective. One is to use accurate language to describe internal processes, rather than importing a criminal law vocabulary. In describing workplace or school discipline, we should talk about “disciplinary investigations” and “hearings,” not “rape trials.” In describing people accused of sexual harassment through these processes, we should talk about “respondents” or “the accused,” not “defendants.” If the claim is substantiated, the accused has been “found responsible,” not “convicted.” Using the right words helps us remember the institutional context, instead of slipping into associations with criminal law and the courtroom. With an ear out for those subtle differences, it becomes clear how often critics who demand exceptional procedures for sexual harassment use criminal terminology. Perhaps they don’t know better. Perhaps they do, and use incorrect terms because that subtle appeal to criminal standards helps their demands go down easier. Either way, we should resist those mistakes and correct our own.
The civil rights lens also demands that we pay attention to where the burden of procedural reforms falls. Throughout this book, I’ve drawn a distinction between two types of procedural protections. One type helps both parties, and the cost of adding that particular feature is borne by the institution. Examples include providing free legal counseling, offering clear explanations of what rights each party has throughout the process, and giving everyone involved access to the evidence. The second type of protection helps just one party, and the cost is borne by the opposing side. The most obvious example is increasing the standard of evidence, which helps the accused but hurts the complainant.
Maintaining a civil rights lens means keeping the rights of both parties in mind and extending fairness to both. Following from that commitment, procedural reforms of the first kind are a better fit with the equality principles that should motivate institutional responses to sexual harassment. The second kind of reforms—those that tilt the scales against one side—fit instead with a criminal law approach, in which the complainant’s needs and future are invisible. We can do better than that.
PROMOTE TRANSPARENCY
We have only just begun trying to address sexual harms in our institutions. News articles talk about Me Too as though workplaces only discovered in 2017 that sexual harassment might be a problem. And it’s telling how often mainstream media declared that the 2011 Dear Colleague Letter was the first time federal law required schools to address sexual assault, even though that requirement was decades old. Before that point, few schools were even trying to fulfill their Title IX responsibilities—no wonder the public thought those responsibilities were new. As sexual abuses and the institutional failures that follow them fill the news, many institutions of all kinds are only now recognizing their legal and ethical duty to develop anti-harassment policies. For too many, the project is new. We will get things wrong. We have a responsibility to get them right.
One of the most powerful tools for crafting smarter policies and fixing their flaws will be transparency. Community members should have an opportunity to provide input for any new procedures. Doing so will allow drafters to solicit good ideas, identify pitfalls, and secure buy-in. In contrast, closed-door policy drafting loses out on helpful suggestions and sows mistrust. Part of what frustrated the Harvard Law professors who wrote to the Boston Globe is that they never had the chance to help shape the policy that would govern their school; instead, a new sexual harassment plan was imposed from on high. Given an opportunity to consult, they may have been able to shape the policy for the better, and they also might have felt more comfortable with the result.
Once a process is in place, the institution should share as much information as it safely can about how the process is working. What kind of reports are coming in? What kind of results are coming out? What seems to determine the severity of sanctions doled out—is it the severity of misconduct, or is it the race of the complainant or accused? To protect the privacy of individuals, groups can release anonymized data along with case studies stripped of identifying details. Such a report might provide a few examples that describe the complaint, its outcome, and any reasoning in broad strokes. For example: “A worker reported that his boss verbally harassed him over the course of many months. He did not want to pursue a formal complaint. HR transferred the worker to a different shift and explained to the boss why the alleged conduct, if true, was inappropriate.” Or: “A congregant reported that another member sexually assaulted her. The committee investigated and determined the assault had occurred. Because of the gravity of the harm, the offender is no longer permitted to attend congregation events, though he may continue to seek spiritual guidance from the rabbi. If he successfully engages in our restorative justice process, his membership will be reassessed in two years.” (If a group is so small that even anonymized case studies and statistics risk identifying individuals, they can be aggregated over a number of years.)
Part of why I like case studies is that they give community members insight into what happens within the black box. If they don’t like what they see, they can advocate for change. And if it’s good, the explanations can become a kind of precedent, guiding decision-makers in the future to ensure consistency. I’ve seen this work in practice. As a result of its settlement of our Title IX complaint with the Department of Education, my alma mater now releases regular reports summarizing the kinds of sexual harassment reports received and how they were resolved. That anonymized overview gives the community a sense for how the process is working—and the chance to protest if it’s not. Of course, I would be happier if the reports summarized all student discipline, rather than separating out sexual harms. But it’s a start.
Transparency is also crucial for rooting out discrimination against both complainants and respondents. One of the most powerful tools for advocates fighting discriminatory student discipline has been the federal government’s regular collection of data from K-12 schools about the racial breakdown of suspensions and expulsions. Those schools are legally required to tally who is getting punished for what, and turn over that information so the government can calculate whether students of color are disproportionately punished. In my experience working on this issue, that data has been one of the best ways to convince legislators and school district policymakers that they have a problem they need to fix, and fast.
For the same reason, all organizations should collect and publish anonymized data about the outcomes of all disciplinary proceedings—including but not limited to those for sexual harassment. Those numbers should reflect key demographic trends in who is reporting misconduct, whose reports the organization decides are founded, and who is punished. Crucially, this data must be shared with the community. That way, workers may discover, for example, that their Black colleagues are more likely to be disciplined for harassment—and also that Black colleagues who report harassment are less likely to be believed. And they can use that information to push their employer to do better, through public exposure, protests, strikes, or other tactics.
BE OPEN-MINDED, BUT CAREFUL OF BAD-FAITH ACTORS
Some of the most important but uncomfortable work of building common ground is listening—including listening to those on the “other side.” I do not mean that we have to read every speech by militant anti-feminists. I certainly do not believe that survivors must talk to accused rapists in order to be good advocates. But to the extent we are able to do so, a little listening can usefully inform our work. Something a man accused of sexual assault said has stuck with me. He supports Me Too, though with some caveats, and has no interest in the men’s rights movement. But the men’s rights activists, he told me, are the only ones who want to hear his story.
For my part, before I started writing this book, I had only once spoken with someone about their experience of being accused of sexual harassment. When I undertook interviews with the accused for this project, they were often difficult for me. I felt empathy, talking directly to people whose lives had been disrupted by what nearly all of them insisted were false allegations. I was also wary of “himpathy,” and afraid of being manipulated by an abuser eager to style himself as a victim. On some occasions I learned through fact-checking that I had been lied to, and felt foolish. And yet, I still feel very grateful for what I learned from those conversations. I do not think I could have written this book without them. Through those stories, I gained a sense for the human experience on the other side of an allegation: how their lives had changed, how bad procedures made them feel powerless and small. And I learned, in some slight way, what it feels like to care about someone accused of sexual harassment. I feel moved that people with no real reason to trust me did so anyway.
I’m also very grateful for the lawyers and advocates for the accused who, over the years, have been willing to hash out hard questions, especially where we have created room to express uncertainty. Even if we approached the issues with different priorities and experiences, we could often agree on concrete policies.
This wasn’t true all the time, though. Sometimes, trying to establish common ground only served to illuminate how little there was. Sometimes, it just showed an advocate for who he was: a misogynist deeply invested in men’s impunity. I think of one man who, in a discussion about standards of evidence, put his cards on the table: he thought that in every single case it was best to avoid a finding of responsibility. Well then.
That some bad actors, like that guy or Earl Ehrhart, seek some of the same reforms we do doesn’t mean that all our efforts are tainted by the transitive property of misogyny. But it should give us some pause when misogynists or racists or bigots of any kind think we’re right. A former professor of mine once told me that having strange bedfellows sometimes means that we are discerning, unconventional thinkers—and sometimes it just means we are wrong. Finding ourselves on the same team as people with values not only different from but diametrically opposed to our own requires us to do a little soul-searching to make sure the position we’re taking really is consistent with our commitments.
Caution is particularly important here because the approval of the bad boys is often so seductive. That may sound callous and flippant. But many women advocates I have met take a certain pride in the fact that anti-feminist men think they are onto something, as though that strange endorsement speaks to a certain heterodox intellect. In writing this book, I’ve had to resist that same siren call to be “one of the boys,” the temptation to distort my own commitments to win over those critics whose approval I’m least likely to receive.
Even when we’re confident we’re in the right, we have to remain aware of all the ways that concern about treatment of the accused can be co-opted by men’s rights activists and others whose main aim is to stop progress on sexual harassment. Agreeing with people who usually disagree with us might be an opportunity for a powerful alliance that can shift political winds. But it also might be an opportunity for fringe figures to leverage our relationship in a bid for legitimacy. Consider again how many times men’s rights activists and Trump’s Department of Education pointed to the Harvard Law professors as evidence that their own right-wing agendas were valid. That, in and of itself, is not the professors’ fault. But if they had foreseen that dynamic, they could have taken efforts to highlight the important difference between their campaign and that of the MRAs: the professors took issue with specific parts of Harvard’s new policy, but the men’s rights activists thought the whole project of addressing sexual harms was rotten to the core. At the very least, we all have a responsibility, in undertaking this work, to defend against co-optation by bad actors.
EXPAND THE FRAME
I’ve tried to acknowledge, throughout this book, the number of people—both victims and accused—who are currently left out of these conversations. We have plenty of work to do to improve institutions’ internal procedures for sexual harassment reports. But a great hope of mine is that conversations about fair process in the context of sexual harassment may lead to an expansion of fair process for other harms, too.
That is one of the benefits of de-exceptionalizing. If we are angry about the treatment of men accused of sexual assault, let’s spread some of that concern around to people facing institutional sanctions for other kinds of misconduct. Students suspended for fighting and employees fired for stealing are just as worthy of our concern. Creating better disciplinary systems to handle a wide range of complaints should, ultimately, serve as a rising tide that lifts all boats. I have faith that we may well see these victories in schools, already a target for disciplinary reform, and in less formal communities.
The workplace, I expect, will be a harder fight, because most employees are utterly without legal protection. The default for workers is that they can be fired for almost any reason, at any time, with no process. Also, the typical American workplace is fundamentally undemocratic: employees rarely have any say in how their company runs. To win meaningful procedural rights for workers would require first convincing management or legislators that they deserve any rights at all. The good news is that there are proven models to change this dynamic. States can outlaw at-will employment, for instance, as Montana has done. And, of course, workers can—and should—unionize.
We also need to extend protection to more victims, which requires expanding the civil rights laws that are already on the books. Laws against sexual harassment in the workplace, like Title VII, leave out many workers. Employees of small businesses are excluded from Title VII, as are “independent contractors,” workers without the stability and formal legal status of employees. In 2019, Democratic legislators introduced a federal bill, the BE HEARD Act, that would close these loopholes. On the state level, domestic worker groups have successfully pushed for greater labor protections, including provisions that would allow them to make complaints to a civil rights commission, not just the police, when they face abuses at work—work that generally occurs in their clients’ homes, leaving them isolated and particularly vulnerable. Contract workers—traditionally excluded from laws that protect full employees—have similarly fought, and in some states won, inclusion in existing antidiscrimination protections.
Harder but just as crucial is figuring out how to create alternative remedies for those who live within systems like prisons, immigration detention, and the military, where the line between internal discipline and criminal law is hard to maintain, if it exists at all. That is a task beyond my expertise and the limits of my legal imagination. But I am eager to follow the lead of those with deeper knowledge on the subject.
Congress might also revisit the most ambitious civil rights response to sexual abuses it ever passed: the private right of action included in the Violence Against Women Act of 1994, which allowed survivors to directly sue their assailants in federal court without some of the usual obstacles of civil litigation—at least until 2000, when it was struck down. In addition to its practical benefits, the civil rights remedy also served as a powerful recognition of sexual harms as an issue of equality. As feminist lawyer and scholar Julie Goldscheid later noted, the provision “sought to transform the terms of debate in which violence against women was framed, to bring public attention to its severity and impact, and to counter the historic subordination violence against women both reflects and perpetuates.”
As the law’s drafters had anticipated, men who were sued under the civil rights remedy challenged its constitutionality, arguing that Congress lacked the authority to pass the law because the matter should have been handled by the individual states. Goldscheid worked as part of a team of lawyers who defended the provision from legal challenges, eventually arguing before the Supreme Court. They drew on congressional fact-finding to demonstrate the national impact of violence against women. But a majority was not convinced: five justices voted to strike down VAWA’s private right of action. In an opinion written by Chief Justice Rehnquist, who had criticized VAWA before it was even passed, the court ruled that gender violence did not have a sufficient impact on the national economy to justify federal intervention.
Perhaps Congress is up for trying again. Me Too has provided a whole new perspective on the impact of sexual violence on survivors’ economic opportunities—one that has shifted public opinion and could make for persuasive evidence before the Supreme Court. Perhaps Brett Kavanaugh would not want to solidify his reputation by casting a vote against a key provision of the Violence Against Women Act. Or perhaps that hope is terribly naïve.
I’M NOT USED to being the optimist in the room. My life as a lawyer and my previous work as an organizer revolve around the many ways schools fail students. Yet despite all that, and despite all the messy public debate about harassment and due process, I believe it is possible for institutions to do right by their people. Putting together this book was often depressing. There are so few success stories. But there are some—small proofs of possibility. And I believe that with many more years of hard work in good faith, we will resolve the easy questions and come closer to answering the hardest ones. That change will come in part from law, but mostly from protest and storytelling. We can do it. More importantly, we have no choice but to try.
My purpose in writing this book wasn’t to provide a perfect road map toward fairness and justice, though of course I hope the principles I’ve laid out will be useful along the way. My goal, instead, was more modest: to open up the opportunity for more productive conversations about fairness and sexual harassment—in opinion pages, in classrooms and boardrooms and union halls, across dinner tables. If I’ve managed to convince a reader of anything, I hope I’ve demonstrated that commitment to justice and safety for victims of sexual harassment and commitment to the fair treatment of people accused of these same harms are not mutually exclusive. Rather, they’re deeply interdependent. That’s true as a practical matter: success on one axis will not be possible without the other. And, fundamentally, both sets of concerns are, at their best, motivated by shared values of equality, dignity, opportunity, and freedom. If we remain vigilant, if we continue to examine our own internal biases, if we resist co-optation by those hostile to our shared principles, we can get it right.
Now, let’s get to work.