The Transformation of Sexual-Harassment Law Will Be Double-Faced
newyorker.com
newyorker.com
Asking the employer/school to handle it is a recipe for injustice. Their interest is to limit their liability and favor their most useful employees, in that order. Justice is a distant concern.
If you're falsely accused, do you want to have to spend $10,000 to defend yourself?
If you're harassed, do you want to have to spend $10,000 to accuse the perpetrator?
That's why it should be handled in court only as the last resort.
Versus losing your ability to receive higher education or an income in your industry (or period?). Seems like a real no-brainer choice to make there.
Why not courts? Courts are constitutionally required to have a higher standard of evidence than other institutions. In the usual case where a rape has absolutely occurred, the evidence often amounts to he-said/she-said. That's rarely enough for a conviction. That's understandably deeply dispiriting to anti-rape activists, so they move activism toward places that can afford lower evidentiary standards.
Is that the right way? Who knows. But I think it may be best to treat sexual assault as an epidemiological problem. That's hard to swallow--after all, rapists are bad people and deserve severe punishment, not dry statistical treatments. But given how hard it is to "fairly" prosecute rape, treating programs to end sexual assault as interventions to decrease incidence and then measuring how effective they are seems like it may be more productive in the long term.
This is a really interesting idea. But how would you confirm sexual assault. Are you saying that “innocent until proven guilty” should be revised?
What other crimes do you think this should apply?
As a thought experiment, you can imagine a world where courts are required to give instructions to the jury, telling them that they must always treat an alleged victim's testimony as a 100% accurate representation of the incident. That would make most sexual assault cases slam dunk. And it'd result in more guilty rapists being convicted, and very likely more of them than the number of innocent people falsely accused of rape.
Is that an appropriate use of institutions of justice? I don't think so. And it wouldn't be sustainable, as it'd weaponize accusations in a way that they're not now: you'd rapidly see people abusing it, and see a huge backlash.
But there's not an alternative justice-wise to that, which is why attentions are turned to other institutions that can only offer a slap on the wrist, but a slap on the wrist that can be based on very little evidence. No one is really happy with that reality, but no one has any better ideas.
That's why an epidemiological approach--running tests on everything from lights, to educational programs, to banning hard alcohol at school or work sponsored events--seems like the best way out of this hole to me.
The problem is the methods that are most likely to be effective are considered victim blaming.
E.g. Teaching women how to directly and clearly say no.
Or making it socially inappropriate to get blind drunk.
Etc etc.
For example, educational programs sound as a rational idea until you look at older studies that looked at the effect of increasing the punishment for crime. As I recall there were no effect for most form of violence, including sexual violence, with the researchers conclusion that much crime don't follow rational planning. If the criminal don't do a risk vs reward analysis before the crime, then increasing the punishment won't have an effect on the thought processes. Similar education and work sponsored events is unlikely to help if the action is irrational and involve a lot of self-delusions.
I can see how mores lights and banning hard alcohol can work. People have a emotional reaction to light, and drugs/alcohol operate on the part of the brain that handles social interaction and inhibitions.
There are lots of individual torts and crimes which employer or school failure to prevent or respond to creates tort liability for the institution in the same manner as sexual harassment and which therefore employers and schools practically must deal with through both prevention and responsive policies that do not wait on the legal system. For one large class, pretty much all acts of violence fall into this category.
I know someone that was accused of rape years ago in school. Expelled, lost scholarships, reputation ruined. All from some 'arbitration board' with no trial. Thing was, the girl was a frequent liar and had a grudge against him for kindling a relationship then going off to date someone else. The group of friends connected to her, me included, all knew that. This guy was not the shady or violent type at all. He had never even been to court before that.
My friend even claims he was with him that night but since we lived in the same building he had no proof.
None of that mattered, they decided that he 'might be guilty' on her word and proceeded to ruin his life. The exact thing courts were created to prevent, arbitrary justice with no laws and a low standard of evidence.
Maybe we need a simpler solution. Cameras in all public areas of student housing would catch a much larger proportion of rape. But no, that's too simple, we need to change the laws so it's possible to get your life fucked on someone else's word
Thank you for saying it properly and so concisely.
And do we really want a society where everything is recorded? Just think of the abuse potential from camera operators.
> usual case
> rape has absolutely occurred
> evidence often amounts to he-said/she-said
I read "absolutely" in this to exclude cases where the question is not one of facts, but of definitions. Eg. if the victim was somewhat intoxicated, both sides can agree exactly on the facts of what occurred, but disagree if the victims consent was valid.
The biggest problem with them is that roughly half of them go untested. When they are tested, however, they're actually incredibly good at the successful prosecution and conviction of sexual assault cases.
(Unrelated note, in writing this comment, I tried looking for relevant statistics; but found I have no idea what to even search for. Anyone have anything?)
They have much less access to media firestorms, large cash settlements, and other protective measures than high prestige jobs.
As long as they follow a defined process in each case, private organizations can generally adjudicate disputes internally. Because the limit of what they can do is expell or fire you, the stakes are lower and so is the burden of proof compared to what is needed for a criminal conviction.
Employers and schools are at the center because sexual harassment is sex discrimination in employment or education, and thus rightfully creates liability for the employer and school under anti-discrimination laws.
The individual acts by which that discrimination is carried out may also be crimes or torts, aside from being a component of institutionalized discrimination, and when they are, that is absolutely addressable in legal action between the parties (for torts) or between the State and the criminal aggressor (for crimes).
[1] https://en.wikipedia.org/wiki/Struggle_session [2] https://www.washingtonpost.com/news/worldviews/wp/2013/10/03...
Improving how the criminal justice system handles such crimes would be a big help, but it's a monumental task.
Are they? Or are most sexual assault cases incredibly messy and unclear?
I do mean it as an honest question - is there evidence of widespread police indifference to rape?
I'd like to know how often getting a rape kit done leads to a criminal conviction. Does it double the likelihood?
It turns out in certain parts of the country there are a lot of serial rapists.
So now we have realised it is worthwhile and we are spending tens of millions to make sure we go through the backlog of rape kits to detect serial rapists.
Now that there is money budgeted to do the work the police and courts are following through.
That doesn't show police/court indifference or hostility at all.
Both are bad, one is worse.
It may be that the former is civil while the latter is criminal.
Similarly in cases of violence, from battery to murder, has by coincident also a total of 9% clearing rate.
In both, the main argument why its so low is neither hostility or indifference. What is cited is the lack of evidence where most of the time investigations only have words against words. It is really hard to determine who punched and who defended themselves outside a bar if there is no witnesses. Both the accused and defendant admit to be in the fight, and there is medical records to that, but details like who made the first punch is unclear. Similarly, its hard to prove the punishable part when two people have sex and both agree that it happened but one say they did not consent. Medical examination can prove the intercourse but rarely much more.
Technically the court can choose who they want to believe purely based on oral statements, but as a matter of practice they tend to not make such decisions. When courts still do it they tend to get overruled later on. It is not clear how you can improve criminal justice system to get anything above 10%, and 1 out of 10 cases is so little that victims will never feel like the legal system is working.
The only way I can think of that would actually fix society so that we can reasonable expect cases of violence and sexual violence to be solved is if surveillance became 100% in every bed room and every corner of society. Its a hefty price to pay for holding all criminals accountable for their action.
What if it is zero sum, or at least, approaching that? There are two phenomena going on that make me contemplate this; double income household normalization, and a somewhat sticky total # of jobs. As women further enter the workforce, the mean household income will trend towards double income, and the labor pool will be contested with more applicants, in both cases rendering a male applicant at a substantial disadvantage (comparatively to history).
The way one could rebut this would be to suggest that this inflation hasn't taken place, and that the total # of jobs has scaled accordingly.
A brief search hasn't turned up anything on my end, so don't take this musing as any more than posing questions. My pessimism lends me to think that the conflict I summarized above will be a rallying call for certain groups on both sides of the fold for many years to come; recent political discourse does not lend me hope for a broad view of "togetherness".
As for "a brief search": I literally went to Google, typed "number of jobs" with the first suggestion being "number of jobs in us by year". The very first link has the answer.
May I suggest that when you ask inflammatory question, you invest a tiny bit more in research? Otherwise, one could come to the conclusion that maybe you're more interested in the inflammatory than in the thought part.
I'm sure that's not what you intend. But if you care about "togetherness" in political discourse, it's imperative to temper inflammatory requests with more than an absolutely cursory search for facts.
That being said, I'd try and better make my main point: As a sister post states, there's the intuitive fact that remedying discrimination is by definition going to cause the previously elevated party to lose that. This is the core of what I was trying to get at; that I'm not sure "it's not a zero sum game" is going to convince people who focus on this aspect of it. Maybe there's an argument that you don't need to/can't convince someone that opposed, but that's the heart of my pessimism about the aformentioned togetherness.
(Another sister post made the explanation of the lump of labor fallacy, which I had learned at one point and unfortunately forgotten as it far better responds to the hypothetical I posed)
[0]https://dqydj.com/the-male-female-unemployment-gap/ (Ignoring the writing, the data is from stlousifed)
> there's the intuitive fact that remedying discrimination is by definition going to cause the previously elevated party to lose that
I think it's more than an intuitive fact. There's at least one study I can think of - "Gender Quotas and the Crisis of the Mediocre Man"[1]. And it seems to support the idea that there's a loss, at least in the short term, for the previously elevated party.
I still don't think it's a zero-sum game in the long term. But that is at the core of the problem - people feel threatened now, they don't always care that in the long run, things might turn out well.
Which prompted me to write my reply in the first place - anything that reinforces the notion of a zero-sum game is incredibly toxic to resolving this issue. And even if we'd all be at our most level-headed selves, it's a rather hard issue to solve.
(It's worth noting that we're off on quite a tangent. None of the above really relates to sexual harassment that much. That is an abuse of power. While I'm an avowed feminist, I'm not convinced that simply having more equality in the work force will solve the issue of harassment. That likely requires a huge cultural shift to our basic mode of thinking)
[1] http://perseus.iies.su.se/~tpers/papers/Draft170122AER.pdf
The reduction of inequalities tends to have this sort of effect on those who benefitted from inequality, more or less by definition. I will go along with your stated intention of wanting to provoke thought by saying that I think it is a bogus argument against equality, that ignores the unjustifiable harm done by discrimination. Furthermore, by itself, it does not establish the 'zero sum' part of 'zero sum game'.
BTW, grammatically speaking, the 'it' in the question you pose appears to refer to the 'sexual harassment' of the title, but your comment seems to be about something else altogether.
Isn't this the lump of labor fallacy [1]?
I think the economic theory leads to a different description: As more women enter the workforce, the aggregate income goes up. Some of it is spent and becomes someone else's income. Some of it is saved in a bank which loans it out or invests it. The receiving business then spends it and once again the money becomes someone else's income.
IOW, as more people work, both aggregate demand and aggregate income rise. The economy shifts into a higher gear.
I’ve worked for large institutions that have been performing the same work for decades and I’m familiar with their employment statistics. By any measure, they are using fewer person-hours of labor annually. About 40% less since 1997, about 60% less than 1987. One subdivision in particular replaced about 3,000 workers with 50 IT guys and about $10M in annual IT spend circa 1995. Those labor costs are held in check by a constant stream of cheap contractors.
Large institutions that have been performing the same work for decades do not fully represent the economy as a whole.
The article and post that I replied to talked about aggregate income, which isn’t the same as demand. Aggregate income is a particularly weasel-ly and misleading stat, as wages across the board have been falling in real terms, and usually excludes the people out of the labor force. When you eliminate midrange and low end jobs, and don’t include the people making $0 in the average, the average goes up.
Even in tech, specific verticals are in high demand. Once things get stable, the relentless pressure of offshoring and *aaS deflates labor value.
There's no way to allow power to women without giving up power over women, so control of women's agency and options has to be zero-sum.
That doesn't make any sense at all.
Men and women are, in western society, naturally aligned and both genders as a whole want what is best for everyone.
Without an idea of "we're all in this together" from what would I derive motivation towards the just? Or even a definition of justice?
(Just in case we're having some miscommunication around different readings of the phrase, where one describes an "is" and different "ought": I see the phrase "all in this together" to refer to our shared inescapable subjection to the consequences of society. Although I can envision a reading that takes it as some assertion we're all equivalently culpable for steering. Unless you really want to get into the semantics, I'll stop typing and leave it at the point I see the former definition used in the parent post.)
A minor derail: In fact checking this, I learned that because sexual harassment is federally treated as a violation of Title VII of the Civil Rights Act, which forbids discrimination on the basis of sex, it is a defense if you bisexually harass people.
https://www.natlawreview.com/article/trouble-so-called-equal...
It's good that the legal system has found a way to shoehorn a fairly effective discouragement of a vile and destructive societal tendency out of a law which was not intended for the purpose. (I also learned that the CRA amendment prohibiting discrimination against sex was added at the last moment, as a poison pill, in the hope that doing so would make the bill untenable.) I think the country would probably benefit from dedicated sexual harassment laws, though. The current situation is pretty ethically incoherent.
That's the author's imperative.
#metoo has three imperatives:
1. A smoke signal to communicate across long distances and allege abuse against powerful serial abusers more quickly than those alleged serial abusers can use their power to divide and conquer the allegations.
2. It is a shared statement by victims of sexual abuse (including male victims) that investigations of people who hold power inside institutions have been anything but fair and impartial.
3. It is a day of reckoning for the people who have enabled the serial abusers, in a desperate attempt to create a minimally workable environment where people can try to have careers without having their genitals grabbed, their spirit broken, and their faith in institutions shaken.
The imperative the author erroneously attributes to #metoo is certainly important, and related. But it's different, and it seems like #metoo is merely shoe-horned to make the article more relevant. (Does anyone think the definition of sexual harassment wasn't already being broadened before #metoo?)
It's unfortunate, too, because I'd love to know how both Title IX and Title VII are impacted by students' growing ability and proclivity to accumulate allegations over social media against serial abusers. What does a college's "honor court" or whatever do when it's not victim vs. accused but instead multiple victims across different classes and campus locations vs. one accused?
I'm sure there would be lots of issues around this that I haven't thought through yet, but it would certainly solve the evidence problem. Indeed, I would expect the mere existence of the policy to put a major damper on misbehavior.
Your concern is very reasonable, but that's why I didn't suggest just blanketing the office with surveillance cameras.
The ideal situation is that both parties get immediate copies of the recordings. That way neither gets the ability to cherry pick of censor.
It’s not necessary either. The downside of capturing everything is that you capture everything. The employee ends up getting canned for claiming a 30 minute lunch when she was gone for 40. A good, factual journal is the best weapon in most cases.
This is an important point, and I think it represents a tremendous victory.