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.
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.
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).
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.
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.