| Blog and Media Roundup - Sunday, January 7, 2018; News Roundup | |
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| Tweet Topic Started: Jan 7 2018, 05:49 AM (80 Views) | |
| abb | Jan 7 2018, 05:49 AM Post #1 |
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https://www.vox.com/culture/2018/1/6/16855434/weinstein-reckoning-sexual-harassment-due-process-daphne-merkin-keillor-franken Are men accused of harassment being denied their due process? Or are the victims? When we worry that due process is dead, whose due process are we talking about? By Constance Grady@constancegrady Jan 6, 2018, 11:00am EST On Friday, the New York Times published an op-ed by the writer Daphne Merkin mourning the death of due process as a result of the post-Weinstein reckoning. “The fact that such unwelcome advances persist, and often in the office, is, yes, evidence of sexism and the abusive power of the patriarchy,” she wrote. “But I don’t believe that scattershot, life-destroying denunciations are the way to upend it. In our current climate, to be accused is to be convicted. Due process is nowhere to be found.” That’s an interesting statement, given almost none of the powerful men accused of sexual violence over the course of the past year have been charged with a crime, let alone convicted. Bill Cosby, who faced credible accusations of sexual harassment and rape from more than 50 women, was not convicted after a trial for sexual assault. The late Roger Ailes, who faced credible accusations of sexual assault and harassment from more than 20 women, was never charged with anything, although the FBI is reportedly probing Fox News to determine whether the network should have informed shareholders about the settlements made in Ailes’s harassment lawsuits. The NYPD has announced vague plans to arrest Harvey Weinstein at some point, but has not done so. Neither Kevin Spacey nor Matt Lauer, who Merkin describes as the truly “heinous sorts,” have faced any legal charges for sexual harassment, assault, or rape. And as for Garrison Keillor, Jonathan Schwartz, Ryan Lizza, and Al Franken, four accused men who Merkin holds up as a different kind of alleged predator: None of them have been charged with anything either. They may have been accused, but criminal charges, to say nothing of criminal convictions, are nowhere in sight. So in that case, what due process is missing? Have any of the accused men lost their jobs without investigation? Of course, Merkin may not necessarily be talking about due process in its legal sense. It’s entirely reasonable to read her statement idiomatically, so that “to be accused is to be convicted” means “to be accused is to experience negative consequences.” Likewise, “due process is nowhere to be found” could be interpreted as “these negative consequences are occurring on the basis of an accusation, without an investigation.” It is true that many of the accused men have lost their jobs, which is certainly a negative consequence. But is it accurate to say that they lost their jobs without investigation? Keillor was fired from Minnesota Public Radio following what was reportedly a month-long investigation into “inappropriate behavior.” Schwartz was first suspended and then put on leave following what New York Public Radio describes as “two separate investigations overseen by outside counsel,” which found that Schwartz had “violated our standards for providing an inclusive, appropriate, and respectful work environment.” Lizza was fired from the New Yorker following a review of what the magazine described as “improper sexual conduct,” and has been suspended from CNN pending CNN’s own investigation. Franken resigned from the Senate under pressure from a group of Democratic senators after being accused of sexual misconduct by eight different women. Out of all these cases, the only accused man who did not lose his job following an internal investigation was Franken. Had Franken been subject to an investigation from the Senate Ethics Committee, rather than choosing to resign voluntarily, the investigation would most likely have taken several years and been repeatedly blocked by partisan posturing. It’s also worth noting that, in cases where such investigations have been conducted, the Senate Ethics Committee has not ruled against a sitting senator in more than two decades. But if it were to break tradition to rule in favor of Franken’s accusers and recommend Franken’s expulsion, his accusers would receive a settlement from Treasury funds — meaning that they would have essentially been paying themselves a portion of their settlement out of their tax dollars. Do companies have to wait for a criminal conviction before they fire employees? While it’s unlikely that any of these internal investigations would hold up to the standards of a criminal court, it’s also the case that you don’t need to be convicted in a criminal court to be fired. As Christine Emba wrote for the Washington Post in December, “the Constitution doesn’t oblige NBC to retain Matt Lauer until a court somewhere finds him guilty of a sex crime.” There’s a good reason for the standard of proof to be lower in internal corporate investigations than it is in criminal courts. The US court system has a very high bar for criminal convictions because a criminal conviction should not be inflicted on anyone unless they are found guilty beyond a reasonable doubt. But as the potential consequences of a court decision grow less serious, the standard of proof lowers: In civil court, the standard of proof is a preponderance of evidence, because there’s no possibility of a criminal conviction at stake. In college campus Title IX hearings, where the most consequential thing that can happen is an expulsion, colleges can choose between a standard of a preponderance of evidence or “clear and convincing evidence.” For cases involving sexual violence, these kinds of lower-stakes alternatives are invaluable because sexual violence is very difficult to prove beyond a shadow of a doubt. There are usually few witnesses, physical evidence can be waved away as “she wanted it rough,” and most people are primed to believe the accused rather than the victim — especially when, as in these recent cases, the accused is a powerful and well-liked man. A victim might not have the kind of evidence that would stand up to a criminal court — but she might have enough to register as “a preponderance of evidence” or “clear and convincing evidence.” So the victim can go for a lower-stakes punishment: No one will face jail time, but maybe she won’t have to be on the same campus as her abuser or work in the same office. Is getting fired for cause the same as being convicted without due process? So what has happened to the four men who Merkin specifically holds up as unjustly convicted without due process, these innocent souls sacrificed to the Reckoning? They’ve lost their jobs. Three of them were fired following formal investigations into their behavior; Franken, whose former office does not have a reasonably functioning investigatory arm, voluntarily left following eight separate accusations. While the Keillor, Schwartz, and Lizza investigations may not have been up to the standards of a criminal court, they also didn’t carry the same type of consequences as a criminal court, and as such they required a lower burden of proof. None of these men have been convicted of any crimes. None of them have even been charged with any crimes. But what about the other men affected, the ones Merkin labels as “the heinous sorts”? The ones who face multiple, detailed accusations of rape and sexual assault, with witnesses and corroborating evidence to spare? A few of them have charges pending against them. Fewer of them have been arrested. None of them have been convicted. And in the past, when these kinds of powerful men were accused of sexual violence and made it all the way to trial, almost none of them received jail sentences. Given these facts, is it really the accused men of the Reckoning who have not had due process? Or is it their victims? Correction: An earlier version of this piece stated that the standard of evidence on college campus Title IX cases is “clear and convincing evidence.” In fact, colleges can choose between using a standard of a preponderance of evidence or clear and convincing evidence. |
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| abb | Jan 7 2018, 05:50 AM Post #2 |
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http://www.dailyprincetonian.com/article/2018/01/in-response-to-an-honor-code-fairer-than-title-ix-proceedings Letter from the Editor: In Response to an Honor Code fairer than Title IX proceedings By Sarah Sakha | Jan 6, 2018 Professor Sergio Verdú is teaching a course next semester: Information Theory, ELE 528, despite his being found guilty of sexually harassing his advisee by a University Title IX investigation. He sexually harassed someone. He is still here. And his still being here manifests just why the accused – and the guilty – in cases of sexual assault and harassment adjudicated at the University do not need to be afforded more rights and in fact, privileges, as Allison Berger posits in her first argument of a recent Letter to the Editor. A respondent party has the right of appeal. Rather, the accusers – the victims – need to be afforded more protections, as I have seen firsthand with vulnerable friends and peers on this campus. Berger advocates for a higher standard of evidence in Title IX cases in her third argument, contending the inadequacy of the current standard: “a preponderance of the evidence.” This is one area that Secretary of Education DeVos announced changes in, rescinding Obama-era guidelines for how universities should handle sexual assault accusations. The current standard, as used in all civil cases in the U.S., “gives equal weight to both the complainant and the respondent,” as SHARE wrote in a statement on Title IX in November. Furthermore, SHARE argues, “The clear and convincing standard of evidence requires that the complainant show that something is substantially more likely than not to have occurred. It thus raises the bar for findings of responsibility.” Raising the burden of proof, as Berger suggests, would only make it more difficult for sexual assault cases to be fairly adjudicated, and more difficult for victims to come forward and have their stories be met with credence. It is already difficult enough to do so in a social and political context that makes individuals hesitant to report incidents of sexual misconduct. Berger’s fourth argument brings forth the higher number of committee/panel members required to find the student responsible in an Honor Code violation case as opposed to a sexual assault case. However, she fails to highlight an important, and concerning, disparity: The Honor Committee comprises entirely of students, as laid out in Article 2.3.2 in Rights, Rules, Responsibilities. In stark contrast, the Title IX investigative panel consists of administrators and/or outside investigators, appointed by the Title IX coordinator, as explained in Article 1.3.12 of RRR. Thus, the number of people adjudicating pales in comparison to the background of those adjudicating. The fate of a student should not be entirely placed in the hands of other students, which leads me to my next point. Berger asserts the impartiality and unbiased nature of Honor Committee members in her fifth argument. However, I maintain my reservations in that regard, and have little faith in the current system, as reinforced by the University administration’s recent announcement to roll back overdue reform. Ultimately, I agree with Berger’s overarching argument. Yes, the Honor Code Constitution presents stipulations far stricter than those presented by Title IX regulations, both enumerated in Rights, Rules, Responsibilities. I, as a proponent of Honor Code reform, share the values she writes about: fairness and justice, as do all other proponents of reform. I am not arguing that the panel – or adjudication process – in a Title IX case is completely fair or just. I am arguing that neither system is fair or just. But that is exactly why we need to reform Title IX procedures – and how we approach sexual misconduct allegations overall – to make it more just towards the victims, the survivors. And that is exactly why we need to reform the Honor Code to make it fairer, because “we take using a calculator in an exam more seriously than we take violating Title IX.” These are both causes that proponents of Honor Code reform are, have been, and will continue advocating and fighting for. I will end with a note of caution: Let us not so liberally create parallels between Title IX cases and Honor Code cases, between the offense committed by a student on a final paper or exam with the crime committed by an individual against another. I see the merits for such comparisons, and neither act is victimless. However, the latter causes permanent harm, and for that reason, I see it as highly unfair – and atrocious – to even begin to compare going overtime on an exam or using a prohibited calculator with sexually violating another human being. Sarah Sakha is Editor-in-Chief of The Daily Princetonian. This letter represents the views of the Editor-in-Chief only; she can be reached at eic@dailyprincetonian.com. Edited by abb, Jan 7 2018, 05:51 AM.
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