No decent person will shed a tear for a guy who is guilty of sexually molesting or raping a woman. When the man admits he did it, whether it happened yesterday or 20 years ago, we can take comfort in knowing the allegation is true, provided he didn’t fudge the confession because his publicist told him that was the smart way to cop a plea.
But the wave of feelz has a way of catching decent guys who should know better. At the Atlantic, Conor Friedersdorf caught the wave.
A scholarly article published in 2012 by Ian Ayres and Cait Unkovic defined the challenge: Many are reluctant to be the first person to accuse someone of sexual harassment, in part because the accused “routinely responds by trying to impeach the credibility of the accuser.” Yet first accusations often lead to more accusers coming forward. That’s a dynamic that tends to protect recidivist harassers.
There’s a cute little trick in that paragraph, denigrating the defense of “trying to impeach the credibility of the accuser.” If an innocent person is accused, what else would he do? Casting this as some rhetorical negative is nonsense. When a person lies about the commission of an offense, there are two basic options: prove the negative or impeach the liar’s credibility to show they’re lying. This is a bad thing?
But also buried in the paragraph, and glossed over, is another problem: “Many are reluctant to be the first person to accuse someone of sexual harassment.” So what? Is the solution to many’s reluctance to gerry-rig the rules of engagement, or tell them to stop being reluctant and deal with it? Rather than require feelings to conform to a system that allows for a rational determination, is the solution to reshape the system to conform to the fragile feelings of the reluctant victim?
Apparently, that’s exactly what Conor suggests, under the cool new name of “information escrow.”
What if a system of “information escrow” existed instead?
We propose the use of an allegation escrow to allow victims to transmit claims information to a trusted intermediary, a centralized escrow agent, who forwards the information to proper authorities if (and only if) certain prespecified conditions are met. The escrow agent would keep harassment allegations confidential, unutilized, and unforwarded until the agent has received a prespecified number of complementary harassment allegations concerning the same accused harasser. For example, if the escrow agreement specified the accumulation of two additional allegations as a triggering event, then the agent would wait until the escrow had received three separate allegations concerning a particular alleged harasser before forwarding the information to specified authorities and initiating a complaint.
Unsurprisingly, this idea has already made its way to college campuses for Title IX complaints.
A variation on that idea is already being used by the nonprofit organization Callisto, a third-party reporting system for victims of sexual assault on college campuses.
The safety-in-numbers approach is a particularly problematic one. Mattress Girl had a couple of her friends lodge false complaints against Paul Nungesser at Columbia to beef up her false claim. The ideas is that one person might not be believed, but three? So all you need is to co-opt a couple of friends and, boom.
Then there’s the issue of timing. Someone claims you “rubbed against her” three years ago by the water cooler. Let’s assume, for the sake of argument, it happened, although it was accidental and you never realized it. If something is said at the time, you can deal with it. Years later, it’s just some crazy claim you know nothing about; can’t disprove, can’t even remember.
It could be that the complaint is real and justified, but it could also be nonsensical oversensitivity that could be addressed swiftly. Although today, there’s a good chance that it would nonetheless come back to haunt a man, perhaps cost him his job, anyway, since neither proof nor opportunity to respond matters when the wave washes over you.
And then there are the vagaries. “Joe raped me.” Okay. So what does that mean? Did he hit you over the head, throw you in a dark alley and rip off your clothes, or did the two of you have drinks, consensual sex, and then after he broke up with you and you cried to your gender studies prof, decided it was rape instead of love? The pop phrase of the day is “sexual misconduct,” which means absolutely nothing. Conclusory phrases are so much easier than actual facts, which don’t always sound as awful.
But Conor has constructed his own variation on a theme.
It might permit accusers a number of options:
- Submit a sealed, sworn affidavit to document an instance of harassing behavior in the moment, without deciding to take any further action at that moment.
- Submit a sworn complaint about workplace harassment that is sealed until some number of other people file similar complaints about the same company or individual, triggering notifications to all the victims.
- Submit a ticket that alerts an HR department that an anonymous employee, verified to be working at their company, is concerned by an aspect of workplace culture.
- Submit a ticket that generates a private alert to an individual notifying him or her that an unnamed co-worker asks that they voluntarily change a behavior.
Carefully designed and administered, a system like that might have stopped alleged serial abusers like Roger Ailes and Harvey Weinstein years ago by giving their victims access to a transformative insight: that they were far from alone.
It’s adorable to add in “carefully designed and administered,” as if saying the words is the same as it happening, whatever it actually means. But we’re now into anonymous tickets, so not only do we have all the infirmities that afflict every attempt to circumvent the system, but now we add in the next level of problems. Piss someone off? Not respond to someone’s flirtations? That crazy woman in accounting?
Conor is right that these contortions of basic systems to protect the integrity of complaints while enabling an accused to defend himself might well have stopped “alleged serial abusers.” And random house-to-house warrantless searches would likely stop violent crime too. But we don’t do that in America. The problem is the same contortions would also have snared completely innocent people. It’s not that it’s ineffective, but that it flips our system on its head. Every accused is presumed guilty until proven innocent.*
Key to our willingness to turn a blind and stupid eye to a system necessitated by feelings and excuses is the claim that there are few false allegations, so even though Blackstone’s Ratio is tossed aside, there won’t be too many innocent men thrown under the bus for the sake of women’s feelings. Too bad, so sad, for the innocent guys, but hey, women have been oppressed for so long that it’s time for guys to suffer.
This is why it’s being pounded by the media, despite it being utterly false, that false accusations almost never happen. If an accusation is true, and some obviously are, then they should be tested in the same way that all accusations are tested. Anything less is just an inquisition built to cater to fears and feelings at the expense of due process. When you get caught up in the wave, this might not seem like such a bad thing, until the wave drowns you.
*And, not to belabor the point, but if we can flip the presumptions and burdens in sex claims, there is no reason why the same can’t, and won’t, happen in every other crime.