law

Sexual Harassment and the Single Story

Sexual harassment allegations continue to dominate the news. I applaud the social movement to change our culture on this issue, but there is something in our national discourse that has been troubling me.

The individual tales of bad behavior are being merged into one story. There is no distinction between transgressions, whether they are isolated or part of a pattern, whether with adults or people under age, whether in a social setting or at work, whether a rebuff was followed by retaliation or not, whether it was decades ago or ongoing, whether the accusation has been carefully vetted or is just something someone posted on social media with a MeToo hashtag. All transgressions are equal, none can be examined deeply without accusations of victim blaming, and the only remedy on offer is firing the perpetrator and permanent ostracization.

The noted scholar Mary Beard wrote in the Times Literary Supplement that she is “conflicted” on the issue of public shamings.

When I say ‘conflicted’ I mean exactly that. Part of me feels that the majority of the allegations that have followed since the Harvey Weinstein cases are probably true, and — in the absence of any real likelihood of criminal prosecutions  (even in cases where that would be a technical possibility) — a bit of public naming and shaming might be the best way of changing the culture on this (and, as I said before, changing the culture in ordinary workplaces as much as in celebrity culture).

But another part of me feels that some of these allegations are probably not true (or at least there is another side to them) — and that no newspaper account is ever going to let us judge which those (albeit minority) cases are. And those innocents have no way  of putting their side of it (at least a legal trial allows you to do that).

In a recent article in Jezebel, Stassa Edwards argues against appeals to due process or any talk of redemption for the accused. She makes the case that such talk is an attempt to sweep the problem under the rug and to return to a comfortable status quo. Certainly such arguments can be, but they are not by definition, and we should not be so quick to dismiss the idea of giving the accused a fair hearing. We need to be especially careful precisely in cases where emotions and stakes are high.

Edwards argues against a New Yorker piece by Masha Gessen, who she quotes here:

“The affirmative-consent and preponderance-of-the-evidence regimes shift the burden of proof from the accuser to the accused, eliminating the presumption of innocence,” she writes, never pausing to consider that jail, suspension or expulsion from school, or job loss are hardly synonymous, or that their long-term repercussions are the same.

Indeed, jail and losing a job are not the same. But we should not be too quick to minimize the impact of social shaming, loss of career and personal identity.

Jon Ronson, who studied those who have been publicly shamed found that years later, the shamers had gone on with their lives and assumed the forgotten targets of their public shamings had too. They’d just lost a job, what’s the big deal? But, he reported, “…we want to think they’re fine, but they’re not fine. The people I met were mangled.”

So “only a job” is not a good excuse to abandon the presumption of innocence. If you were accused of something, you would want an opportunity to respond and be heard whether in court or in the court of public opinion– whether the stakes were jail or losing your job or simply a loss of face, wouldn’t you?

Are we not sophisticated enough to hold these two thoughts at once: that these offenses represent a serious, far-reaching, systemic problem and that we need to be fair to the people who are accused as well as the accusers?

Those who have, at some period in our lives, experienced unwanted sexual advances and want change, should be the most concerned with giving the accused a fair shake. Exaggerating and conflating undermine our own efforts by making us easy to dismiss. Every example of over-zealousness provides an excuse for someone to say the problem doesn’t really exist.

We are a culture that uses celebrities as symbols in our shared mythology, much as we once told tales of the gods. Politicians and film stars are a common point of reference to talk about our dreams, aspirations and values. So the celebrity who transgresses is shunned in order to demonstrate our cultural values. Symbolically, if Louis CK’s actions are forgivable, then so are your wretched boss’s, and therefore we cannot yield.

Nor do we welcome much nuance if it disturbs the important process of myth-making. If individual cases do not quite fit the pattern, they are sometimes made to. Let me give you an example. I believe Anthony Rapp’s accusation against Kevin Spacey. Spacey did not deny it. What was outrageous in that case was Rapp’s age– 14 at the time Spacey allegedly made a move on him.

Since then, many additional accounts of bad behavior have been levied against Spacey, but they have mostly been by adults, although you would be forgiven for not noticing that. To be clear here, I am not dismissing any of the accusations against Spacey here or arguing that they are not truthful or serious. I simply wish to make a point about how the various cases have been synthesized in the reporting to create a seamless narrative.

Consider this passage in a USA Today article on another Spacey accuser. I have edited it to remove the name and some identifying information of the accuser:

It was July in New York and [he] was just 27, in his first major job out of college [at a theater where] he was running the fledgling film program. He was in his office one day, phone in hand, when Spacey walked in and sat down at an empty desk.

 [He] knew who [Spacey] was. Then 22, Spacey was an up-and-coming actor, playing a minor role in Henry IV Part 1, according to records.

The narrator goes on to report that Spacey groped him and became angry when he was rebuffed.

The article goes on “… he was shocked, then freaked out. Would Spacey get him fired?”

I removed the accuser’s name because I do not want to make this about him or to make it appear I am trying to minimize his experience or call his story into question. That is not my point. Rather, I have some questions on how USA Today chose to relate his story.

If you scanned the article quickly, you’d be forgiven for not noticing a few things. The victim is described as being “just 27.” The word “just” emphasizes his youth, although 27 is an adult in anyone’s book.  Spacey’s age does not earn a “just” even though– take note– he was five years younger than the other man. Note also that Spacey is described as an “up-and-coming” actor. This makes him sound notable. This is in contrast to the language used to describe the 27-year-old’s job: his first out of college, a fledgling program.

Other language could have been used to describe an actor who was not-yet-famous and who had only managed to land a “minor role” in a Shakespeare production. You might go so far as to call him a “struggling actor.”

It is not clear whether the victim’s concerns about being fired were his own. They were not presented in the form of a direct quotation. Was this 27 year old, who ran the film program at the theater really worried that a 22 year-old, then-unknown actor in a minor (easy to recast) role would get him fired? Was that what was on his mind? Or did he simply describe behavior that he found notably aggressive and the reporter speculated on his feelings? Perhaps the writer decided that a story of an awkward and unpleasant sexual advance between two co-workers (in which the person who made the advance arguably had lower status) did not fit the growing narrative of male abuses of power well enough.

These stories get reported under headlines saying that “a new accuser” has appeared.  Six out of ten people share news stories having only read the headline, which means most people will naturally assume that the stories that follow are more of the same even if there are important differences. To people who see headlines flashed across their newsfeeds, they are all Anthony Rapps.

A person does not have to be innocent to be a scapegoat. A scapegoat is someone who is made to carry the sins of others, to take on the burden of punishment to absolve an entire group. We use our celebrities this way, as symbols. We have always used them this way. They deserve it, we feel, because they courted fame in the first place. They get to be treated as small gods, and when they fall, they take on the sins of all who shared their transgressions.

But celebrities are just people. They should be held accountable for their actions in proportion to their severity, not in proportion to the severity of the social problem as a whole. Each accuser should be listened to and judged on the basis of her own story, not as a representative of the collective sufferings of women.

Edwards writes “what’s at issue here is civil rights—freedom from discrimination in the form of harassment because of gender or sex.”

She is right. Civil rights is the issue.

We can’t be champions of civil rights without having a concern for fair treatment of both the accused and the accuser.

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Oscar Wilde and The Irony of Atonement

wilde-fansEngland feels really bad about what it did to Oscar Wilde.

I mentioned a couple of weeks ago that they just posthumously pardoned him, along with thousands of other gay men. The apologies continue at the National Portrait Gallery where portraits of Wilde and Lord Alfred Douglas are being displayed side by side to mark society’s change in attitudes. The Evening Standard reports that this is part of a show marking the decriminalisation of homosexuality in 1967.

We’ve come a long way since William Powell offered to paint Wilde out of his “A Private View at the Royal Academy” in the wake of Wilde’s trials.

There is a small irony, however, in using Wilde to celebrate the 1967 change in the law.
If Wilde had been tried under the Sexual Offences Act of 1967,  he would have received a five year sentence rather than the two year sentence he did under the LaBouchere Amendment. The law that decriminalized gay sex set the age of consent at 21 and almost all of Wilde’s partners mentioned in court were younger than that, the youngest being sixteen and seventeen. (In 1994, the age of homosexual consent was lowered to 18 and then, in 2000, to sixteen bringing it in line with the age of heterosexual consent.)

To paraphrase our president: Who knew that history was so complicated?

What is the Basic Unit of Society?

There is an age old debate over what the basic unit of society should be. Is it more important to protect the interests of the community or of the individual? Should we, for example, require all of our citizens to be of the same religion, to have the same sexual orientation, to participate in the same rituals, to speak the same language? Can we require people to conform in the name of social cohesion or should individual rights take precedence? This is the old liberal/conservative split.

It occurred to me, while watching news about the confirmation hearings for Neil Gorsuch, that there is a small, but powerful faction (because they are aligned with those who have money) that now views another entity as the basic unit of society which needs protection–the corporation.

Social science author F.S. Michaels has argued that we live in a Monoculture, with an economic framework for understanding what it means to be human in the world. “In our time, in the early decades of the twenty-first century, the monoculture isn’t about science, machines and mathematics, or about religion and superstition. In our time, the monoculture is economic.”

In the economic monoculture we live and participate in markets and see ourselves as consumers rather than citizens. Citizens have duties to one another. Consumers go shopping and have choices. In a society based on religion, gods are the main forces driving everything. In a society based on economics, the corporation is the driver.

Corporations transcend communities and even national borders. This puts them outside the old community/individual split. In the economic monoculture, both individuals and communities, even nations, must put aside their own needs for the greater good of economic growth. The market is expected, as the gods and monarchs were in days of old, to provide well-being for the general population.

In this clip Senator Al Franken questions Supreme Court Nominee Neil Gorsuch about the case of Alphonse Maddin a truck driver employed by TransAm Trucking of Olathe, Kansas. On a day when the temperature fell to -27 F, the brakes on Maddin’s trailer failed. He waited for TransAm to send a repair unit. After three hours, they had not arrived. The heater in the cabin was not working. The temperature fell to -7 and Maddin found, in his words, “I could not feel my feet, my skin was burning and cracking, my speech was slurred, and I was having trouble breathing.” Still his employer urged him to wait. Believing he might die, Maddin ventured out into the cold to lock the trailer, then unhook it from his cabin so he could drive to safety. He later returned and finished his job, but he was fired anyway for leaving the trailer.

Maddin sued for wrongful termination. He won his case, but TransAm Trucking appealed, and the case was argued before the federal 10th Circuit Court of Appeals. Among the three judges hearing the case was Neil Gorsuch. Of the seven justices who heard the case over its years winding through the courts, only Gorsuch sided with TransAm. Gorsuch’s dissent did not cost Maddin his case, but it was popular with the business community.

There is one tangential point that I wanted to make, as we have been talking about the meaning of compassion.  In this exchange with Franken, Gorsuch insists he has empathy for Maddin. Empathy means to understand the feelings of another person, to put yourself in his place.  Even as he pleads “empathy,” he continually dodges the question of what he would do in Maddin’s position. (Maddin is African-American and it is possible that Gorsuch subconsciously believes that he was not actually in any real danger, wrongly assuming as even many medical students apparently do, that Black people actually feel less pain.)

Putting that aside, what Gorsuch appears to fundamentally believe is that employees have the duty to be obedient to their employers, even to the point of giving their lives in the service of the “job creator”. This is what a nation asks of citizens who are drafted into wars. In that case, the citizen sacrifices to preserve the nation. In the Gorsuch case the employee sacrifices to preserve the corporation.

This makes a certain sense, perhaps, if the market, not the nation or community, is viewed as the primary organizing principle of society.

“Regulations” vs. “Laws”

Our new Congress is ready to get to work eliminating regulations, which, they believe stand in the way of a healthy economy by placing burdens on business. The president has even proposed eliminating all regulations through an exponential process in which the passage of any new regulation would require the elimination of two other regulations. “We want to create some guidelines for self-driving cars, so do you want to allow glass in your food or to get rid of the codes that ensure bridges don’t fall down?”

“Regulations” in our current political climate are almost always presented as bad, whereas “laws” are good. It is often the same candidate who runs on a platform of law and order and eliminating regulations. Yet on their most basic level, laws and regulations are the same thing. They are guidelines that set the boundaries of how we are to live together as citizens. In common parlance, if you have a coal company and you want to dump your coal dust in local waterways, there is a regulation about that.  If you want to stand at the edge of a public pool and piss into it, you are violating the law. (Congress is sympathetic to one of these uses of shared water. Can you guess which one?)

Whether a it is called regulation or a law, it is an instruction that limits certain behaviors by imposing a penalty that is socially enforced by courts and police. By their nature, they stand in the way of someone’s interests in balance of the interests of others. Having a speed limit means that we can’t get where we’re going as fast as we’d like, but we’re less likely to have fatal road accidents. If you have a nearby park and would like to use it to swim naked in the fountain you will be thwarted by law. Now frolicking naked is a perfectly legitimate way to spend an afternoon, and people who want to pic nic without seeing your bare behind just have a competing way they’d like to use the space, but legislators decided that there are probably more people who want parks without nudity than those that do and the only way to be sure that this happens is to make it a law.

Regulations work the same way. It may be cheaper for a company to create a workplace where, occasionally a laborer falls into a shredder than to install safety devices. Yet we’ve decided as a society that protecting the life of the laborer should outweigh the inconvenience and cost to the employer and we legislated accordingly.

Talking about being tough on “crime” (breaking the law) while wanting to eliminate “regulations” generally speaking protects the interests of one social class over another. It is a law that the poor person cannot steal from a store. It is a regulation that the store has to give its employees reasonable work hours, breaks and overtime pay. In both cases, there is an entity that is harmed. The owner of the store is harmed by theft. The employee is harmed by being required to put in unpaid overtime. The financial value of these two infractions could be equal if the shoplifter can lift a lot of big screen TVs, but the value of the underpayment is likely to be more. If you’re tough on the crime of theft and think it should be up to the business owner to determine what is fair, you are siding with the store owner in each case. The philosophy behind this seems to be that the person who owns a business is by virtue of his social status to be trusted, whereas everyday workers and citizens need to have their behavior controlled.

In July 2015, when the Americans with Disabilities Act was celebrating its 25th anniversary, the New Republic wondered if there was any chance it would be passed today. It was signed into law by George W. Bush, but, Brian Beutler wrote, “these protections are the products of a lost era in which Republican politics didn’t reactively foreclose the idea of using federal power in service of the common good.” He concluded that if the ADA did not already exist, we would not get it.

Laws and regulations are restrictions and they can make sense or not. (Example: the Alabama law that says you can’t wear a fake mustache that makes people laugh in church.) Society is not static, and it makes sense to revisit our laws and regulations from time to time. In the UK, for example, they just posthumously pardoned thousands of gay men who had been jailed for the crime of “gross indecency with another male person.” At the time, it seemed to the citizenry, that requiring sexual non-conformists to behave was a social good and that the cost to the individuals was outweighed by the need of the community to impose a heterosexual norm. There were some high profile cases that started to make people wonder if the benefits of conformity were really worth the cost to society of, say, cutting short the lives and careers of Alan Turing and Oscar Wilde. British society has decided not only to change the law, but to symbolically show they regret that they had ever written it. (Of course, the realization comes a bit late for the other men whose lives were torn apart and the friends and families who were hurt along with them.)

To talk about eliminating “regulations” in the abstract makes no sense. When it comes to regulations, the real question should be, who is inconvenienced or harmed by having or not having the regulation, how much, how effective is the regulation at protecting those it was designed to protect, is there a way to achieve that end that is less of a burden to other stakeholders. In short, what are the social costs of making (or keeping) a rule or not making a rule.