An imperfect but understandable response to sexual misconduct

Watershed cultural moments inspire tough questions, and #MeToo is no different. Over recent months we've seen powerful men in politics, business, media and entertainment held accountable for sexual harassment and sexual assault. In many cases their behavior was tolerated, excused and even encouraged, often for years. And those of us who work in the anti-sexual-violence movement have also heard the questions about due process, zero tolerance and the hierarchy of harm.

It is impossible to deny the catharsis of so many voices coming together to say out loud what was repressed for so long. Our society is unkind to those who speak out about sexual harassment and sexual assault. It is difficult to find support even among friends and family, let alone the broader public, where blame and disbelief are the most common responses. There's the usual dismissive terminology "he said/she said" or some variation thereof depending on the genders of those involved. For those who do report to law enforcement, justice can be elusive. The rate of cases resulting in conviction is extremely low, approximately 0.2 to 5.2 per 100 according to End Violence Against Women International, a federally funded technical assistance and training provider.

Civil actions are also challenging, despite the lower burden of proof. It can be difficult to find an attorney who will take a case when there is little to gain from the defendant, be it an individual or an institution. Legal fees are costly. Countersuits, including defamation, are always a risk. The victim/survivor is often portrayed as an opportunist out for a big payday. And a settlement or verdict can take a very long time to reach - if ever.

The vast majority of victim/ survivors - many of whom are marginalized and vulnerable and don't have the means or platform to speak out - continue day in and day out to endure sexual harassment and assault because they have no other choice, no access to a lawyer, no knowledge of their rights and no faith that anyone will care. Food, shelter, childcare and other basic needs all depend on staying in situations that are degrading and harmful. They cannot afford to say "me too" without suffering extreme consequences.

The above paragraphs describe just a few of the barriers to justice for victim/survivors. And while these barriers in no way negate the importance of due process, it's easy to understand why so many people, denied justice for too long, are impatient for action. Zero tolerance is an extreme stance and potentially not appropriate in all cases, but it may be necessary in a world where tolerance has only perpetuated the problem of sexual harassment.

We have to be clear about what we expect from those who hold powerful positions, especially when they are charged with making the laws. This can be difficult when a legislator is a champion for a cause we care about - much is lost in a situation like Sen. Franken's. While in office, he used his position to improve the system response to sexual violence, and he will hopefully continue to do so as a private citizen.

Franken resigned because he could not be effective in this or any other pursuit as a lawmaker. He may have even considered how an ethics investigation would put the women who made allegations into a harsh spotlight, one that Anita Hill dealt with during the Clarence Thomas Supreme Court confirmation hearings in 1991. That was a shameful moment in congressional history, but also one that could easily be repeated in 2017.

The court of public opinion is neither fair nor nuanced. Victim/survivors know this all too well. Most people don't want vigilante justice but are understandably interested in gaining leverage against the powerful, privileged and connected who break the rules and laws in our society yet retain their roles with impunity. Zero tolerance can feel like a way to recalibrate an imbalance that has existed for centuries. It's an imperfect response but an understandable one.

Right now we need to honor the moment and learn from it. It's going to be uncomfortable and messy - like any other movement it will take time to evolve and grow and mature. The message of #MeToo is ultimately about culture change. To achieve a world where sexual harassment and assault no longer exists does not mean trading in our values, like a commitment to due process. But as lawyers we know that due process isn't the only answer it doesn't guarantee just results. In the end, we need to look at how all of the systems that govern our lives are complicit in the harm and respond accordingly.

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Caroline Palmer is public and legal affairs manager at the Minnesota Coalition Against Sexual Assault.

Published: Fri, Jan 26, 2018

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