sexual harassment accusations and due process

 

The Harvey Weinstein scandal first broke in October of last year. And in the weeks and months that followed, the list of men accused of sexual misconduct in entertainment, the media, politics, and pretty much every industry grew exponentially. Even the legal industry was not immune.

The news, according to Boston College Law School student Caroline Reilly, “sparked a long-overdue public reckoning about sexual violence, rape culture, and the ways in which survivors are silenced.” And there certainly was quite a reckoning: First, there was the #MeToo movement which quickly went viral on social media and exposed the ubiquity of sexual harassment and abuse. Then came Time’s Up, which aims to combat systemic sexual harassment in all industries through lobbying and providing funding for legal support if victims are unable to afford it.

However, at the same time, there is another response that is becoming just as vocal: Many people have starting asking whether those accused of sexual harassment deserve some sort of due process? In other words, can steps be taken to prove any accusations before those accused lose their jobs and reputations?

First, some clarification is definitely needed: Due process is a legal concept. Period. As a directive of the Fifth and Fourteenth Amendments of the U.S. Constitution, due process is required prior to any denial or deprivation of rights by the government. The critical distinction however, as Matt Pinsker, constitutional law scholar and adjunct professor at the Wilder School at Virginia Commonwealth University, points out, “As a constitutional right, ‘due process’ only applies to government action, and has nothing to do with the private sector.”

In other words, “corporations aren’t courts of law, and the Today show isn’t a government entity,” wrote Christine Emba, a Washington Post opinions writer and editor. “Human resources officers aren’t dispassionate federal judges; they’re risk managers for the organizations they serve.”

In essence, there is no requirement that a news organization, law firm, or any private employer provide due process. According to Washington D.C. attorney Tom Simeone, “The press is free to write about allegations, even if not proved and they end up being false. Likewise, if someone is an at will employee, they can be fired for any reason, including an allegation, even without any process to verify the allegation.”

So what defense do those accused have at all? Defamation laws are in place to protect the accused and as Simeone explains, “can be used to sue someone who makes or repeats false allegations.” And there has appeared to be an uptick in such lawsuits. For instance, actor Geoffrey Rush recently sued an Australian newspaper for defamation while across college campuses, accused students are filing defamation suits against the women who say they were assaulted.

Also, in the case of many men in the private sector who have faced allegations of sexual harassment and/or misconduct, there have been many instances when they were legitimately investigated. They weren’t just fired right away. There was a process of sorts.

For instance, longtime WNYC radio hosts Leonard Lopate and Jonathan Schwartz were first suspended by New York Public Radio as an investigation overseen by outside counsel was underway. When placed on leave, Schwartz told WNYC news that this episode was “the most hurtful, outrageous and saddest” he had ever experienced. After it was announced he was being let go because of the counsel’s findings, he subsequently declined to comment.

On the other hand, TV and radio host Ryan Seacrest was cleared after accusations against him were investigated by an independent third party over the course of two months. Once E! revealed it found insufficient evidence, Seacrest first reiterated his support of the “effort to change our culture and the systemic inequalities that exist” and “the brave souls who have come forward to share their stories.”

Seacrest then hinted at the uphill battle he expected to face as a result of a “salacious story” published in Variety, after his name was cleared. “I have no choice but to again deny the claims against me, remind people that I was recused of any wrongdoing, and put the matter to rest,” he said.

Similarly Fox decided to stand by actor Fred Savage, who starred on one of the network’s shows, after he was accused of sexual misconduct. According to an article in Entertainment Weekly, Fox “conducted a thorough investigation into the allegations and found no evidence of any wrongdoing on the part of Savage.”  They said they will “vigorously defend against these unfounded claims.”

Savage himself released a statement, saying, “These accusations are completely without merit and absolutely untrue. Fox conducted an extensive internal investigation into her claims, a process in which I fully participated. After concluding a thorough investigation, Fox determined that there was absolutely no evidence to support these accusations. None of her claims could be substantiated because they did not happen.” And to the point that people will fight back against unfounded claims of sexual harassment, he added, “I wholeheartedly support all people who feel they are being mistreated come forward and speak to human resources and those in charge. We have witnessed so much bravery from those speaking out recently, but I will just as boldly protect myself and my family from those seeking to tarnish my good name. I cannot let these people, in particular, to denigrate me while harming the message of thousands of women and others who have suffered and continue to suffer.”

Of course, the influence of public perception is still certainly a force to be reckoned with. As we saw in the case of U.S. Alabama senatorial candidate Roy Moore, accusations made during a campaign can certainly have an significant impact. About 41% of voters confirmed that allegations of sexual misconduct against Roy Moore were either “the single most important factor” or “one of several important factors,” while 52% believed they were “definitely or probably true.” Price Foley writes that “not surprisingly, Moore lost, at least in part, because he lost in the court of public opinion.”

Bottom line: This conversation is far from over.

 

Kristin Johnson is an executive and corporate communications professional, and founder of KSJ Communications, a communications and public relations firm. She consults with a diverse roster of clients spanning the technology, professional services, financial services, public sector, consumer, and healthcare industries. In addition to Rocket Matter, Johnson writes for various other publications as well.