Tuesday, December 12, 2017

Independence, timeliness, and proportionality would make a fair system for dealing with sexual harassment cases

Part of the problem with how Congress is dealing with (or not dealing with) accusations of sexual misconduct is that its investigative processes are flawed. Zephyr Teachout, an Associate Professor of Law at Fordham, proposes a fair system for dealing with sexual harassment complaints against members of Congress in I’m Not Convinced Franken Should Quit.

I also believe in zero tolerance. And yet, a lot of women I know — myself included — were left with a sense that something went wrong last week with the effective ouster of Al Franken from the United States Senate. He resigned after a groundswell of his own Democratic colleagues called for him to step down.

Zero tolerance should go hand in hand with two other things: due process and proportionality. … Due process means a fair, full investigation, with a chance for the accused to respond. And proportionality means that while all forms of inappropriate sexual behavior should be addressed, the response should be based on the nature of the transgressions.

… here’s what a fair system might look like: Congress should empower an independent arbiter to investigate complaints — like a Government Accountability Office, with trained experts in the field. Clearly understood mechanisms for reporting should be established. A timetable should be set that ensures complaints receive a prompt response. Both the accuser and the accused could submit questions and would have access to trained advocates and free legal consultation.

The independent arbiter would then make a nonbinding proposal addressing what happened and what should be done. It could include a call to resign or for censure, or a range of other responses tailored to the findings.

… the current alternative — off with the head of the accused, regardless of the accusation — is too quick, too easily subject to political manipulation and too vulnerable to the passions of the moment.

We don’t have the system I’m suggesting. But that doesn’t mean we should give up on process. On Nov. 30, a Senate ethics panel announced the beginning of an investigation into the allegations against Senator Franken. It should run its course, and we should see the results. Then we’ll know whether his planned resignation was warranted.

With time, and the existing ethics procedures, things are likely to emerge that will surprise us all. New facts may put Senator Franken in a better light, or a far worse one, and we should be open to both.

The quick rush to public condemnation … fueled by the media, end[s]up hurting the accuser and the accused … condemning a sitting lawmaker is a public choice and one our representatives should make judiciously.

As it now stands the “off with the head” resignation, like a Presidential pardon, is an admission of guilt but one foisted on the accused by that “quick rush to public condemnation.” As a nation of laws we have to do better than that.

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