8 ms·

Putting employers and schools at the center seems like the wrong approach. If there is a victim and a perpetrator, why can't it be handled in court between them

Putting employers and schools at the center seems like the wrong approach. If there is a victim and a perpetrator, why can't it be handled in court between them? Asking the employer/school to handle it is a recipe for injustice. Their interest is to limit their liability and favor their most useful employees, in that order. Justice is a distant concern.

AnimalMuppet 9y ago
> ... why can't it be handled in court between them? If you're falsely accused, do you want to have to spend $10,000 to defend yourself? If you're harassed, do you want to have to spend $10,000 to accuse the perpetrator? That's why it should be handled in court only as the last resort.
- chroem- 9y ago
  It's much harder to make false accusations in a court of law.
  - tptacek 9y ago
    It's much harder to make any accusations in a court of law.
    - ams6110 9y ago
      Right, because as an individual you can't make an accusation in criminal court. That is done by a prosecutor, who will have to be reasonably confident that he has sufficient evidence to get a conviction.
      - tptacek 9y ago
        You've confused "court of law" with "criminal court". Most sexual harassment claims are civil, not criminal.
- prepend 9y ago
  I think the idea is criminal courts, not civil. So prosecution would be free, but expensive to defend yourself.
  - AnimalMuppet 9y ago
    It is my impression that most harassment does not rise to the level of criminal. (I could be wrong, though.)
- pharrington 9y ago
  Certainly, which is indicative of a larger, fundamental problem the US currently has in trying to be a nation beholden to the rule of law.
- mudil 9y ago
  That's a circular argument. On the other hand, all other disputes and infractions are handled in court. Say someone's daughter is sexually harassed on a neighbor's lawn. Is the lawn the place to investigate and punish the accused?
- busterarm 9y ago
  > If you're falsely accused, do you want to have to spend $10,000 to defend yourself? Versus losing your ability to receive higher education or an income in your industry (or period?). Seems like a real no-brainer choice to make there.
scarmig 9y ago
Centering employers and schools in programs to reduce sexual harassment has developed as the consensus approach because it is where relatively privileged women (often rich, often white) are most keenly affected by it. That's despite the fact that, even once age-adjusted, students are victimized by rape at a lower rate than non-students. Why not courts? Courts are constitutionally required to have a higher standard of evidence than other institutions. In the usual case where a rape has absolutely occurred, the evidence often amounts to he-said/she-said. That's rarely enough for a conviction. That's understandably deeply dispiriting to anti-rape activists, so they move activism toward places that can afford lower evidentiary standards. Is that the right way? Who knows. But I think it may be best to treat sexual assault as an epidemiological problem. That's hard to swallow--after all, rapists are bad people and deserve severe punishment, not dry statistical treatments. But given how hard it is to "fairly" prosecute rape, treating programs to end sexual assault as interventions to decrease incidence and then measuring how effective they are seems like it may be more productive in the long term.
- prepend 9y ago
  “Why not courts? Courts are constitutionally required to have a higher standard of evidence than other institutions. In the usual case where a rape has absolutely occurred, the evidence often amounts to he-said/she-said. That's rarely enough for a conviction. That's understandably deeply dispiriting to anti-rape activists, so they move activism toward places that can afford lower evidentiary standards.” This is a really interesting idea. But how would you confirm sexual assault. Are you saying that “innocent until proven guilty” should be revised? What other crimes do you think this should apply?
  - scarmig 9y ago
    I was being descriptive of why courts don't effectively adjudicate sexual assault now. I wasn't proposing any particular solution, because it is a hard problem. As a thought experiment, you can imagine a world where courts are required to give instructions to the jury, telling them that they must always treat an alleged victim's testimony as a 100% accurate representation of the incident. That would make most sexual assault cases slam dunk. And it'd result in more guilty rapists being convicted, and very likely more of them than the number of innocent people falsely accused of rape. Is that an appropriate use of institutions of justice? I don't think so. And it wouldn't be sustainable, as it'd weaponize accusations in a way that they're not now: you'd rapidly see people abusing it, and see a huge backlash. But there's not an alternative justice-wise to that, which is why attentions are turned to other institutions that can only offer a slap on the wrist, but a slap on the wrist that can be based on very little evidence. No one is really happy with that reality, but no one has any better ideas. That's why an epidemiological approach--running tests on everything from lights, to educational programs, to banning hard alcohol at school or work sponsored events--seems like the best way out of this hole to me.
scoggs 9y ago
They are already the two most likely candidates involved who would want to sweep things under the rug. Bringing attention to those type of situations going on in the workplace, hell even less severe stuff like basic crime, is not what schools and businesses want to do.
ams6110 9y ago
Reasons why the courts don't handle all these cases include lack of capacity, and because nobody has a right to an education at a particular school or a job with a particular company. As long as they follow a defined process in each case, private organizations can generally adjudicate disputes internally. Because the limit of what they can do is expell or fire you, the stakes are lower and so is the burden of proof compared to what is needed for a criminal conviction.
- jeffdavis 9y ago
  Unless the adjudication is secret, it creates a weird problem: what starts out as an unknown ("did the harassment happen or not?") becomes a fact ("he was fired for harassment"). That fact could follow the accused the rest of their life, and others may make judgements based on it, even if the original harassment claim was bogus and the adjudication a charade. Even of the accused finds exonerating evidence later, there would be no process to reverse it.
dragonwriter 9y ago
> Putting employers and schools at the center seems like the wrong approach. If there is a victim and a perpetrator, why can't it be handled in court between them? Employers and schools are at the center because sexual harassment is sex discrimination in employment or education, and thus rightfully creates liability for the employer and school under anti-discrimination laws. The individual acts by which that discrimination is carried out may also be crimes or torts, aside from being a component of institutionalized discrimination, and when they are, that is absolutely addressable in legal action between the parties (for torts) or between the State and the criminal aggressor (for crimes).

AnimalMuppet 9y ago

> ... why can't it be handled in court between them? If you're falsely accused, do you want to have to spend $10,000 to defend yourself? If you're harassed, do you want to have to spend $10,000 to accuse the perpetrator? That's why it should be handled in court only as the last resort.

chroem- 9y ago
It's much harder to make false accusations in a court of law.
- tptacek 9y ago
  It's much harder to make any accusations in a court of law.
  - ams6110 9y ago
    Right, because as an individual you can't make an accusation in criminal court. That is done by a prosecutor, who will have to be reasonably confident that he has sufficient evidence to get a conviction.
    - tptacek 9y ago
      You've confused "court of law" with "criminal court". Most sexual harassment claims are civil, not criminal.
prepend 9y ago
I think the idea is criminal courts, not civil. So prosecution would be free, but expensive to defend yourself.
- AnimalMuppet 9y ago
  It is my impression that most harassment does not rise to the level of criminal. (I could be wrong, though.)
pharrington 9y ago
Certainly, which is indicative of a larger, fundamental problem the US currently has in trying to be a nation beholden to the rule of law.
mudil 9y ago
That's a circular argument. On the other hand, all other disputes and infractions are handled in court. Say someone's daughter is sexually harassed on a neighbor's lawn. Is the lawn the place to investigate and punish the accused?
busterarm 9y ago
> If you're falsely accused, do you want to have to spend $10,000 to defend yourself? Versus losing your ability to receive higher education or an income in your industry (or period?). Seems like a real no-brainer choice to make there.

scarmig 9y ago

Centering employers and schools in programs to reduce sexual harassment has developed as the consensus approach because it is where relatively privileged women (often rich, often white) are most keenly affected by it. That's despite the fact that, even once age-adjusted, students are victimized by rape at a lower rate than non-students. Why not courts? Courts are constitutionally required to have a higher standard of evidence than other institutions. In the usual case where a rape has absolutely occurred, the evidence often amounts to he-said/she-said. That's rarely enough for a conviction. That's understandably deeply dispiriting to anti-rape activists, so they move activism toward places that can afford lower evidentiary standards. Is that the right way? Who knows. But I think it may be best to treat sexual assault as an epidemiological problem. That's hard to swallow--after all, rapists are bad people and deserve severe punishment, not dry statistical treatments. But given how hard it is to "fairly" prosecute rape, treating programs to end sexual assault as interventions to decrease incidence and then measuring how effective they are seems like it may be more productive in the long term.

prepend 9y ago
“Why not courts? Courts are constitutionally required to have a higher standard of evidence than other institutions. In the usual case where a rape has absolutely occurred, the evidence often amounts to he-said/she-said. That's rarely enough for a conviction. That's understandably deeply dispiriting to anti-rape activists, so they move activism toward places that can afford lower evidentiary standards.” This is a really interesting idea. But how would you confirm sexual assault. Are you saying that “innocent until proven guilty” should be revised? What other crimes do you think this should apply?
- scarmig 9y ago
  I was being descriptive of why courts don't effectively adjudicate sexual assault now. I wasn't proposing any particular solution, because it is a hard problem. As a thought experiment, you can imagine a world where courts are required to give instructions to the jury, telling them that they must always treat an alleged victim's testimony as a 100% accurate representation of the incident. That would make most sexual assault cases slam dunk. And it'd result in more guilty rapists being convicted, and very likely more of them than the number of innocent people falsely accused of rape. Is that an appropriate use of institutions of justice? I don't think so. And it wouldn't be sustainable, as it'd weaponize accusations in a way that they're not now: you'd rapidly see people abusing it, and see a huge backlash. But there's not an alternative justice-wise to that, which is why attentions are turned to other institutions that can only offer a slap on the wrist, but a slap on the wrist that can be based on very little evidence. No one is really happy with that reality, but no one has any better ideas. That's why an epidemiological approach--running tests on everything from lights, to educational programs, to banning hard alcohol at school or work sponsored events--seems like the best way out of this hole to me.

scoggs 9y ago

They are already the two most likely candidates involved who would want to sweep things under the rug. Bringing attention to those type of situations going on in the workplace, hell even less severe stuff like basic crime, is not what schools and businesses want to do.

ams6110 9y ago

Reasons why the courts don't handle all these cases include lack of capacity, and because nobody has a right to an education at a particular school or a job with a particular company. As long as they follow a defined process in each case, private organizations can generally adjudicate disputes internally. Because the limit of what they can do is expell or fire you, the stakes are lower and so is the burden of proof compared to what is needed for a criminal conviction.

jeffdavis 9y ago
Unless the adjudication is secret, it creates a weird problem: what starts out as an unknown ("did the harassment happen or not?") becomes a fact ("he was fired for harassment"). That fact could follow the accused the rest of their life, and others may make judgements based on it, even if the original harassment claim was bogus and the adjudication a charade. Even of the accused finds exonerating evidence later, there would be no process to reverse it.

dragonwriter 9y ago

> Putting employers and schools at the center seems like the wrong approach. If there is a victim and a perpetrator, why can't it be handled in court between them? Employers and schools are at the center because sexual harassment is sex discrimination in employment or education, and thus rightfully creates liability for the employer and school under anti-discrimination laws. The individual acts by which that discrimination is carried out may also be crimes or torts, aside from being a component of institutionalized discrimination, and when they are, that is absolutely addressable in legal action between the parties (for torts) or between the State and the criminal aggressor (for crimes).