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On Friday, the New York Times published an op-ed by the writer Daphne Merkin mourning the death of due process as a result of the post-Weinstein reckoning.
“The fact that such unwelcome advances persist, and often in the office, is, yes, evidence of sexism and the abusive power of the patriarchy,” she wrote. “But I don’t believe that scattershot, life-destroying denunciations are the way to upend it. In our current climate, to be accused is to be convicted. Due process is nowhere to be found.”
That’s an interesting statement, given almost none of the powerful men accused of sexual violence over the course of the past year have been charged with a crime, let alone convicted.
Bill Cosby, who faced credible accusations of sexual harassment and rape from more than 50 women, was not convicted after a trial for sexual assault. The late Roger Ailes, who faced credible accusations of sexual assault and harassment from more than 20 women, was never charged with anything, although the FBI is reportedly probing Fox News to determine whether the network should have informed shareholders about the settlements made in Ailes’s harassment lawsuits.
The NYPD has announced vague plans to arrest Harvey Weinstein at some point, but has not done so. Neither Kevin Spacey nor Matt Lauer, who Merkin describes as the truly “heinous sorts,” have faced any legal charges for sexual harassment, assault, or rape.
And as for Garrison Keillor, Jonathan Schwartz, Ryan Lizza, and Al Franken, four accused men who Merkin holds up as a different kind of alleged predator: None of them have been charged with anything either. They may have been accused, but criminal charges, to say nothing of criminal convictions, are nowhere in sight.
So in that case, what due process is missing?
Have any of the accused men lost their jobs without investigation?
Of course, Merkin may not necessarily be talking about due process in its legal sense. It’s entirely reasonable to read her statement idiomatically, so that “to be accused is to be convicted” means “to be accused is to experience negative consequences.” Likewise, “due process is nowhere to be found” could be interpreted as “these negative consequences are occurring on the basis of an accusation, without an investigation.”
It is true that many of the accused men have lost their jobs, which is certainly a negative consequence. But is it accurate to say that they lost their jobs without investigation?
Keillor was fired from Minnesota Public Radio following what was reportedly a month-long investigation into “inappropriate behavior.” Schwartz was first suspended and then put on leave following what New York Public Radio describes as “two separate investigations overseen by outside counsel,” which found that Schwartz had “violated our standards for providing an inclusive, appropriate, and respectful work environment.”
Lizza was fired from the New Yorker following a review of what the magazine described as “improper sexual conduct,” and has been suspended from CNN pending CNN’s own investigation. Franken resigned from the Senate under pressure from a group of Democratic senators after being accused of sexual misconduct by eight different women.
Out of all these cases, the only accused man who did not lose his job following an internal investigation was Franken. Had Franken been subject to an investigation from the Senate Ethics Committee, rather than choosing to resign voluntarily, the investigation would most likely have taken several years and been repeatedly blocked by partisan posturing.
It’s also worth noting that, in cases where such investigations have been conducted, the Senate Ethics Committee has not ruled against a sitting senator in more than two decades. But if it were to break tradition to rule in favor of Franken’s accusers and recommend Franken’s expulsion, his accusers would receive a settlement from Treasury funds — meaning that they would have essentially been paying themselves a portion of their settlement out of their tax dollars.
Do companies have to wait for a criminal conviction before they fire employees?
While it’s unlikely that any of these internal investigations would hold up to the standards of a criminal court, it’s also the case that you don’t need to be convicted in a criminal court to be fired.
As Christine Emba wrote for the Washington Post in December, “the Constitution doesn’t oblige NBC to retain Matt Lauer until a court somewhere finds him guilty of a sex crime.”
There’s a good reason for the standard of proof to be lower in internal corporate investigations than it is in criminal courts. The US court system has a very high bar for criminal convictions because a criminal conviction should not be inflicted on anyone unless they are found guilty beyond a reasonable doubt.
But as the potential consequences of a court decision grow less serious, the standard of proof lowers: In civil court, the standard of proof is a preponderance of evidence, because there’s no possibility of a criminal conviction at stake. In college campus Title IX hearings, where the most consequential thing that can happen is an expulsion, colleges can choose between a standard of a preponderance of evidence or “clear and convincing evidence.”
For cases involving sexual violence, these kinds of lower-stakes alternatives are invaluable because sexual violence is very difficult to prove beyond a shadow of a doubt.
There are usually few witnesses, physical evidence can be waved away as “she wanted it rough,” and most people are primed to believe the accused rather than the victim — especially when, as in these recent cases, the accused is a powerful and well-liked man.
A victim might not have the kind of evidence that would stand up to a criminal court — but she might have enough to register as “a preponderance of evidence” or “clear and convincing evidence.” So the victim can go for a lower-stakes punishment: No one will face jail time, but maybe she won’t have to be on the same campus as her abuser or work in the same office.
Is getting fired for cause the same as being convicted without due process?
So what has happened to the four men who Merkin specifically holds up as unjustly convicted without due process, these innocent souls sacrificed to the Reckoning?
They’ve lost their jobs. Three of them were fired following formal investigations into their behavior; Franken, whose former office does not have a reasonably functioning investigatory arm, voluntarily left following eight separate accusations. While the Keillor, Schwartz, and Lizza investigations may not have been up to the standards of a criminal court, they also didn’t carry the same type of consequences as a criminal court, and as such they required a lower burden of proof.
None of these men have been convicted of any crimes. None of them have even been charged with any crimes.
But what about the other men affected, the ones Merkin labels as “the heinous sorts”? The ones who face multiple, detailed accusations of rape and sexual assault, with witnesses and corroborating evidence to spare?
A few of them have charges pending against them. Fewer of them have been arrested. None of them have been convicted.
And in the past, when these kinds of powerful men were accused of sexual violence and made it all the way to trial, almost none of them received jail sentences.
Given these facts, is it really the accused men of the Reckoning who have not had due process? Or is it their victims?
Correction: An earlier version of this piece stated that the standard of evidence on college campus Title IX cases is “clear and convincing evidence.” In fact, colleges can choose between using a standard of a preponderance of evidence or clear and convincing evidence.
