Harassment, Due Process and Navigating the Gray

 By Erica and Karen

Since we published our posts about sexual harassment, the dangers of zero tolerance, and the need for line drawing, we have had numerous conversations about this long overdue reckoning. While many have agreed with our views (we were delighted with Ronnie Eldridge's NYT Letter to the Editor and Daphne Merkin's op-ed), others have not, arguing that we need zero tolerance at least for now. What they say is that we need to whack all men over the head to make them understand. Some go on to say that it may be the only way to get Trump.

We see it differently. We see zero tolerance as dangerous because it aborts processes designed to elicit facts and determine punishment. It throws all people and all conduct into only two buckets--good and bad. The world doesn’t work like that. There are people and behaviors that certainly fall within those categories. But most human activity is in between. Navigating the gray, including consideration of social norms, is particularly important to ensure that punishments are fairly calibrated. 

Zero tolerance is flawed also because it is inconsistent with notions of due process. Of course, we are entitled to make judgments about what we hear and read--and to act on them. There is no due process requirement that attaches to one’s voting decisions. The voters of Alabama exercised their rights to decide, based on what they knew, whether Roy Moore was fit for office. Because the statute of limitations had run on the allegations against him, there was no other forum in which his conduct could be evaluated. Understanding that reality, other elected officials have chosen to resign rather than face a public reckoning. 

But where someone’s job or reputation or freedom is threatened and there are processes available for the facts to be aired and the response considered, they should be used. That was the case with Al Franken. An ethics proceeding that would have elicited the facts and allowed for a deliberate response had begun. He was entitled to avail himself of this process, and his constituents were entitled to have him so as well. Zero tolerance intervened to deprive his constituents of their elected representative and deprive all of us of any ability to evaluate the facts or to formulate an appropriate response. 

So what about Trump? If you are of the zero tolerance persuasion, your would conclude that the allegations against him are alone sufficiently credible to warrant resignation or impeachment. If you take a more nuanced view, you would prefer to await an airing of the facts in the lawsuits pending against him, after which you will be in a position to make an informed judgment about both what happened and what the response should be. Much as we believe Trump and his conduct on many fronts is beyond the pale, we believe it appropriate for citizens to apply the same standards to him as we would have applied to Al Franken. And to ourselves.

Cass Sunstein, a well known constitutional scholar, when confronted with hard issues asks how he would feel if someone he supported were at risk. It's an important question. We believe zero tolerance no matter what is not going to serve our country--or women--well. Due process is a right that belongs to everyone.  And nuanced judgments are a hallmark of an informed citizenry.