Why the #MeToo Moment Should Be Ready for a Backlash
In the final five years of his presidency, Barack Obama’s administration undertook a worthy and bold challenge: the elimination of sexual assault on campuses. In fact, Obama’s team had a much more ambitious goal in mind. Vice President Joe Biden, the point person for the campus initiative, said at the end of his term that the administration was seeking “to fundamentally change the culture around sexual assault”—everywhere. New rules of sexual engagement between college students were written at the directive of the administration, but top Obama officials said they wanted these to be applied in the workplace and beyond. “You’re going to change the workplaces you work in,” Tina Tchen, director of the White House Council on Women and Girls, said at a 2016 event honoring campus sexual assault activists. “You’re going to raise your sons and daughters differently.”
They expected this transformation to take years. But with the daily toppling of powerful men who have committed sexual violations in Hollywood, the media, Congress and more, these changes have become seismic. The silenced have been given voice, and their testimony has resulted in the swift professional demise of perpetrators. Shocking descriptions of the behavior of powerful men have shown that it’s not universally understood that it’s unacceptable to display one’s genitals at work or to sexually abuse colleagues.
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We now have an opportunity for profound reform, for women and men to join together to treat each other with dignity and respect. But as this unexpected revolution unfolds, we should also keep in mind the dangers of creating new injustices in the service of correcting old ones.
For that, it’s useful to look at how reforms played out on campus, where, unfortunately, many of the Obama administration’s good intentions went awry. Among the principles and polices that have become entrenched at schools—and are now spilling out into the wider world—are the beliefs that accusers are virtually always telling the truth; that the urgency to take action is more important than fair procedures; that we shouldn’t make distinctions between criminal acts and boorishness; and that predatory male behavior is ubiquitous. These beliefs have resulted in many campus cases in which the accused was treated with fundamental unfairness, spawning a legal subspecialty of suing schools on behalf of these young men. Examining what happened on campuses shows where the politics and social rules of interaction between the sexes might be headed—and how to avoid making the same mistakes on a larger scale.
Much of the Obama administration’s policy was at the initiative of Biden, for whom the issue of violence against women was career-defining. In 1994, as a senator, he oversaw the passage of the Violence Against Women Act, what he calls his “proudest legislative accomplishment.” When he became vice president, a new position was created under his aegis, White House adviser on violence against women, and he appointed Lynn Rosenthal, a national leader on domestic abuse, to fill it. The administration then decided to focus its efforts on what it said was an epidemic of sexual violence against female students by their male classmates. In 2011, the Department of Education sent a bombshell letter with the bland greeting, “Dear Colleague” to the country’s 4,600 institutions of higher education laying out new rules for how campuses were to root out and punish sexual assault.
It was the beginning of a concerted effort that radically remade how students could interact sexually, with severe penalties for violating increasingly stringent codes of conduct. Title IX is the federal law that prohibits discrimination in education on the basis of sex. Under the Obama pronouncements, college Title IX offices became vast bureaucracies, and students were encouraged to report any perceived violation. The Dear Colleague letter forbade “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” To stay on the right side of federal regulators, many school codes expanded to turn even unwanted flirtation or sexual jokes between students into actionable offenses. New rules known as “affirmative consent” were put in place on many campuses, requiring that partners engaging in any sexual contact get explicit permission, preferably verbal, for each touch, each time. (Affirmative consent on campus has become law in California, Connecticut and New York.)
Rosenthal later explained why the administration put such focus on the sexual encounters of college students: “We felt it was a problem we could identify, evaluate, study and develop targeted interventions for,” she said at a seminar on sexual assault in January 2015, a few days after leaving the administration. “We also believed that what happens on our college campuses affects our nation. If we get this right on college campuses, we can influence an entire generation.”
Now, it’s not just an entire generation—it’s the entire nation. No matter whether an accusation is made about violations on campus, in the workplace or on the streets, it is essential that the accounts be taken seriously and the accusers be treated respectfully. But in the debate over campus sexual assault, believing accusers, especially female ones, has become a virtual article of faith. Many Democratic politicians have expressed an opinion similar to the one recently tweeted by California Senator Kamala Harris, regarding college campuses: “Survivors of sexual assault deserve to be believed, not blamed.” As Harvard Law professor Jeannie Suk Gersen wrote in the New Yorker, wanting to examine the evidence before coming to a conclusion has come to mean being perceived on campus as being “biased in favor of perpetrators.”
In this national “just believe” the accuser moment, it’s important to remember that part of the power of the recent accusations against movie producer Harvey Weinstein and so many others is that they are backed up by meticulous reporting that has provided contemporaneous corroboration and other evidence. Presented with these revelations, the accused themselves in many cases have provided confirmation by acknowledging at least some of their violations. A failed attempt by the right-wing group Project Veritas to persuade the Washington Post to publish the account of a fake accuser of U.S. Senate candidate Roy Moore demonstrated the power of verifying before believing.
The complications of “just believe” are illustrated by the saga of Al Franken, who, on Thursday announced his upcoming resignation as a Democratic U.S. senator from Minnesota. In the past few weeks, he has been accused by several women of unwanted attempted kissing, or touching them on the buttocks or breast while having photographs taken with them. Franken started by issuing a series of tortured apologies, which neither acknowledged that he did the touching, nor categorically denied it. In responding to Leeann Tweeden, a fellow performer who says Franken aggressively kissed her during a rehearsal for a United Service Organizations show more than a decade ago, he said, “While I don’t remember the rehearsal for the skit as Leeann does, I understand why we need to listen to and believe women’s experiences.” He added, “And the truth is, what people think of me in light of this is far less important than what people think of women who continue to come forward to tell their stories. They deserve to be heard, and believed.”
This made it sound as if either Franken knew he had done inappropriate things and wouldn’t admit it, or he believed he hadn’t but couldn’t say so—proclaiming his innocence would mean casting aspersions on his accusers’ truthfulness. Franken sounded as if he had taken last year’s mandatory Title IX training for freshman at the University of Southern California, where the first piece of advice given to USC students accused of sexual assault is to acknowledge the likelihood that they are guilty, as documented in an article in the conservative outlet Campus Reform: “Admit to yourself that even if you don’t remember the event, or don’t believe yourself capable of hurting someone, that it’s possible that you may have crossed a boundary.”
In the announcement of his resignation, Franken took a more defiant tone, backing off the admonition to believe his accusers’ version of events. He said he had “wanted to be respectful of that broader conversation, because all women deserve to be heard and their experiences taken seriously,” but that his statements “gave some people the false impression that I was admitting to doing things that in fact I haven’t done. Some of the allegations against me are simply not true. Others I remember very differently.” So we are left knowing Franken was forced out by his Democratic colleagues, but not knowing exactly what to believe about the charges against him.
Ironically, Franken has been an ardent supporter of the Obama-era policies on campus sexual assault, policies that have required the creation of an industry to train, adjudicate and litigate Title IX matters. In August, four feminist Harvard Law professors—Gersen, Elizabeth Bartholet, Nancy Gertner and Janet Halley—released a paper, titled “Fairness for All,” writing that the procedures on campus today “are frequently so unfair as to be truly shocking.” For example, “some colleges and universities fail even to give students the complaint against them, or notice of the factual basis of the charges, the evidence gathered, or the identities of witnesses.”
The Obama administration Dear Colleague letter also required that “interim measures” be taken against the accused, before any adjudication. These can be harshly punitive, resulting in students being removed from certain classes, their movements on campus limited; sometimes they are even banned from school. The case of veteran New York public radio host Leonard Lopate illustrates what such “interim measures” look like in the workplace. On Wednesday, just before he was about to go on the air, Lopate was told he was being suspended because an investigation of “many” sexual harassment complaints against him was underway. He told the New York Times that he was “shocked” and “baffled” and that WNYC “didn’t even give me a clue” about the nature of the allegations. He added, “I am sure any honest investigation will completely clear me.” Indeed, both Lopate and the public are entitled to hear the results of a fair investigation. But surely before being publicly shamed, Lopate was entitled to know what the accusations against him were.