Reconciling #MeToo and the Right to Respond

Michael Charles May 16, 2018 copyright ?

The Power of Testimony and the Paralysis of Process

There is a kind of historical poetry in the accomplishments of the #MeToo movement. After being compelled into silence by the systemic barriers of court prosecutions and discriminatory practices in the workplace, women’s experience negotiating misogynist culture has ironically, through the power of public testimonial, moved to the front of our minds. Previously suppressed voices now blend and rise to call attention to abuses of power and privilege that decades of research and court cases seemingly could not. In a lyrical pattern repeated throughout time, repression seeds resistance to itself. 

But against the undeniable force of personal narrative remains the problem of how to adapt our complaints processes to reflect these experience-based critiques. This is especially true as we seek to insist upon accountability beyond courts to other public, private and non-profit institutions and workplaces. In a university, for example, what does it mean to support and believe sexual violence survivors on the one hand and still uphold fact-finding processes as neutral and impartial on the other? If complainants are presumed to be believed, does the burden of proof implicitly shift to respondents? How do we define procedural fairness in this deconstructed world in a way that minimizes these conceptual tensions?

As a man, I wade into this conversation knowing that my gender identification shades my perspective. But my perspective is also shaped as much, if not more, by my racial identity. My experience as a Black man allows for different insights into the interpretative areas between the letters and the lines of "objective" processes.  So as we think about difficult subjects in more complex and less polarized ways, I welcome the opportunity to link arms and hearts in open rigorous reflection with common purpose and a shared sense of goodwill.

A Focus on the Right to Respond – Danger Ahead

Concern for the potential erosion of the ‘right to respond’ to complaints and allegations of sexual harassment and assault in alternate dispute mechanisms is central to this discussion. The right to respond is a fundamental principle of law. It refers to the right to receive notice of a claim with sufficient detail to allow a person to make full answer and defence. I worry about the diminution of this right not merely as it relates to rights of respondents, but more importantly as it relates to the critical integrity of investigations and the corresponding if perhaps unintended implications for complainants.

Uncomfortable Cases

In Canada, these dangers have been quite vividly and publicly exposed in the case of the Saskatchewan New Democratic Party Member of Parliament, Erin Weir. 

It may be helpful to reproduce the consensus newspaper reporting on this story. I’ve drawn from accounts in the Globe & Mail, the Toronto Star and CBC.ca – all decorated Canadian news sources.

In February, Christine Moore, another MP and not a party to the case, is said to have written an email to the leader Jagmeet Singh alleging Weir had harassed several women. Singh declared the women ‘should be believed’, directed an investigation be conducted, and announced Weir’s suspension from caucus pending the outcome. The probe concluded that one claim of harassment and three claims of sexual harassment against Weir were “sustained”. Apparently, at no point was Weir told where, when, or who was making the allegations, only that the complainants were NDP staff or volunteers that did not work for him. 

In summarizing the investigation report in public, Singh said the investigation found Weir “did not recognize non-verbal signs” in social situations and that this behaviour led to “significant negative impacts” on the complainants. But he also added that when Weir was told “his advances were unwanted, he immediately stopped.”

The party later criticized Weir for clarifying that the findings did not include sexual touching while acknowledging that he may have missed social cues. Nonetheless, he was ultimately expelled from caucus. In a dramatic turn, a former Canadian soldier who, after perceiving Moore’s misplaced sanctimony in triggering the 3rd party complaint against Weir, stepped forward and accused MP Moore herself of sexual harassment. At the time of writing, the investigation into the claims against her is ongoing, but incomplete.

In the wake of this saga, the reaction through public commentary and media coverage has contained a fair amount of ambivalence with both the investigation and the result. Was this a fair process? Are harassing and sexual harassing behaviours substantively equivalent? Should there be any distinction in disciplinary remedies? 

The attention garnered by this very public case involving people with very public profiles masks the more common-place occurrence in other workplaces. At a recent national conference for the Prevention of Harassment and Discrimination in Higher Education, I spoke about this topic. In the conversations that followed, I was surprised by how many of my colleagues in the university sector were also seeing sexual violence matters coming forward for investigation at their institutions with unidentified complainants and/or with very little information about the nature of the allegations to which a respondent must make spontaneous answer. 

The Bigger Picture – I Can’t See Clearly Now

In our necessary haste to confront misogynist culture and support survivors, I worry about this emerging parallel inequity where as a community we run the risk of: 

• creating new standards around the right to respond that undermine essential investigatory neutrality and impartiality. That is to say, our desire to ease the challenges of proof may unwittingly undermine the appearance of truth.
• Precipitating a more general loss of confidence in investigatory outcomes that accompany perceptions of weakened neutrality.
• Contributing to the backlash against #MeToo and related social justice movements currently enjoying hard-won prominence and legitimacy.
• Eroding the educative aspect of investigations as one of many tools, but an important tool nonetheless, for cultural transformation. 

Continuing the Discussion

Still, I think there are changes we can make to our processes to better reflect more sophisticated understandings about the experience of survivors. We can also incorporate greater introspection about the cultural and structural barriers that have historically distorted and, in many ways continue to distort, dispute resolution procedures. What follows is certainly not an exhaustive list, much less a list I insist be accepted. I only hope to contribute to a conversation about better practices that seek to balance survivor-centric perspectives with impartial and fair fact-finding.

• Complaints should contain full particulars sufficient for a respondent to make full answer and defence. 
• Where complaint documents lack sufficient detail sufficient to make a full answer and defence, investigators should provide collected summaries of evidence to respondents prior to interviewing them. There is a temptation to want to surprise respondents with information to get more honest answers, but this does not necessarily result and risks obscuring the ostensible neutral character of the investigation with advocacy. Consider a well-planned cross-examination adapted for sexual violence cases or trauma-informed techniques as stronger tools.
• Complaints should identify complainants except in the rarest of cases where the initiating party is determined to be incapable of participating, or there is a risk that evidence will be lost in the time necessary for that party to be willing and able to be identified in the process.
• Legal training is necessary but alone may no longer be sufficient background for best practice investigations.
• Investigators should be trained in trauma-informed techniques that ease the stress on a party witness, reduce inaccuracy of information gathered, and respond to neurobiological insights into processes of memory and recall. 
• Investigators should be intensively trained in cultural competency and unconscious bias to gain greater insight into their own and others’ cognitive processes, as well as to develop greater capacity for perspective-taking and shifting.   
• A valid concern persists about whether evidence produced in ADR contexts should continue to be producible in parallel or subsequent criminal law proceedings. Complainant advocates argue this discourages reporting as it increases the potential for the uttering of inconsistent statements. Legislatures committed to downloading such significant investigatory responsibilities to institutions ought to reflect on this challenge through additional regulatory guidance.
• Organizations should prefer 3rd party investigators with the recommended training to internal investigators without the training until such time as internal capacity can be developed.

I am an optimist by nature as all those interested in justice inherently are. As others have more eloquently stated, I think we are headed in that direction as a society – towards justice – as long as we course correct from time to time.

(The views expressed are my own and not that of my employer)