There Is a Solution to the Sex Abuse and Harassment Epidemic Unfolding Before Your Eyes—And You Will Be Surprised at Who Must Step Up to Succeed
Marci A Hamilton
The list keeps growing of powerful men accused of sexual abuse, assault, or harassment. In historical order, just to name the headliners, Bill Clinton, Fr. Paul Shanley, Jerry Sandusky, Bill Cosby, Donald Trump, Harvey Weinstein, Roy Moore, Al Franken, John Conyers, and Charlie Rose have all faced accusations of this nature. Thank God. This is the moment that will change history, because the “kings” of our culture are being brought to the public square and revealed for what they are–craven abusers of power.
There has been intense media coverage but surprisingly little if any attention paid to the experts on sex abuse, assault and harassment, who could inject facts into the discourse. There is actually a science of child sex abuse and sex assault. Instead, there has been a lot of hand-wringing by those who do not labor in this vineyard, and over-politicization of the issues to the point that you can’t see what you need to see. When a cable news show staffs its “panel of experts” to discuss these cases solely with political reporters and pundits, they are missing the mark. Let’s start by putting some facts about sexual misconduct on the table.
About the Perpetrators: Don’t Trust Your Instincts
This is about power, and Americans typically understand how power operates. To start at the beginning, the United States is based on a basic proposition: assume everyone who has power is likely to abuse it. You can thank James Madison and the other Framers for this time-tested foundation. To be sure, they were discussing the President, Congress, and the courts (which covers Trump, Clinton, Conyers, and Franken) but, let’s face it, the same reasoning applies to the priesthood, college sports, Hollywood, music, and the media.
Each sex abuse, assault, and harassment case is about a man abusing his power over a child, woman, or man who can’t match his influence. Those in the headlines have had astronomical power over their victims, and they exploited it. Despite their power to hire and fire and make or break careers on the merits, they hedonistically grasped for more. Americans are understandably struggling with the “before” and “after” images of these men. There is a cognitive dissonance once their misdeeds become public. It’s not an either-or issue, though: these men are both their talented, successful selves and sex abusers.
It may be natural to trust your instincts about who is a predator, but it is foolhardy. A common response to these allegations is that “it cannot be true” while the person struggles to outfit the image of a powerful or “good” guy with this ugly element. These men want you to continue to be blind to that new revelation. They only get to exercise the power they do by clearing the space around them, either through mass intimidation like Weinstein or by being the “nice guy” like Clinton or Rose. They spent their whole careers persuading you that they are who they appear to be—but in reality they are not. So coming to the truth means you have to abandon your certainty about identifying sexual molesters.
It is heartbreaking when you learn that the formerly lovable Bill Cosby is despicable or that “godly” Roy Moore is in fact the guy Jesus was talking about when he said, “If anyone causes one of these little ones—those who believe in me—to stumble, it would be better for them to have a large millstone hung around their neck and to be drowned in the depths of the sea.” Matthew 18:6. Yet, only the truth will protect the next child or prevent other victims from piling up. As long as you self-righteously insist you can infallibly read another person’s soul, you are asking for the perverse to harm the vulnerable. To put this another way: sexual predators lie, and they tend to be really good at it.
Ken Lanning, the now-retired FBI expert on child sex abuse, has explained pedophiles in a way that also makes sense for the sexual assaulters and harassers: the reason that these guys have succeeded at harming others is because they earn people’s trust–either through accumulated power or through being the super nice guy. Their trustworthiness creates the access. So the fact that you have known someone “forever” and never seen them do one bad thing is basically irrelevant when it comes to those who sexually abuse, assault, or harass. What they are doing is not done on the street corner for you to see. Your instincts are wrong.
Perpetrators also succeed because they are duplicitous. They live a double life, and are so arrogant that they believe no one will ever know about their “indiscretions.” So when you hear someone like Trump or Moore protesting their innocence in the face of a long line of believable women, you should be thinking more about narcissism and a Messiah complex than doubting these women. The perpetrators fervently believe that they are wonderful men who don’t deserve to be brought down like this—regardless of the sexual misconduct they perpetrated. Their power is boundless, even God-given! In their self-referential world, they have magical powers to treat women and children as objects and to never be held accountable.
If you are still in denial about any of the men mentioned above, you need to re-read the preceding section.
About the Victims: Wading Through Intimidation, Humiliation, and Shame
Victims of sexual misconduct rarely make it up and often cannot come forward immediately. They have been accused by some of fabricating their claims either for publicity or because they are seeking a “pay day.” This is patently ridiculous. First, it is a matter of fact that people rarely make up sexual misconduct. This is a humiliating event, not something you want to announce from the ramparts. And the perpetrators know how to convince their victims that telling others is risky, whether it is the priest telling the kid his parents will go to hell if he tells or Weinstein threatening a young woman’s career prospects. Second, the “pay day” allegations are also just ignorance of the law. The vast majority of these victim’s claims are well beyond the statute of limitations. This is especially true for the harassment victims, whose statutes of limitation are measured in days–180 to 300 days to be precise. They have no legal leverage at this point; they are just trying to do the right thing by telling the public the emperor has no clothes. Even if they were within statute, the point of such claims is to shift the cost of the misconduct from the victim to the one(s) who caused it. That is just fair.
Some Americans also have attacked the victims’ credibility because they took so long to come forward. In reality, though, sexual misconduct victims often do take decades to come forward. In fact, the delay is often an indicator of their truthfulness, ironically enough. All sorts of coping mechanisms get in the way of coming forward earlier, from self-blaming and denial to PTSD and alcohol and drug addiction. This goes back to the toxicity of the power differential. They feel small, ashamed, humiliated, worthless, and intimidated all at once. The misconduct can come to define them in their own minds and lead to a dramatic shift in their self-worth, confidence, and even their career choices. All the while, the powerful abuser struts around in the public square proving his immense worth. And you wonder why it takes victims so long?
About the Context of the Misconduct
One of the reasons that you did not know about all these guys is that they create their conditions to dominate and to disempower the victim in secrecy. It’s not enough that they are already more powerful than the victim; they also like to isolate their prey. Notice how many of the cases you have heard about recently involve the perpetrators’ home, a hotel room, or a car. The victims have been lured into places where the perpetrator is in complete control, literally king of his domain. Why? Because they don’t want to be stopped, and, remember, this is a power trip. Trapping the prey is part of the conquest.
The public’s general ignorance of the facts of sexual misconduct– including the characteristics of the predator, the disabilities of the victim, and the secret contexts—has too often betrayed the victims and led to affirmation of the man who will simply do it again. The facts can help turn that around. But lasting change must go beyond attitudes to action.
The Other Factors That Have Created a Vicious Cycle of Seemingly Endless Sexual Misconduct
The public’s ignorance of the facts of sexual abuse, assault, and harassment, and the intimidation and shaming of the victims are not the only reasons sexual misconduct gets buried. Just as importantly, there are the legal mechanisms that drive these claims underground.
First, as discussed above, the statutes of limitation have been inexcusably short. For the children, many states continue to have indefensibly short SOLs. For the women raped years ago, the rape SOLs were short then, and the Supreme Court has made it impossible to give them a second chance at criminal prosecution under Stogner v. California. As discussed above, sexual harassment claims are cut off very quickly!
Second, nondisclosure agreements have permitted women to shift the cost of healing from their shoulders to the perpetrators’, but they have had to accept a gag in order to get this much justice. Given their feelings of intimidation and humiliation at the time of signing the agreements, they could easily be persuaded that the nondisclosure mandate is “all for the best.” No one more than the victim wants this to just be over. Moreover, they were usually led to believe that they were the “only one” anyway, so what good was having a bullhorn? Lawyers for the perpetrators routinely—with a straight face—tell the victim she was the very first to report, while having settled dozens more cases just like hers. Weinstein loved these agreements, which gave him carte blanche for the next victim, but he was not the only one. They were also popular with the Catholic bishops and abusers across the spectrum for decades. The defense lawyers advised their offensive clients that this would solve the “problem.”
Third, the insurance companies that were on the hook for the bad behavior of employees actively pushed companies to either rebuff the woman’s claims with hardball tactics or, second best, enter these secret settlements to avoid future liability. Few understand how the insurance industry drives settlements in virtually every sphere, e.g., the employment sphere, as here. Employers have insurance against employee misbehavior, and insurance companies have paid or partially paid many of the settlements in the sexual misconduct arena from the churches to the companies to the media. For them, there has been one value and one value alone: reduce exposure. If that means helping a perp get off and go on to graze for the next victim, their attitude has been “not my problem.”
Thus, the legal system and the greed of the insurance industry have perversely operated to empower abusers of all stripes. To be blunt: a lot of the responsibility for the perpetuation of sexual misconduct lies at the feet of the insurance companies. It’s time they become part of the solution instead.
It Is Time for the Insurance Industry to Find a Moral Compass and Stem This Tide of Sexual Misconduct
There is a systemic solution to the sexual misconduct pandemic, and it requires the insurance industry to step up. The vast majority of these claims are in the civil arena, because so few prosecutions go forward with the “beyond a reasonable doubt standard.” (Prosecutors are elected officials who watch their win-loss ratios closely. The public would be shocked by how few of the cases involving sexual abuse and assault are ever prosecuted despite strong evidence, but that is another column for another day.) That puts the insurance system on center stage due to its power to coerce better practices with the threat of no or escalating coverage. It has been no friend to victims as it has implemented non-disclosure agreements, intimidated victims, and avidly lobbied against statute of limitations reform.
If the industry declines to reform its predator-friendly practices, it’s time for hearings on Capitol Hill, which would supplement the recent hearings to enact legislation and rules to govern sexual harassment in Congress. They should probably happen anyway, but if there is no major insurance reform to solve the problem, there is no choice but to subpoena the executives. In all likelihood, Congress and the state legislatures will need to coerce them to do the right thing. The insurance industry has the power to turn around at least the workplace on these issues if it starts demanding the kind of preventative practices only it can effectively enforce and punishes those who harbor perpetrators with escalating premiums and the threat of no coverage.
With respect to members of Congress, it’s not the insurance world that matters, but rather a corrupt federal system ensconced in federal law. Interestingly, it needs the same fixes as the insurance industry, though, so I will include it in the discussion below.
Here is where we need to start to bring industries, institutions, and Congress into line:
First, non-disclosure agreements in sexual misconduct cases violate public policy and should be made unenforceable. While it is reasonable to permit the parties to agree that the settlement number is confidential, the perpetrator and/or entity should not be permitted to gag the victim. Non-disclosure agreements have been the darlings of the insurance companies and a mandatory feature of the federal system. The congressional victim has one route: to enter a lengthy and dysfunctional process at the end of which, if there is a settlement, secrecy is forced on her.
I would expect the insurance industry to sic its lobbyists on members contemplating a paradigm shift in this arena and to fight any bill that neutralizes nondisclosure clauses. But this is one of those instances where the public disclosure is so obviously in the common good that lawmakers need to put cotton in their ears. Besides, perhaps my cynical expectation that the industry (and members of Congress) will fight for nondisclosure agreements to the detriment of the common good is misplaced. One can hope daily scandals will guide the industry and federal government to a moral compass that points toward policies that protect the vulnerable rather than the predators and their complicit institutions.
Second, eliminate the SOLs for sex abuse, assault, and harassment. Let the victims come forward when they are ready, not according to some artificial deadline. 99% of the women who have come forward against the list of men at the start of this article were barred from the judicial process. This is a cause the insurance companies have been fighting for decades—against their better interests. They don’t want SOLs to open up, because more perpetrators and at-fault institutions named, which increases their liability. Yet, it’s better for them to permit the SOLs to be liberalized, because it concretizes their liabilities and makes it possible to demand that a perpetrator be fired so that they can avoid future liability. With short SOLs, the cycle of misconduct, settlement, misconduct, settlement remains in place, which does not serve the industry’s ultimate ends.
Third, insurance companies (and Congress) need to institute workplace rules with teeth that are a pre-condition to coverage and/or service that halt the secrecy spiral:
- To qualify for coverage or to maintain one’s status in Congress, there should be mandatory training, as in real training conducted by professionals and not in-house people, on the rules of sexual misconduct from abuse and assault to harassment. It should be made clear that no one gets a pass—not the perpetrator and not the bystander, or observer. There should be mandatory reporting internally and to the authorities when a crime has occurred. Reporters must be shielded from retaliation.
- Employers and Congress should be required to pledge to discharge any employee who has engaged in sexual misconduct, and that determination follows an investigation. Recommendations for other jobs would be required to disclose the sexual misconduct. Failure to disclose would create liability for the company that discharged the predator.
- Employers and Congress must institute meaningful zero tolerance policies for sexual misconduct that are worth the paper they are written on. Most companies have pro forma policies but in practice, as we have learned, supervisors are wont to ignore allegations if the man serves the organization’s interests, whether it be image, power, or money. If it turns out a company’s supervisor learned about sexual misconduct and ignored it, that should come with the heavy price of steeply increased premiums. The member of Congress who fails to disclose knowledge of sexual misconduct should be subject to mandatory censure.
- There need to be annual sexual misconduct audits. If there is reason to be suspicious, the insurance company (or relevant committee in Congress) must investigate all allegations with special focus on any cover-up. Results are to be released to the public, not buried.
- Policies related to off-premises business or institution-related activities need to be tightened up. If the employee is performing work for the organization or in its name off-premises, as was Charlie Rose at his home, the company should be liable for any misconduct and the insurance company on the hook. There need to be rigid rules about work off-premises (other than flex-time when there is no employee interaction). Charlie Rose’s and Weinstein’s off-premises activities couldn’t have happened but for the environment. They weren’t going to parade around nude and uncovered at work.
Fourth, as I discussed here, the defamation laws need to be rewritten to protect the victim who goes public. None of these guys should be permitted to rattle the saber of defamation like Cosby, Trump, or Moore. The first order of business in any such claim should be an expedited proceeding on the facts of the sexual misconduct. If the victim proves the acts occurred to a preponderance of the evidence, the perpetrator should be liable for treble damages and attorneys fees. The remedy will deter such lawsuits except for the most narcissistic predators.
Find a comfortable place to read this holiday weekend, because more sexual abuse, assault, and harassment stories will roll across your Twitter and Facebook news feeds. There will be lots to read. Oh, wait, if you’re one of the guys waiting for the sexual misconduct shoe to drop, I suppose you won’t be that comfortable. Good. Welcome to a world where the vulnerable have a chance at justice.
(This article was originally published on November 22, 2017 on Verdict, Legal Analysis and Commentary from Justia at Justia.com. It is reprinted with permission.)