[wildmusings]

Binding arbitration and confidentiality agreements are two totally different things, that seem to be getting conflated here. There is a defensible argument for not allowing mandatory binding arbitration for certain things.

But eliminating the ability of parties to agree to a confidential settlement is a huge mistake.

It will result in victims getting less money. An allegation of harassment, without further evidence, is not going to fare well in court. Yet the accused might be willing to pay a settlement to put the matter to rest and avoid negative publicity. By prohibiting them from getting confidentiality in exchange for payment, you have removed their largest incentive to pay the accuser. Further, a publicized settlement will be taken as an admission of guilt, which is a further incentive to go to court.

And those accused, who may be innocent, are protected as well. They can avoid having their name smeared in the media, where they stand no chance of getting a fair hearing in the current climate.

[gpm]

Accusers getting more money isn't good for the public. Incentive to settle without a fair trial in something as serious as sexual assault is not only not good for the public, it's bad for the public. Due process exists for a damn good reason.

Preventing sexual assaults is good for the public, publicizing cases of sexual assaults may well have a tendency to do that.

Based on your arguments above, I would come to the conclusion that NDAs on this should be banned. But I haven't thought enough about the topic to conclude that there aren't successful counter arguments.

[sverige]

I would argue that the recent wave of "guilty until proven innocent" and "guilty when accused, and more guilty if accused by more people" is even worse for public policy. Due process does indeed exist for a good reason, one of which is to prevent a situation where mere accusations have the power to destroy lives.

Does this mean I think any or all of the recent high-profile cases are innocent? Oh shit, wait, it doesn't matter what I think unless I'm on a jury or in a position to hire or fire the person who is accused.

It's easy to feel smugly righteous about a lot of these cases, but the reality is that it does matter if innocent people are caught up in the hysteria. I'm not quite sure when the media collectively decided that it was a good idea to promote abandoning the principle of "innocent until proven guilty," but the long-term consequences of this are likely to play out in very unexpected and ugly ways that will affect most or all of us in areas that have nothing to do with sexual harassment.

[rayiner]

Talk of “innocent until proven guilty” is misplaced. In a workplace context, you’re not judging guilt and innocence. You’re resolving a civil dispute, where nobody’s freedom is at stake, only property. Even in courts the standard used for civil disputes isn’t “guilt beyond a reasonable doubt” but a mere “more likely than not” conclusion. I’m a civil litigator. We never talk about “innocent until proven guilty.”

Imagine you’re in a dispute with someone over where your property line is drawn. If someone presents an affidavit attesting to facts that show the property line is actually five feet into what you thought was your yard, and you have no facts to the contrary, guess what: you’re losing summary judgment. Civil standards give the defendant a very thin benefit of the doubt. Your accuser’s story just has to be a hair more believable than the other person’s alibi.

Workplace harassment cases are emphatically not like criminal cases. A false negative (acquiting a guilty person) usually has no direct negative effect in most criminal cases. A murder victim doesn’t much care if the state incorrectly acquits her murderer. Workplace harassment is more like the land boundary case. Somebody gets the land; a false negative means one party has been wrongly deprived of her land while the other party had received an undeserved windfall. In a workplace, likewise, an accuser who is telling the truth but is not believed is wrongfully forced to either continue working with her harasser, or to give up valuable career opportunities. A false negative (failing to believe a truthful accuser), is pretty much as bad as a false positive.

[MaxBarraclough]

What's your opinion of Title IX? (Forgive my assumption that you practice in the USA.)

My understanding is that it has college campuses hearing criminal cases.

(I'm British, and only learned about this yesterday.)

[rayiner]

So during the Obama era, rules were put in place to force colleges to deal with sexual assault accusations. The basic idea is sound: the university needs to do something when one student accuses someone else. Applying a criminal standard of proof is incredibly unfair. In the case of a false negative, that results in some student being forced to continue attending classes with her rapist, or to give up educational opportunities by leaving the school herself. Unlike in the criminal context, a false negative (incorrect acquittal) has a direct prejudicial impact on the victim. A rape victim whose rapist doesn’t get convicted may suffer a moral loss, but it’s not like conviction can undo the rape. Accordingly, many women don’t even press charges. But in a college context, the victim is seeking something that can actually help. Not punishment of the accused, but freedom to continue her education without the threat posed by the accused.

Once you realize that false negatives are as harmful as false positives, then it makes sense to use a civil standard instead of putting a thumb on the scale for the accused. Statistically, sexual assault is far more common than false accusations. Applying a criminal standard results in a lot of social harm through false negatives that isn’t outweighed by avoiding false positives.

Where I think Title IX goes off the rails is treating these cases as being about punishment. Civil standards aren’t for punishment, they’re for resolving disputes. In this context, it’s not about deciding whether the accused is guilty of rape, but about deciding: “which student should be the one to leave?” I think Title IX resolutions should be secret and the only remedy should be expulsion or some sort of internal restraining order.

[MaxBarraclough]

Wasn't planning on batting politics here on HN, but - I'm inclined to agree with asfd... who has apparently deleted their comment. How annoying.

> The basic idea is sound: the university needs to do something when one student accuses someone else.

No, that isn't sound. It's a criminal matter. You don't inform your professors, you don't inform your employer, you don't inform your gardener, you inform the authorities. We're not talking about plagiarism here, we're talking about a criminal offence.

As a Brit, the idea that a college should have some sort of mini criminal justice system, seems utterly absurd. The only institution with its own criminal justice system, is the military, and they take it every bit as seriously as the civilian world.

> Applying a criminal standard of proof is incredibly unfair.

We're talking about adults dealing with crime. How is the criminal justice system any more unfair simply because both the victim and the suspect are both students at the same institution?

> Unlike in the criminal context, a false negative (incorrect acquittal) has a direct prejudicial impact on the victim.

That's a nasty attribute of rape, and of various other crimes, not of colleges.

Aren't most rapes committed by someone the victim already knew? You seem to be treating the college case (where both are students of the same institution) as categorically different from a case where the suspect is a friend (well, 'friend') or colleague of the victim.

I don't see it. I certainly don't see it as a justification for lowering the burden of proof, or for letting the suspect escape ordinary criminal-justice proceedings.

> But in a college context, the victim is seeking something that can actually help. Not punishment of the accused, but freedom to continue her education without the threat posed by the accused.

Again I don't see a category difference here. If the suspect is a colleague, or a member of a social circle shared with the victim, the same issue arises.

> Once you realize that false negatives are as harmful as false positives

Of course false negatives are harmful, it would be absurd to deny that, and no-one is doing so. That is the case for all serious crimes. It remains necessary to insist on a high standard of proof, and on presumed innocence.

> sexual assault is far more common than false accusations

You seem to be assuming that this ratio is set in stone. If you make it easier to make a false accusation 'stick', we would expect them to happen more often.

> In this context, it’s not about deciding whether the accused is guilty of rape

But it is. The consequences of the accused being found guilty can be severe, no? If a rape has occurred, a crime has been committed. Dealing with crimes is not within the purview, or the competences, of a college.

[asfdsfggtfd]

.

[tomjakubowski]

That’s a misunderstanding of Title IX. Under the Obama administration’s guidelines, incidents of sexual harassment and assault on university campuses were treated as violations of the victim’s civil rights. They were required to give a hearing if a purported victim came forward with an accusation to determine, using the “preponderance of evidence” standard, whether the alleged incident occurred, and if so, to discipline the student responsible under the university’s code of conduct. This might take the form of counseling, probation, suspension, expulsion, or whatever.

The Trump administration relaxed the requirement that universities adhere to the “preponderance of evidence” standard.

This is all, for incidents where a crime occurred, in parallel to the usual criminal court system. No university Title IX panel is trying criminal cases.

[greglindahl]

Society has not abandoned innocent until proven guilty in court cases. That's where that standard applies.

[jeffdavis]

Courts do have stricter standards for admission of evidence and verdicts. But the basic innocent-by-default is a general principle that should apply pretty much everywhere.

And there should be consistency and standards in media reporting of allegations, and for HR decisions.

[geofft]

The thing about innocent-by-default is that false accusations are also a serious crime with serious penalties (for good reason), and if you believe that the accused is affirmatively innocent, you have to believe that the accused is guilty.

The reason that courts, specifically, do not have this paradox is that "innocent" simply means "we do not have the evidence to justify using the extraordinary punishment powers reserved to the government alone against this person". Yes, there's such a thing as getting a court to declare you affirmatively innocent, but usually they say "not guilty," which is an important philosophical distinction. So a court can very well decide that a person has not been proven guilty of their crime, and that their accuser has not been proven guilty of malice, either.

But humans don't work like that. When we think "innocent," we don't think "I have insufficient data," we think "they didn't do it". It is arguably a flaw in human thinking, but it's a flaw we have to live with and work with. And a world in which all who accuse people of sexual harassment are effectively guilty-until-proven-innocent in the court of public opinion isn't a great world, either.

[AnthonyMouse]

> But humans don't work like that.

Sure they do. There are three options, just like there are in court. We punish the accused, or we punish the accuser for lying, or we don't punish either of them.

Not punishing anyone is what we do when we don't have convincing evidence one way or the other. That's just consistency -- you don't punish the accused without proof just like you don't punish the accuser without proof.

When there is no way to know the truth, it's completely valid to do nothing.

[dragonwriter]

> The thing about innocent-by-default is that false accusations are also a serious crime with serious penalties (for good reason), and if you believe that the accused is affirmatively innocent, you have to believe that the accused is guilty.

That's usually not strictly true; knowing false accusations are a crime, but it's usually possible for the accuser's statement not to be a knowing falsehood while the accused is not factually guilty.

[friendzis]

> But humans don't work like that. When we think "innocent," we don't think "I have insufficient data," we think "they didn't do it". It is arguably a flaw in human thinking, but it's a flaw we have to live with and work with.

This interestingly maps to computer science. When talking about accusations for some reason we expect outcome to be binary, while the outcome is ternary. Binary logic is difficult, ternary logic is even more so.

Given ternary input state of accuser (false accusation, real accusation, ¯\_(ツ)_/¯ accusation) and ternary input of state of accused (guilty, not guilty, ¯\_(ツ)_/¯), I try to think of logical (relational?) operator/function which combines these inputs and yields ternary verdict. Given that output should be undefined unless both states are known, there should be AND between the states. Maybe something like Verdict = Accuser AND NOT Accused which would yield a verdict only if both accusation and guilt can be proven. But we still have a can of worms unopened regarding evidence and what evidence actually proves, because more likely than not evidence will prove or rule out possibility that something has happened

[solidsnack9000]

...if you believe that the accused is affirmatively innocent, you have to believe that the accused is guilty.

This is not strictly or even practically true, but you acknowledge that later. When the defendant prevails in a court case, we don’t turn around and lock up the plaintiff.

You go on to say:

...a world in which all who accuse people of sexual harassment are effectively guilty-until-proven-innocent in the court of public opinion isn’t a great world, either.

If you replace “sexual harassment” with any other accusation, do you still feel the same way? With regards to the flaw in human thinking you mention — do we have to work with it for all kinds of accusations, or is it specifically a problem for sexual harassment?

[leereeves]

> false accusations are also a serious crime with serious penalties

False accusations of sexual assault or harassment rarely result in any penalties at all (even when proven false by strong evidence), and there's immense resistance to imposing such penalties for fear of discouraging legitimate accusations.

[greglindahl]

So, for example, if a business in my neighborhood has a sign that says "No hippies, Jews, or N?????s", I should continue to shop there until they get convicted by a court?

[solidsnack9000]

If you have concrete evidence, that’s enough.

What if the situation was, that someone told you they saw this sign one time? Would that be enough not to shop there?

[jeffdavis]

Of course not. You can make your own judgement based on the evidence you have.

I am standing up for the presumption of innocence when the evidence is lacking or in conflict.

[solidsnack9000]

Innocent until proven guilty (“the one who asserts must prove”) applies in courts because it is a fair standard — it’s not a standard limited to courts.

When we are in the position of having to determine if someone did something wrong, and what to do about it, we are faced with the problem of determining what is just and administering justice. The same basic rules apply to us, because we have the same basic problem: not allowing the tribunal or committee or even the court of public opinion to become another source of injustice.

[DanBC]

> Due process does indeed exist for a good reason, one of which is to prevent a situation where mere accusations have the power to destroy lives.

No, that's untrue. Innocent until proven guilty is only about the state's power to impose punishment. Innocent until proven guilty is used for even the most mild criminal offences where long term repercussions are unlikely.

A person's life can be destroyed in a civil trial where balance of probabilities, not beyond all reasonable doubt, is used. See all the parents who've been prevented from contact with their children because courts used balance of probabilities.

[skookumchuck]

The Duke Lacrosse case was a fine example of wrecking the lives of the accused, despite eventually being found completely innocent.

[rayiner]

And how many countervailing stories are there of womens’ careers being destroyed because the wouldn’t go along with sexual advances from superiors?

[iamnothere]

How is this relevant? Are you implying that we should be ignoring obvious injustices like Duke case, for the "greater good?"

Not sure what point you are making since all you did was ask a leading question.

[skookumchuck]

I'm interested. Produce one that was on the scale of what happened to the Lacrosse players.

[ggg9990]

That's the problem with not only this issue but many others like environmental pollution -- crimes are very hard to detect when the victims are numerous, and the damage is non-public. Needless to say there are many women who have been murdered for rejecting sexual advances.

[evgen]

Harvey Weinstein. More people suffered and to a greater extent, more money involved. If you didn't have the ability to Google up the Duke case you could not name a single person involved, but would have no problem naming some of Harvey's victims.

[iamnothere]

I think it's disingenuous to claim that actual victims of harassment haven't suffered as much as the Duke lacrosse players. As another commenter has pointed out, I'm sure there are cases where the situation has escalated to actual murder to silence the victim. Just as lynching has probably resulted from unfounded accusations in the past. People are awful!

Why do people have to take political sides rather than supporting actual truth and justice, regardless of who "wins" a particular case? It's infuriating.

[forapurpose]

I think these comments are exaggerated and misrepresent the situation, and no basis in fact is provided:

> the recent wave of "guilty until proven innocent" ...

> the media collectively decided that it was a good idea to promote abandoning the principle of "innocent until proven guilty,"

The stories I've read have done a good and careful job of corroborating and verifying their stories. Those that don't are subject to massive libel lawsuits like the one that shut down Gawker.

> smugly righteous

> hysteria

This is name-calling, which doesn't add to the discussion, and it's against nobody in particular, which makes it meaningless. Who, by name, is smugly righteous or hysterical? And do those people affect us? Are they representative or influential somehow?

[amputect]

> The stories I've read have done a good and careful job of corroborating and verifying their stories.

There are several good recent examples of this: - the project veritas employee trying to shop a false abortion story to the post - the schumer accusation that was shown to be falsified - weinstein's fake accuser that was planted by his own team to discredit investigations

When people come with false information, it gets found and reported on, because journalists do their due dilligence. News organizations are really careful about this kind of thing, because screwing up here is a really good way to get your entire org badly burned.

[grandmczeb]

News organizations aren’t immune from getting it wrong though. The Duke lacrosse case and Brian Banks are two prominent examples.

[eigenstuff]

The Duke Lacrosse case wasn't uncovered by journalists, though.

[s73ver_]

At the same time, having the victim's name plastered all over everywhere can't be good for them. Despite all the progress that's been made, we still live in a time where most victims would be blacklisted from the industry, despite nothing being their fault.

[maroonblazer]

I think the reticence of victims of sexual assault being identified has more to do with the taboos around sex that still exist, at least in this country. The cult-of-virginity and inequitable attitudes toward sex that come largely from the Abrahamic religions. I think we'll eventually outgrow that.

[QAPereo]

You would be just shocked at the “cult of virginity” in places as far from Abrahamic traditions as Japan.

[dominotw]

> something as serious as sexual assault

This article is about "sexual harassment" which isn't illegal according to federal law. You are conflating it with "sexual assault" which is a crime.

[astura]

https://www.eeoc.gov/laws/types/sexual_harassment.cfm

>It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature... Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

[gpm]

You're right, I wrote the wrong thing, they are substantially different things and shouldn't be confused.

It changes absolutely nothing about what I intended to say, sexual harassment is serious, it still goes through the court system, due process still applies, preventing it is good for the public.

[anon12345690]

I bet youll change your mind if/when you get accused, especially if its false. Guess you should hope that never happens then right?

[geofft]

This makes no sense to me. Especially if it's false? If I'm correctly accused, I hope I get what I deserve! This feels like saying, "I bet you'll change your mind about manslaughter laws when if/when you accidentally run someone over with your car." No, I'm pretty sure I'll be preoccupied by feeling terrible for killing someone.

And I understand that false accusations happen occasionally, and I am willing to take that risk because a world that insists on zero false positives has a ton of false negatives. It would be hypocritical for me to not accept the consequences if it happens to affect me - I am not advocating for others anything I could not accept for myself. But I can absolutely accept that if I am a visible leader of an organization, or a manager of people, or in some other role of trust, and I am accused of something I believe I didn't do, the best thing for me to do for the organization is to step aside. (It is not like I can guarantee that I will even live to see tomorrow, so anything that I care about, I should arrange so that my personal involvement is not critical.)

But more than that, it's entirely possible (though I have zero reason to expect it to happen) that some behavior I thought was reasonable will be seen by the world as unreasonable. And if that happens, I am happy to accept the consequences. My goal is making the world a better place, not making myself powerful/comfortable at the expense of other people. If removing myself from positions of trust to prevent my behavior from hurting the world is the right thing for me to do, why should I shrink away from it?

[anon12345690]

except we designed the justice system so that it's better to let 10 guilty people go than let 1 innocent person suffer

the rest of your comment just sounds ridiculous, hurting the world? im sure you realize not everyone else has the same attitude and arent going to throw away their livelihood because of a false accusation. that's not moral high ground, its just pathetic

[rectang]

This knife cuts both ways: you might change your mind if you were subject to sexual abuse.

"If a conservative is a liberal who's been mugged, a liberal is a conservative who's been arrested." -- Tom Wolfe

[wildmusings]

It's a mutually beneficial trade. The accuser gets paid, without having to go through the rigors of a trial, where the defense counsel will impeach their character and try to convince the world that they are scheming liars or worse. The accused gets silence, instead of having their name run through the press and assumed guilty by the angry mob.

Also, where did sexual assault come into this? Sexual assault is a crime. Sexual harassment isn't a crime at all; it's a civil wrong that exists only in the context of the workplace.

[vvanders]

It may be beneficial to each party but it sure as hell isn't what I want from my society.

A large portion of these events have come from men with money and power. Letting them pay their way out of this just means they get to go on perpetrating the same crime on other people. That's not an acceptable outcome for sexual harassment.

[greglindahl]

"Blood money" (a family forgiving a murderer in exchange for money) is a mutually beneficial trade, but is illegal in almost all countries.

[dominotw]

Telling some one a sex joke is a not a crime, killing someone is a crime.

Edit: Sexual harassment, as such, is not a crime under state or federal law in the U.S. Murder is a Crime.

Makes no sense to compare it to murder. apples oranges.

[geofft]

Creating a hostile work environment that constitutes discrimination on sex is absolutely, unquestionably, a federal crime, a violation of Title VII of the Civil Rights Act of 1964 (see Supreme Court cases Meritor Savings Bank v. Vinson, Ellison v. Brady, Oncale v. Sundowner Offshore Services, etc. etc. etc. - and Meritor and Oncale had no dissents, and Ellison only had one dissent from a justice who felt that the case should be heard before the Supreme Court to establish a stronger and clearer precedent).

I note that in your edit you have jumped from "killing someone is a crime" to "Murder is a Crime." Those are different things. Killing someone is, technically, not a crime. There are lots of cases in the US where you can kill someone legally (self-defense, fighting a war, administering the death penalty, being a cop who got scared, etc.). Murder is a specific crime because it's a specific set of circumstances around killing someone. Even manslaughter is a separate crime.

In the same way, no, "telling some one a sex joke" if you're a comedian at a bawdy bar, or in bed with someone you met on Tinder, or any such thing isn't a crime. Telling someone "a sex joke" in a way that creates a hostile working environment is a crime, as is allowing it to happen. And this article and this entire discussion is specifically about sexual harassment in working environments.

If you do not understand this or believe this, for your own sake, please seek actual legal counsel before telling any more sex jokes.

[otterley]

You should seek legal counsel as well, because it is clear that you are not an attorney (or, if you are, you should be disbarred for incompetence). The statue is clear; it plainly states the Government can only bring a civil action to enforce Title VII. Did you actually bother to read it?

As an actual attorney (this is not legal advice), I advise you to stick to what you know.

[dominotw]

> for your own sake, please seek actual legal counsel

[wildmusings]

You are 100% wrong. Sexual harassment is EXCLUSIVELY a civil cause of action. It is NOT a crime, end of story. It's honestly baffling that you could have looked at any of those cases and not known you were looking at a civil case.

[greglindahl]

This discussion is about more than just "telling some one a sex joke".

[dominotw]

yea but you are comparing something thats considered crime by federal law to something that isn't.

Commiting a crime is illegal, sure. I don't understand what you were implying then.

[ggg9990]

Less money for victims is a GOOD thing. One of Bill O'Reilly's victims got $32 million for a confidential settlement, which teed up the next victim as a near-certainty.

[walshemj]

Why do you think this will lead to less money? And the OReily case didn't go through employer forced arbitration

[jeffdavis]

"An allegation of harassment, without further evidence, is not going to fare well in court."

Then why should it fare well in other contexts?

[taneq]

I don't think parent poster is saying that it should. Instead, I think they're saying "without confidentiality clauses, high-profile targets are less likely to pay hush money to smooth over false accusations, leading to a reduction in false accusations."

(I initially read it the same way you did.)

[walshemj]

it wont as I read it, the bill was only to stop enforced arbitration