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Phi Beta Cons

The Right take on higher education.

The Presumption of Guilt



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Today’s Chronicle of Higher Education contains a must-read column by the pseudonymous K. Josef relating his experience with a false accusation of sexual harassment. In his case, a student had sent e-mail messages to an address she thought was a professor’s, the recipient responded with lewd and inappropriate comments, and the rush to judgment was on.

The e-mail trail became proof of misconduct, the prof’s dean gave him a tongue-lashing, and the professor was instructed to sign a contract agreeing to seek “psychological treatment.” Fortunately for him, he was able to quickly establish his innocence, but no one (other than the student who in good faith made the complaint) apologized. Reflecting on the incident, “K. Josef” notes:

Since then I have frequently taken note of other incidents in which there is a rush to judgment regarding men (typically) who are accused of sexual harassment; I used to react the same way myself. That rush to judgment probably stems from the fact that instances of sexual harassment are known to be both common and underreported, so we assume that when an accusation does get made, it must be accurate.

But such an assumption is morally sloppy. The criminal-justice system may be founded upon the presumption of innocence, but on the street or the campus, we are less committed to suspending judgment until all the evidence is heard. Such impulsiveness can result in disastrous misjudgments, and any misjudgment compromises the quality and integrity of the procedures we all rely upon to adequately deal with sexual harassment when it does occur.

All this is true, but I have one quibble. Why do we assume that sexual harassment is “common and underreported”? From what we see in response to discovery requests in speech-code litigation, on university campuses, sexual harassment seems to be overreported. In other words, large numbers of incidents are reported as harassment that are not harassing at all. Why is that?

On all too many campuses, the only necessary proof of harassment is whether a person felt harassed. So the report is the proof. Yet this turns sexual-harassment law on its head. In the real world, for harassment to be actionable, it must be both felt (i.e. “unwelcome” — even the worst behavior isn’t harassment if it’s welcome) and real (i.e. so severe, pervasive, and “objectively offensive” that it “so undermines and detracts from the victims’ educational experience [that he or she] is effectively denied equal access to an institutions resources and opportunities”).

This is a high standard that allows for hurt feelings, morally ambiguous (or even reprehensible) comments, and quite a few angry words. In other words, it is a standard completely compatible with the rough-and-tumble marketplace of ideas. It is a standard that is incompatible with a rush to judgment.  

Accusing someone of sexual harassment should be serious business. Committing sexual harassment is serious business. Neither justice nor liberty are served when universities water down both the proof and the offense.



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