Whose Problem Is It? (Guest Post by Heidi Lockwood)
Heidi Lockwood is associate professor of philosophy at Southern Connecticut State University, where she focuses on questions in logic, metaphysics, and epistemology. She also works on issues in the philosophy profession, particularly regarding the treatment of women (see this post for example). She kindly authored the following guest post* on the issue of whose responsibility it is to address some of the problems the profession is currently grappling with. Comments welcome.
A true story: Philosophy Professor X, who taught at University Y, engaged in unwanted sexual contact with Student A. After learning that Professor X had also allegedly engaged in sexual misconduct with Students B and C and possibly D, Student A decided to file a formal complaint, in the interest of protecting future students and doing the right thing and justice and all that lofty stuff. University Y found Professor X guilty of sexual misconduct, and, for various non-transparent but predictable reasons, decided to quietly offer Professor X a non-disclosure agreement and an attractive voluntary severance package. Professor X got by with a little help from his academic friends, and rode his golden parachute to University Z, where he met Student E, with whom he had non-consensual sex.
Professor X, in other words, is a serial sexual predator and rapist who has managed to adversely impact the academic careers (and likely much more) of at least four students (and likely many more). His behavior, arguably, has been sanctioned by higher education.
But who, we might wonder, is “higher education”? His academic friends? The University Y administrators who gave him the golden parachute? The University Z administrators who failed to investigate his reasons for departure from Y? The students who didn’t file grievances? The untold number of ostrich-colleagues who were dimly aware of the problem but figured it’s none of their business? The APA or other organizations in the discipline? The Department of Education?
Professor X’s serial predation is not unusual behavior on college campuses. Most (90-95%) of the sexual assaults on campus are committed by just 4-6% of the rapists, who commit an average of 5-7 rapes each (see, e.g., Lisak’s 2002 study of more than 1800 college students). Serial sexual offenders are a pressing problem. But who should be responsible for addressing it? Here are a few of the answers I’ve seen bouncing around in both the open airways and shadowy underbelly of the cloud, where folks are tweeting, messaging, and blogging about the question:
Not the Universities:
The fact that most universities have an abyssmal track record at dealing with sexual assault and misconduct – though not a new phenomenon – has been in the headlines almost every week for the past six months in the U.S. Last week, for example, the Senate Subcommittee on Financial and Contracting Oversight released the results of an investigation showing that, despite the fact that 67 universities are currently the subject of Title IX investigations, more than 40% of universities in the U.S. have not conducted a single sexual misconduct investigation in five years; 21% fail to provide Title IX-mandated training to faculty and staff; and 31% provide no training for students. And earlier this week, the New York Times published a front-page article about a typical but particularly graphic university investigative failure. These and many other stories provide a compelling argument for the thought that universities are simply not equipped to shoulder the burden for rectifying the situation alone.
Of course, there are those who disagree. At a Q&A with Department of Education Assistant Secretary for Civil Rights Catharine Lhamon at Dartmouth’s Summit on Sexual Assault earlier this week, attendees argued that campus judicial systems are not designed to address misconduct as serious as sexual assault. Faculty and staff tribunals, after all, often do not have the disposition or experience required to conduct effective and safe investigations – and universities often have compelling business reasons to keep an offense quiet, particularly in cases in which the offender is an athletic or academic asset. Lhamon disagreed, insisting that addressing sexual assault on campus is “fundamental to the role of education.” University police and universities are responsible for creating an environment safe enough for teaching and learning. They don’t have any problem dealing with theft, plagiarism, hacking, or any other crime in the panoply of human offenses. Why should they balk at being asked to respond to sexual assault?
Not the APA:
The American Philosophical Association has taken some laudable steps to address issues in the profession, forming the Committee on the Status of Women and a climate assessment team who will conduct by-invitation site visits. More recently, they have also responded to a petition launched by Eleonore Stump and Helen De Cruz calling on the APA Board of Officers to issue “a code of conduct and a statement of professional ethics for the academic discipline of philosophy.” However, as several philosophers pointed out in this July 15 IHE article – and as the APA Board of Officers themselves would, I think, concur – the APA does not have the resources or the legal standing to adjudicate what some Board of Officers members describe as “disputes between individual members.”
More generally, disciplinary organizations are arguably not the ideal vehicles for inter-university prevention and enforcement of sexual misconduct issues. Many problems, after all, fall outside a particular academic field. Which discipline would be responsible for the prevention of the sexual assault of one undergraduate student by another, or the misconduct of a perpetrator who does research in interdisciplinary areas and moves from one discipline to another?
Not the ostriches:
As one colleague complained to me earlier this month, “I’m sympathetic to the issues, but it’s not my problem! I can’t maintain a world-class research program and give the issues my full attention. I’m a philosopher, not a counselor or civil rights activist or public servant.”
I don’t agree that issues in philosophy are not philosophers’ issues – but I do agree that it’s not appropriate to rely on activists and volunteers to fix the problem. The problems we’re dealing with, after all, are serious. An untrained activist or amateur investigator can do more harm than good. And, as the suit filed against a faculty advocate for a complainant last month reminded all of us who (continue to) provide support for victims, attempting to redress wrongs can have serious consequences.
So, if the problem of sexual misconduct on college campuses – and particularly the problem of serial predators who move from campus to campus – is not ideally addressed by individual universities, disciplinary organizations, or faculty members, whose problem is it?
I’m curious to hear what readers think.
Surely it’s everyone’s problem? Individual academics and students cannot of course be expected to single-handedly end sexual abuse, both because they’re not trained to do so and may mess up and because there are other demands on their time. But I can’t express strongly enough my disgust at the pitiful excuse for cowardice which is one interpretation of your colleague’s complaint. Of COURSE we have an obligation to stand up for basic justice and equality! Of COURSE we have an obligation to be aware of our society and not let rape pass under our noses! Your colleague, as I interpret his/her complaint, seems to think that maintaining a world-class research programme is more important than making sure that no unpunished sexual assault happens on his/her watch. But that is such an utterly perverted prioritising of values that I would like to strip him/her of the title ‘philosopher’.
But as you said, philosophers cannot do the work alone. What we can do is put pressure on universities and the APA (which is comprised, of course, of philosophers) to create structures that allow the issues to be dealt with more seriously and sensitively: I don’t see any reason, for instance, why hiring committees cannot be informed of sexual misconduct on the part of the job applicant when he/she was working in another discipline.
James, I appreciate the strength of your reaction to the “not my problem” response from my colleague. Although that particular comment was unusually explicit and honest, the view is very common. Ostriches greatly outnumber the advocates and even the perpetrators in our field. I’ve been asked by journalists several times in the past year if I have any thoughts about why *philosophy* is such a hotbed of problems for sexual misconduct, and have refrained from responding — but, if pushed, I’d probably point out that philosophy gives us the tools to justify almost any behavior, and that there is something rational, albeit arguably unethical, about the behavior of the ostrich (who actively avoids knowledge of a problem) or bystander (who knows about a problem but fails to intervene).
(Another true story, this time about the ability of philosophers to justify questionable behavior: in fall of 2007, I was agonizing over decision involving a contract. I turned to a faculty adviser at dinner one night and said, “I’ve got an ethical dilemma.” “Oh,” he replied earnestly, “well, I’ve got a solution.” I opened my mouth to object that he couldn’t possibly have a solution if he didn’t yet know the horns of the dilemma. Anticipating that I was going to tell him something he didn’t want to know, he continued quickly. “You weren’t going to kill two children, were you?” he asked. I shook my head. “Well, then, just donate a $100 to Unicef and do what you were going to do.” I’m not a utilitarian, but the philosopher I was talking to is an epistemologist, and I knew full well that we could cook up a good argument for the will to believe. So I willed myself to temporarily believe the requisite utilitarian principles, donated $100 to Unicef the next morning, and signed the contract.)
With respect to your perceptive remark about putting pressure on universities or other governing bodies in higher ed to create structures to solve the problem: yes, I agree that the solution to serial cross-university predators is going to involve creating a structure that doesn’t currently exist. The legality of informing hiring committees of sexual misconduct is a very squirrely area in labor law at the moment. *If* the sexual misconduct was the subject of a formal hearing, and *if* the victim was informed in writing of the result (which often does not happen), and *if* the victim is willing to share the information (and has not been persuaded or coerced into signing a non-disclosure agreement), and *if* there is an activist who is willing to assume the potential legal risk, then, yes, the hiring committee can be contacted. In fact, I know of one group of activists who are currently playing a game they irreverently call “whack-a-mole” to try to prevent a known harasser from “popping up” at another institution. But of course there are many many cases that don’t meet these stipulations. And then there are the student serial offenders, who move from university to university…
What I think *would* be a potential solution — though the devil is in the details — is for a consortium of universities to create an inter-university office of Ombuds, a sort of appeal system and/or support system for the existing university structures. But this is an initiative that would need, I think, to originate with the leaders — the presidents and chancellors — of the universities in the consortium.
Maybe I was unclear: When I said he/she should be stripped of the title ‘philosopher’, I didn’t mean that he/she should be sacked, but that he/she has lost sight of the wisdom that is supposed to be what philosophy is all about. He/she has found ways of using philosophy to justify anything, in the manner you say: but this is sophistry, and abhorrent, because it makes such wilful moral blindness as your colleague evinced possible. The evils ‘justified’ are not, of course, actually justified, and (one reason) why philosophy is so important is that it gives us the tools to see this; to use philosophy to make it even harder to see this is thus really an especially low activity, especially with regard to such matters as in the present discussion.
But anyway, this is digressing towards ‘what philosophy is’ a bit more than it should in this thread. Apologies. Regarding your other point: I think I was mistakenly assuming that all universities’ sexual problems are also illegal and reported and convicted and so on; of course you’re right that only a tiny fraction are. I don’t have any better ideas than your own.
But let me speculate about the original question a bit more, which I’ve been puzzling over. I wonder if it’s in fact two questions. First, there’s the question we ask our own selves: ‘I know nothing’s been done about this evil, that it’s going to go on if I don’t make a stand; Ought I make a stand?’ In the case of sexual abuse going on in one’s own department I take it the answer is emphatically yes. We cannot say, ‘Oh it’s the university’s responsibility’ when we know the university will do nothing. (I think this is how I initially interpreted your question.) So in one sense, sexual misconduct is always all of our problems, individually. But this inward-looking answer isn’t helpful when we’re trying to raise awareness in others or ask them to do things that for whatever reason we cannot do. We have to be able to say publicly “This is X’s responsibility and X is culpable for not meeting it”. The answer to this question will depend much more on empirical facts about what works (how malleable motivations are, what structures can fit into existing structures, what is cost-effective, what is corruption-proof, etc.), and is not something we can answer here; although we can certainly start answering it, as people are doing in this thread. (Sorry if this is totally obvious, but I at any rate was confused till I made the distinction.)
Prima facie it seems to me that if any individual has knowledge of a rape then she has an obligation to report it to the criminal justice system. (I say ‘prima facie’ because I can imagine a scenario in which the victim doesn’t want this to occur, and others will have thought through more than I have what the obligation to report is in this case.) If the university hushes up a rape by a member of the campus community then I would assume that this also puts them in violation of the Clery Act, although I’m no lawyer.
The Clery Act requires that universities (in the U.S.) maintain a crime log, disclose annual crime statistics, have a policy to deal with missing students, etc. — see, e.g., http://clerycenter.org/summary-jeanne-clery-act. Both Title IX and the more recent VAWA/Campus SaVE Act require, among other things, that universities provide training for all members of the campus community, and that university employees including faculty direct victims to the appropriate office to report, do nothing to discourage the victim from reporting, inform the victim of the right to report to police, etc. Unfortunately, however, none of the current laws require that the allegation be investigated if the victim does not want to file a formal report — and I don’t know of any universities (or, for that matter, police departments) who will investigate if the complainant does not want to pursue the matter. I don’t know of any law that would *prevent* a university from initiating an investigation on behalf of a 3rd party, but doing so is extremely unusual. In fact, I know of a case in Europe at the moment in which the philosophy faculty in a particular program *want* a case of known sexual misconduct by a colleague to be investigated, but have not succeeded in getting the university to investigate because the victim does not want to report. (The allegation in this case is that the victim was deeply traumatized by the misconduct, but does not want to come forward, in part because she accepted various offers of “support” from the perpetrator in the aftermath of the incident, and does not want to be subject to further judgment and trauma.)
As you correctly note, Dale, there are many scenarios in which the victim may not want to report. In my experience, there are many more victims who do not want to report than victims who do — and those who do report are often re-traumatized by the process, particularly if it involves what Jennifer Freyd’s research group calls “institutional betrayal.” (See, e.g., http://uonews.uoregon.edu/archive/news-release/2013/3/institutional-betrayal-magnifies-post-trauma-effects-unwanted-sexual-act, or http://dynamic.uoregon.edu/jjf/articles/sf2013.pdf) To be rawly honest, though it is a violation of Title IX to discourage victims from reporting, it is also difficult to positively encourage them to report at universities where the investigative procedures are so horrific that you know it’s likely they’ll be re-traumatized.
I was actually thinking of the timely warning requirement of the Clery Act. If the alleged rape occurred on campus, at least, why wouldn’t the university have an obligation under the law to issue a warning to students? I’m not sure if a final determination has been made about whether Penn State’s failure to issue such a warning in the Sanduskey case violated the Clery Act, but this point was under investigation.
It’s true that in many cases victim’s do not want to report, and I realize this is complicated in all sorts of ways. However, it’s also true that even in cases where victim’s do not want to report, failure to report means others are at risk. This is a huge part of why I think every single person in a department (student, staff, faculty, everyone) is responsible for doing something, and the academic community as a whole is responsible as well. Often, when victim’s don’t want to report it’s because they don’t want to go through the horrible process of being betrayed, abandoned, or having the worst moments of their lives gossiped about, second guessed, and so on. We have a responsibility to support them, to not live up to their fears — and we have a responsibility to protect others from future victimization.
That said, even when people *do* want to report, too often the response is to look the other way. I know of at least two cases of sexual assault (note: assault, not mere misconduct) that were reported within one department (albeit about ten years apart) where the faculty to whom it was reported did nothing in response.
(This is in response to Anon 5:59) While faculty certainly shouldn’t ignore reports of sexual assault if they get them, they also aren’t the appropriate people to whom to make such a report. A sexual assault should be reported to the police. What should prevent Professor X from going to University Z isn’t that Z catches wind of his prior sexual misconduct. What should prevent Professor X from going to University Z is incarceration.
As several of you have pointed out, there are many reasons why a victim would not want to come forward. As Professor Lockwood said, the process is so horrific that victims are likely to be re-traumatized if they go through it. But in the wake of a recently filed lawsuit, it seems that the consequences of coming forward might be even worse than many of us had thought. It turns out that, in addition to everything else they must go through, people who file complaints against faculty members might be sued for defamation by the person against whom they filed a complaint. Does anyone know whether there is any precedent for this sort of lawsuit? And if this lawsuit isn’t dismissed, what would the legal implications be?
(This is in reply to Dale @7:18) Dale, I agree that ideally sexual assault should be referred to criminal investigators, but the world is not ideal–and there are just so many circumstances in which reporting to the police is far worse for victims than reporting to a university is. But, regardless of whether anyone reports to the police, faculty have a legal responsibility to respond anyhow. Since university’s are obligated under Title IX to not maintain a discriminatory environment, and since sexual assault constitutes a form of sex-discrimination, university’s (in the US) must have policies prohibiting assault, and and must deal with cases of assault when they arise–so faculty are, in that regard, appropriate persons to report to. Victims certainly have a right to report to the police in addition to reporting to their universities, but this should not be an either/or situation.
Hi Heidi,
I’ve spent a lot of time mulling over these type of questions, and I don’t believe the requirements/risk burden is quite as high as one might read from your words.
Truth is generally a complete defense to defamation unless disclosed negligently in limited situations. If a person with limited details of the truth, for example, a person who knows generally “a student [or faculty member] raised a disconcerting sexual misconduct complaint regarding A faculty member at X university” without further detail, I am not aware of any formal bar to contacting B university that is considering hiring A faculty member in good faith with such information. If the person raising relevant information knows the statement to be truthful and raises it in a limited forum to persons of interested authority with a purpose of community health and safety, the legal risk to that person raising it seems quite low. In my view, raising such knowledge in many cases can induce B university to make some form of follow-up inquiry independently or directly with X university, and this at minimum creates a record of prior information, however limited, should more formal complaints of a similar nature follow; alternatively it serves as a diligence function to clear the hire to proceed. I assume B university is conscious of related liability exposure vis a vis known risks, particularly with the uptick in Title IX and Clery Act enforcement. Of course, with more elaborate detail and confidence in the truthfulness of any information provided, the more impact this mechanism could carry. Furthermore, a hiring committee is unlikely the sole interested party at B university although it may be the most obvious to members of the academic field: human resources, Title IX offices, and other administrative bodies have a vested compliance and risk management interest in a prospective hire within bounds of labor laws and procedural requirements.
This is only my casual, non-professional opinion put in generic terms, and I’d recommend running it by someone with more specific legal expertise in this area if it’s of interest. My underlying belief is that there are ways to convey important information of this sort without running up against all of the strict requirements you raise.
Would it help in these cases if university disciplinary organizations were more able to share information about Professor X’s past offenses?
Yep. Provided, of course, that the hiring committees bother to solicit the info.
Again, a few case studies might be helpful in understanding the scope of the problem:
1. I know of one case in which a philosophy department chairperson was explicitly and unambiguously warned that a senior philosopher who was being courted by the program had been found guilty of sexual misconduct at another university. The chairperson opted to ignore the warning, reasoning that the offense occurred a “long time ago” (about ten years prior), and that “one should not hold a single offense over an offender’s head indefinitely.” Within 3 years of the hire, a formal report of sexual misconduct was filed at the offender’s new university, and the faculty member was found guilty of “unprofessional conduct.” The victim was reassured that a letter would be placed in his HR file — which, as others have pointed out in the comments here, is not accessible (even to the chair of the department). He continues to teach at the university that opted to ignore — and has failed to investigate — his past (and now current) track record of alleged sexual misconduct.
2. In another case, a graduate student raised concerns about the fact that a senior candidate for a faculty position had dated an undergraduate at a previous institution. The hiring committee discussed the problem (both in person, and via email), and decided not to investigate further, reasoning in part that even if there had been issues at previous universities, faculty would be unlikely to have access to the verdict (due to concerns about the privacy of the victim, or due to the non-disclosure agreements that are often signed with the offender), and administrators would be unable to share the verdict (due, again, to the NDAs). Within two years, there was a formal report of sexual misconduct at the hiring institution.
3. In a third case, a student who was dismissed from two universities due (informally) to widespread concerns about misconduct was admitted to a third university. Members of the campus community at the third university are now concerned about alleged instances of continued misconduct. Faculty members at the third university are perplexed, and say that they contacted faculty at the second program prior to admitting the student, and were not given any information that would have led to rejecting the student’s application. Faculty members at the second university are equally perplexed, and insist that no member of their department would have hidden the truth.
In the first case, a philosophy department hired a philosopher (and oh by the way refrained from hiring the philosopher who issued the warning) despite being warned about previous documented sexual misconduct. In the second case, a hiring committee hired a philosopher despite concerns that were raised by a graduate student about possibly inappropriate behavior. In the third case, an admissions committee was allegedly given erroneous or at least incomplete information about a candidate’s history at two previous institutions.
In all three cases, the results have had a profoundly negative impact on specific female students. Among the severe “casualties” of these three cases — i.e., PTSD, anxiety, depression, attempted suicide — I would count at least nine students. The total number of women who have been directly affected by these three particular cases is at least 18. And the total number of students who have been affected by environmental issues, retaliation, silencing, etc., is incalculable.
Wow. Thanks for posting this.
There are two challenges for revealing sexual predators: 1) university personnel files are confidential. If a university employee shares information in those files, s/he is libel. This prevents employees at one university from sharing information about the sordid history of one of their employees to prospective employees at another university. (At least, this was true when I talked to a university lawyer about this a number of years ago. Someone can perhaps correct me if this has changed.) 2) Victims have *enormous* incentives for staying quiet.
There is something, though, that I think some of us could do. Sexual predators have colleagues, some of those colleagues are their friends, or at least respected acquaintances. While colleagues can be in the dark about what their cohorts are up to, in some of these cases, it is known that a faculty member is having serial relationships with students. Some of us are completely shameless, but most of us care about our reputations–at least our reputation among people that we respect. In those cases, I suspect that a simple “what are you *doing*?” from a respected colleague could long way to making a difference. If you are a respected senior colleague of such a person, you should not underestimate the difference your vocalized opinion could make. It’s not true that “this is not your problem”. This is everyone’s problem.
Well, it’s only libel if it’s false. There is possible liability for disclosing true information under various laws like HIPAA, state torts like false light (misleading disclosure of facts), etc., but in general saying something like “We determined Professor X had sexually harassed his student and he was asked to leave” would not be libel if it’s true.
Drew, are you suggesting that someone who has had the contents of there personnel file disclosed to someone not employed at the same university has *no* grounds for legal redress? A university lawyer in the early 90’s told me otherwise and I know of a dept chair in around 2005 who was warned by administrators against doing this, on legal grounds. In both cases, I personally knew some of the victims and there is no question about the accuracy of the complaints. I will be extremely surprised to hear that labor laws have changed since then–do we have any experts in labor law reading this thread?
Jan, while I do not consider myself an expert, I am a civil litigator who has worked a good deal in labor and employment law.
I absolutely do not suggest they have no possible grounds, which is why I specifically said there could be some liability under things like HIPAA. However, if the statements are accurate and not misleadingly so (for example, disclosing a fact that is true in itself but suggests a falsehood in isolation), then there is no liability under defamation, at least against the person disclosing. There also might be some breach of contract action against the school itself if there was some contractual right of privacy, but that would not be maintained against the person making the disclosure (like your department head), and it wouldn’t be for defamation. If it’s a public university some other laws might come into play that would give more privacy protections to the accused faculty member, but again that would not be under defamation. In fact, some states specifically protect entities who give truthful information about their employees or former employees to other prospective employers (e.g., http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2073&ChapterID=58).
From the point of view of the university lawyer, a few things might have led him or her to say that it would be defamatory:
1. If these disclosures happen on a continuing basis concerning different employees, eventually someone would say something actionable, and the university lawyer probably does not want to have to monitor every disclosure to stop the defamatory ones; easier just to tell everyone not to say anything.
2. To file a lawsuit you need a couple hundred bucks and a piece of paper to write on. Defending even meritless lawsuits costs time and money.
3. University lawyers are usually not litigators, and the idea of going to court can freak some of them out, especially since their job may be judged on how effectively they keep the university out of lawsuits.
4. It’s entirely possible they just don’t understand the nuances of defamation law.
My sentence:
“However, if the statements are accurate and not misleadingly so (for example, disclosing a fact that is true in itself but suggests a falsehood in isolation), then there is no liability under defamation, at least against the person disclosing”
Should end with a period after the word defamation; there’s no liability for the university either in this basic fact pattern.
Thanks for your comment below, Drew; that’s very helpful. (Posting here since there isn’t a reply button on my screen below your last comment.)
No problem, and I think you really hit on the more important issue of the right of the student (moral, if not necessarily always legal) to have her (or his) privacy protected. It’s something that I myself frequently don’t consider enough when I’m thinking about these issues.
If you suspect that your colleague serially dates undergrads, you have to tread carefully in saying something: addressing a colleague about their sex life might itself be construed as sexual harassment — especially if they are clearly discomfited by the topic, and especially if the goal is to shame or embarrass them.
It would be sexual harassment to ask a colleague why he is treating his students as his dating pool? That is Kafkaesque.
I suggested that it might (not would) be construed as sexual harassment to address a colleague about their sex life. Or, as Jan precisifies it, “to ask a colleague why he is treating his students as his dating pool.” Consider: a number of universities provide lists of potentially harassing behavior, some of which include commenting on someone’s sex life. Here are three examples:
– Ohio State University. “Inquiries and commentaries about sexual activity, experience or orientation.” http://hr.osu.edu/public/documents/policy/policy115.pdf?t=20147252306
– University of Miami: “remarks about a person’s sexual activity or speculations about the previous sexual experience of that person.” https://umshare.miami.edu/web/wda/facultysenate/FacultyManual.pdf#page=105&view=FitB
– Princeton: “Asking about a person’s sexual fantasies or sexual activities.”
http://www.princeton.edu/main/administration/policies/Nondiscrimination_Anti-Harassment-Policy-and-Complaint-Procedures.pdf
Now if a senior faculty member addresses their new junior colleague about that junior colleague’s dating pool (suspecting it to include students), would this not fall under “inquiries and commentaries about sexual activity” (OSU) or “remarks about a person’s sexual activity” (Miami) or “Asking about a person’s sexual fantasies or sexual activities” (Princeton)?
My main piece of advice is this: tread carefully. If you plan to address a colleague about their dating pool, call your university’s sexual harassment officer to get advice on how appropriately to broach the topic. Be careful. Don’t pry into your colleague’s dating life too deeply, because, yes, that might just be sexual harassment itself. (Imagine a colleague prying into your own dating life, in a disapproving and admonishing tone.)
Hi Heidi: A couple of thoughts. You suggest that the problem is not *ideally* addressed by any of the parties you mention. To this, I want to say: given we live in a nonideal world, the question of who should ideally address the problem is a bit of a red herring. All parties need to do their part.
Second, given that (1) universities, faculty, have strong conflicts of interest (i.e. vested interests), and (2) sexual assault and harassment are *crimes*, I want to say that that the primary responsibility here lies with the criminal justice system. Sexual assaults and harassment should be reported to universities, but they should not be adjudicated by them. Crimes should not be adjudicated by kangaroo courts. They should be dealt with by real ones.
I agree that crimes should be addressed primarily by criminal courts. Some of what is being discussed here (rape and sexual assault, most clearly) is criminal conduct. If one has knowledge of such behavior I agree that one should report it to law enforcement. Some of what is being discussed here may or may not be criminal conduct depending on further details. Some of what is classified as sexual misconduct by some universities is certainly not criminal behavior. For example, sexual relationships between faculty and of-age university students are not criminal anywhere so far as I know but some universities prohibit such relationships.
In one example given above, “serial relationships with students” are mentioned. If such relationships don’t violate the law or university policy where the faculty member works one could still say something if one disapproves. One might instead or in addition attempt to change the relevant university policy.
Hi Marcus: Yes, I agree; the world is not ideal (a very important point!) and so all parties need to do their part. I sure wish I could make that happen. For what it’s worth, faculty who are in a position to act sometimes have good reasons not to. In one of the more egregious (and documentable) cases of misconduct that I’m dealing with right now, I emailed two members of the philosophy faculty in June, to request support in encouraging the university to investigate. One replied with a terse response saying he’d continue to do what he could. Another didn’t reply at all. (These are colleagues I know well, not strangers.) And a third told me that the faculty were told at a department meeting this spring that: (1) they can’t be told anything about the allegations; (2) they are not permitted to talk to anyone aside from immediate family about the case; and (3) they’re also not permitted to talk to anyone about the fact that they’re not permitted to talk, or the fact that they don’t know anything. (Freedom of speech is apparently trumped by the interests of the corporate university.)
With respect to the point that crimes should not be adjudicated by kangaroo courts — YES. BUT whether sexual harassment is a felony, misdemeanor, or merely a civil violation in the U.S. varies widely from state to state. In the event that it is merely a civil violation, it often must rise to the level of being severe or pervasive in order for it to be worth pressing charges (i.e., a strong enough case for an attorney to agree to take it on a pro bono or contingency basis).
So, for example, let’s imagine that a male philosopher goes out a bar with a senior female colleague who has a little too much to drink and suddenly initiates unwanted sexual contact. To make this explicit, let’s imagine that she rubs his leg under the table and fondles his private parts despite his attempts to push her hand away. (They are with other senior colleagues who will be evaluating his P&T file next year, and he does not want to make a scene.) He can report the case to a university court — but cannot press charges with the police, and would not be able to retain an attorney to press civil charges if there have been no other incidents. In other words, the there is a lacuna that does in fact need to be filled by *some* employer-based review system. Does this make sense?
I’m unaware of significant variation from “state to state” of the sort you mention but perhaps that’s my error. As I understand things, whether sexual harassment is a criminal or civil issue varies primarily with the specific actions involved in the harassment. For example, harassment that involves unwelcome touching can be charged criminally as battery (with felony or misdemeanor classification determined centrally by the severity). Obviously other kinds of sexual harassment fall under criminal categories as well — including but not limited to felony sexual assault. Many of the other examples in this discussion would fall under the general heading of non-criminal law. Depending on the overall context in which the harassment occurs, the issue might be an issue of employment law but might also fall under various other non-criminal categories.
Thank you for posing these important questions. Regarding hiring, do you know if it would be legally possible to make it a standard part of the hiring process to ask all of the candidates whether they have been investigated for sexual misconduct? (And then to ask them to elaborate if the answer is affirmative?) I ask because, even though student violations of academic integrity are usually confidential matters, the application for our graduate program asks these questions anyway. It is, of course, possible that applicants will lie in response to these questions, but this (I assume) would be grounds for termination from the university if it later came to light–e.g., in the course of investigating another offense. This would not, unfortunately, prevent all future occurrences, but it would make it easier to deal with future occurrences in a decisive way.
Thanks, Baron — this strikes me as an *excellent* idea — for all hires, and admissions at both the undergraduate and graduate level.
I heard a faculty member at Rutgers proposed a policy along these lines, but haven’t heard whether the proposal was successful…
It would be highly contentious, but the APA could play a role by terminating membership of philosophers who are found by the APA (perhaps, but not necessarily, on the basis of university investigations) to have engaged in sexual misconduct. This would require the APA to install a committee (whether ad hoc or permanent) to investigate incidents at the request of any alleged victim. Of course, not all undergraduate victims would be aware of this avenue of remedy and it would seem a requirement that the victims request the investigation, so this approach has limits. No one has an absolute right to membership in a professional society, and any such society can make ethical professional conduct a condition of membership. Hiring committees could easily check if a candidate is an APA member, and, if s/he isn’t, questions would arise.
I’d be really interested in hearing from a member of the APA Board of Officers about why they characterize allegations of sexual misconduct as “disputes between individual members” — and why they think the APA shouldn’t be involved in determining whether or not a member has violated the code of conduct (assuming a code of conduct is eventually adopted). The American Psychological Association has a fully developed code of ethics, and fine-grained rules and procedures for investigating complaints: http://www.apa.org/ethics/code/committee.aspx#partvcomplaints
I’d echo what others have been saying in that the burden should fall on the criminal justice system. If professors–or anyone else–engage in criminal activity, then they should be prosecuted and convicted. I don’t see what makes universities “special” in this way, say as against corporations. The other worry with not pursuing criminal justice is that so much of the conversation we have happens on blogs and through innuendo, which is a completely different standard–and carries a much higher probability of wrongful “convictions”. And then of course, alongside criminal process, there should be civil suits as well. But I’d just say focus on prosecutions and damages, which should both fix the process and hold it to a higher evidentiary burden.
In what other aspects of our life do we put the entire burden of policing behavior onto the criminal justice system? If you have inconclusive reason to believe a teacher at your children’s school is abusing students, do call the police and leave it at that? If two of your friends get a divorce, and one of them accuses the other of harassment, do you keep inviting the harasser to your cookouts until something can be proven in court.
I agree that innuendo and internet chatter is a poor basis for professional ostracization. But saying ‘it’s the police’s problem, not ours’ is clearly insufficient.
I disagree, and so does the law on this matter, at least as far as universities in the US go. Victim’s should not be forced to go through the criminal justice system if they do not want to (particularly because the criminal justice system often handles these sorts of cases even more abysmally than university processes do; see here: http://www.dailymail.co.uk/news/article-2623071/Judge-imposes-new-terms-Texas-rape-case.html and here: http://www.washingtonpost.com/news/morning-mix/wp/2014/05/20/man-who-repeatedly-drugged-and-raped-wife-wont-serve-a-day-behind-bars/ and here: http://www.huffingtonpost.com/2014/03/30/robert-richards-rape_n_5060386.html and so on). But, university’s should be required to maintain non-discriminatory environments and part of that is dealing with complaints of sexual harassment and sexual assault.
I should also note, that the reason evidentiary standards are lower in university proceedings than they are in criminal proceedings is because (like in civil proceedings vs. criminal proceedings) the stakes are lower. Expulsion from a university or being fired from one’s job is not as serious of a consequence as is imprisonment.
Another thing I was thinking about in this regard–and as pertains to a professional interest in legal epistemology–is what should we think if someone is prosecuted and acquitted. So just grant that a jury wasn’t convinced, beyond all reasonable doubt, that the professor was a rapist, all the blogosphere notwithstanding.
Should this professor be terminated from his position? (Setting aside tenure, etc.) Should offers at other places be revoked?
Or even take the civil analogue and say that jury wasn’t convinced, to a preponderance of the evidence, that the professor acted tortiously. Same questions.
It’s just not obvious to me that, absent any criminal or civil liability–for ostensibly criminal and/or tortious actions–there should be social repercussions of the sort these professors face. To put it another way, how could–in principle–they go about “winning” in the court of public opinion? It basically seems impossible, that the allegations are tantamount to a conviction.
This isn’t to take a stance on whether they did anything wrong–maybe they did. But, procedurally, I think there are all sorts of interesting issues. Apologies, btw, if this is off-topic, but it’s just what I was thinking about vis-a-vis some of these responses. Well, and more generally if the “policing” is supposed to come extra-judicially, so maybe it’s on-topic after all.
The problem is there is a host of inappropriate behavior that hurts departments and students that is not illegal and could not be remedied through either criminal or civil law.
Universities routinely conduct investigations into non-criminal offences such as plagiarism. It is entirely appropriate for universities to conduct investigations into alleged criminal offences even when those offences would not be prosecutable (for whatever reason) through a governmental judicial system.
I think the APA needs to have the power to revoke someone’s membership, or to place them outside of “in good standing.” Many professional organizations do this. Why not us?
I wish this point were given much more emphasis and uptake: professors are in *fiduciary* relationships with their students. Sexual misconduct is a grievous breach of that trust, and not just the harmed student: everyone. We breach the public’s trust (doing so is often a criminal offence for, e.g., politicians, police, lawyers, doctors, etc.). People who do that need to be sanctioned, including professionally. For example, a serial sexual predator simply shouldn’t be allowed to teach anymore (that is, they should be barred from academia).
Rachel, I totally agree that the APA needs that power, but I don’t think the professor-student relationship qualifies as a fiduciary one.
The professor-student relationship is fiduciary in the sense that students should be able to trust professors to make a good faith effort to educate them. If a professor fabricates something or knowingly presents falsehoods, that is a breach of trust. If a professor’s attention towards a student is mainly for the purpose of convincing her to have sex with him rather than for the purpose of educating her, then her trust will have been broken. These two purposes are not mutually exclusive, of course, and philosophy has thematised the erotic component in pedagogy since Plato. The question is whether the erotic dimension is sublimated for the sake of education (in which case we have Platonic eros) or whether education is merely a pretext for sexual predation.
Just to clarify, by “sublimation” and “Platonic eros” I mean to describe a situation in which whatever erotic desire exists in a professor-student relationship does not lead to sex. I cannot imagine any situation in which sex with a student would not involve breaking that student’s trust.
Avi, I was using fiduciary in the applied, legal sense of the world; courts to address the issue have general stated that a student and professor may have a contractual relationship, but they have rejected defining it as a fiduciary one. Personally I think we should use the word fiduciary in it’s legal sense, and find another word or phrase for an ethical or philosophical concept of “fiduciary”; maybe just “position of trust.”
Drew, I was assuming Rachel was not using “fiduciary” in the legal sense, but in a broader ethical/professional sense. Whether it is best to limit that word to its legal meaning is an interesting pragmatic question. In any event, I think the concept at issue is pretty clear and very useful.
I’d hope that it’s obvious that I didn’t mean it in the strict legal sense.
The legal profession for instance allows policing matters of professional conduct that includes sanctions for breaking professional codes of conduct quite apart from criminal ones, though criminal sanctions may be recommended as well. In my state I have served many years in a regional committee for lawyer regulation that is an arm of our State Supreme Court. Since lawyer-client relations are governed by a state code of conduct that includes as part of the fiduciary relationship (e.g,) abstaining from sexual relationships, lawyers may be sanctioned for such misconduct (private/public reprimands to loss of license to practice) that do not necessarily have criminal repercussions. In our state the standard of evidence of the committee to assess charges against lawyers and recommend sanctions (or criminal charges) is clear and convincing evidence, which sits between preponderence and PBRD, and is used as a standard of evidence in some criminal procedures as well (federal jurisdictions to assess insanity, for example). I am taking no position here about our profession or professional organization, because of course there are significant disanalogies here, especially with respect to the pivotal role lawyers play with respect to the law works day-in, day-out. I only offer this to say that it is possible to enforce professional standards of conduct without necessary involvement of the criminal justice system.
Many excellent points have been raised here, for which I am grateful. However, I can’t help but notice that many of our comments have been predicated on the assumption that students and faculty will actually go through the process of filing complaints against their alleged attackers. Given that a student has recently been sued for defamation for filing such a complaint, how likely is it that anyone will file such complaints in the future? It seems to me that once people who are considering filing complaints catch wind of this lawsuit, they would be highly unlikely to go through the process of filing a complaint.
After all, even if students or faculty members aren’t forced to pay damages, they will have to go through the painful process of being sued. And unless students or faculty are indemnified by their universities, simply paying for lawyers to fight the charges could wipe them out financially. I think it is likely that faculty are indemnified, but I strongly suspect that most students aren’t. I don’t know, though.
At the very least, shouldn’t we, as members of the profession, push to make sure that students are indemnified before they come forward to file complaints? Perhaps there is already a legal precedent for such lawsuits, so the recently filed lawsuit isn’t as significant as I am afraid it is. But since there was no mention of any in the recent New York Times article, I can’t help but wonder whether there aren’t.
If this case were dismissed, would that make it harder for alleged attackers to sue complainants in the future? If so, should we consider whether there is anything we as a profession should or could do to help get the case dismissed?
Maybe there is good reason that such suits shouldn’t be dismissed. Maybe I shouldn’t be so concerned about alleged victims, and should worry more about alleged attackers. I would really like help considering these issues, because I don’t want to be hasty in forming my judgments.
I wonder whether anyone has thoughts about this that she or he would like to share.
“At the very least, shouldn’t we, as members of the profession, push to make sure that students are indemnified before they come forward to file complaints?”
Is it not fairly obvious that this approach would lead to an increase in the frequency of both legitimate and, to a lesser extent, false complaints? Is the rationale for adopting this approach supposed to be simply utilitarian?
I don’t understand the jump from potential increase in false complaints to the utilitarian question. I also don’t think it’s obvious that this would lead to an increase in false complaints, for that matter. It’s not as though the possibility of being sued is the only thing holding back anyone from filing false complaints (or legitimate ones for that matter). I can’t imagine that risking one’s career, relationships, community standing, or stress level is an easy decision to make even when one has a legitimate complaint. But, as far as pushing for indemnity provisions, it also seems to me that given that academic communities are so rife with problems of equity, given that gender discrimination and sexual assault (among other types of oppression) are so acutely harmful, given that we have professional and ethical duties to deal with these kinds of problems, and given that when victim’s come forward they may be facing undue legal responsibilities, I think pushing for indemnity would be one step towards giving victims the type of support we ought to.
anonphil — I’m not sure I understand the connection between the kind of policy that you’re worried about and any particular brand of utilitarianism. Nevertheless, your comment suggests that such a policy is (obviously!) problematic insofar as it carries with it the unacceptable consequence of making false allegations less risky, and so more prevalent. I suppose it’s trivially true that such a policy might diminish to some extent the risks associated with false allegations, insomuch as the policy would make reporting, in general, less risky (at least, legally and financially — which is to say nothing of the emotional, psychological, social, professional, and personal risks involved). However, the suggestion that the good making feature of such a policy is outweighed by the corresponding (and, statistically rare) bad making feature, belies some pretty objectionable attitudes and priorities, in my opinion.
KP: I’ll extend the principle of charity and assume that you do “understand” said “jump.” Rather than directly engaging the prospect of a (perhaps justifiable) utilitarian tradeoff, you prefer to imagine that there might well be no such tradeoff–in which case, there’d appear to be no moral challenge in the first place.
LLH: My comment suggested nothing about “any particular brand of utilitarianism.” Nor did my comment suggest that an indemnity policy would carry “the unacceptable consequence of making false allegations less risky.” I don’t understand how you could draw that conclusion, since a utilitarian rationale obviously might permit trading off an unfortunate consequence for a greater good. Indeed, you went on to make a bluntly utilitarian case for an indemnity policy.
anonphil: I confess that I remain a bit confused about your comments here. In your second comment you write, “My comment suggested nothing about “any particular brand of utilitarianism.”” However, in your first comment you write, “Is the rationale for adopting this [indemnity] approach supposed to be simply utilitarian?” Perhaps you can clarify this point.
Second, your initial post conveyed quite clearly that you objected to the “fairly obvious” implication that such a policy would lead to an “increase in… false complaints.” If you did not intend for this to communicate an objection, I’m sure you could clarify that as well.
Third, I see no reason to believe that the only possible ethical defense of such a policy would be utilitarian. For example, one might think that insofar as such a policy extends basic protections to victims of sexual harassment/violence (viz. the right to report a crime) that we have a duty to implement protections of precisely this sort.
(This is in reply to anonphil) No need to extend the principle of charity — I was not being hyperbolic. By saying, “Is it not fairly obvious that this approach would lead to an increase in the frequency of both legitimate and, to a lesser extent, false complaints? Is the rationale for adopting this approach supposed to be simply utilitarian?” your comment carried the implicature (intended or not) that the only justifying reason for such an effort is utilitarian in nature (it also read, to me, as though you thought this was not reason enough–which I mention given your reply to LLH). I was offering an alternative course of reasoning which was not utilitarian in nature. Perhaps I wasn’t clear enough in doing so. I meant my comment to indicate that we have duties to victims, and that fulfilling those duties may offer sufficient reason. As far as the possible trade-off, I am not imagining anything — but one alternative ethical justification (for example) might be the principle of double effect. Hence, my failure to understand the jump from the potential increase in false complaints to utilitarianism.
KP: My comment carried no such implicatures–except for readers disposed to interpret in such ways an expression of some ground for caution. Presumably, no one would disagree that “we have duties to victims”–just as, presumably, no one would disagree that persons subjected to false allegations are victimized by non-victims in those cases.
Maybe double effect (for those who take it seriously) could be made to work as an alternative ethical justification for an indemnity policy for alleged victims of certain crimes. That’s a helpful enough response to my second question–though a utilitarian-type rationale, via the proportionality condition, would appear to underlie the DDE.
anonphil, I find myself ever more confused. I would have thought a strict utilitarian would deny we have any duties other than to maximize expected utility. And I second Anonymous’s request for clarity because I now think I don’t understand your first comment (is the note of caution, cautioning about what ethical justification could account for unintended negative consequences of a well intentioned act? Or is it that false complaints might increase and that this might outweigh the good? Or something else?).
anonphil: Your original post was very brief. Given that in your most recent post, you suggested that you meant it as a note of caution, I wonder whether this is a fair and accurate representation of the original:
1. Obviously, the proposed indemnity policy would lead to an increase in the frequency of both legitimate and, to a lesser extent, false complaints?
2. Ceteris paribus it is better that there be fewer rather than more complaints.
3. Ceteris paribus, it is better not to adopt the proposed indemnity policy.
4. The proposed indemnity policy stands in need of justification.
Or, to use language closer to yours:
4*. There must be some rationale for the proposed indemnity policy.
Your question, at this point, was: Is the rationale supposed to be “simply utilitarian?” Would it be acceptable to take your question to be: Is the proposed indemnity policy supposed to be justified on utilitarian grounds?
anonphil, I hope that you will let us know whether I have misrepresented your argument, and, if I have, that you will correct my mistakes.
Evidently, some readers strongly prefer to believe that an indemnity policy for alleged victims of sexual harassment and assault would lead only to some increase in legitimate complaints and not also to some lesser increase in false allegations. This seems implausible–which does not imply that such a policy should thereby be ruled out.
I believe what I later stated: that there is “some ground for caution” about adopting the indemnity policy. This is compatible with believing that upon further review, such a policy could be justifiable, all things considered. Still, I am finding no awareness or concern about how intersectionality is likely to bear with disparate impact.
Anon 9:03: Claim 3 is an inaccurate imposition based on dubious assumptions. Yes, though, my original questions do imply that the indemnity policy–like any policy that might well have some unfortunate consequence–“stands in need of justification.” And, yes, the second question can be restated as, “Is the proposed indemnity policy supposed to be justified on utilitarian grounds?”–which doesn’t imply that this would have to be the “only” possible grounds for justification, merely that I had difficulty thinking of an alternative.
anonphil: Doesn’t (3) follow from (1) and (2)? Did I misrepresent your position when I suggested that you would endorse (2)? If so, I apologize.
Anon 1:15: In your (2), presumably, you meant not simply “complaints” but false complaints. In any case, even if there is some technical sophistry involving “ceteris paribus” claims, the use of such a claim in your (3) is empty or misleading–regardless of what one thinks about the policy in question.
There’s nothing obscure about my basic “position” at this point. Readers are free not to engage the concerns actually expressed.