SEXUAL HARASSMENT AND DUE PROCESS: From Easy Cases to Hard Ones

A little while ago we started exploring sexual harassment.  We acknowledged the discussion must begin from a premise of intolerance. To repeat: No woman

(or man) should have to endure unwanted sexual advances to get a part in a film, work in a bakery or congressional office, pursue educational opportunities, or serve in the military.  We recognized, though, that’s not the end of the inquiry.  After discussing definitions and recent high profile cases, we noted one of the difficult questions surrounding sexual harassment – balancing due process and fairness concerns with the need to encourage victims to come forward.

 

Rob Porter, Rob Porter, Rob Porter

For a while, the case of White House Staff Secretary Rob Porter

gripped Washington.  Porter resigned, or was fired, depending on the correct interpretation of statements by Chief of Staff John Kelly, after reports surfaced that Porter physically abused his two former wives and, therefore, couldn’t get a permanent security clearance.  The FBI investigated Porter and apparently told the White House during the summer of 2017 what it found.  Porter, who denies the abuse charges, obtained temporary

clearances and remained on the job until a British newspaper published the domestic violence allegations.  The FBI investigation likely turned up a restraining order one of the women obtained against Porter and a photograph showing one with a black eye.  Amazingly, reports surfaced this week that the White House is considering rehiring Porter.

Kelly first claimed not to have known about Porter’s issues and defended him as “a man of true integrity and honor.” Kelly reportedly urged Porter to ride out the storm.  After the photo surfaced, however, Kelly asserted Porter “was gone forty minutes later.” This account conflicted with FBI Director Christopher Wray’s congressional testimony that the Bureau updated the White House on its findings about Porter three times in 2017.  Sources said the July 2017 report detailed the spousal abuse allegations, meaning Kelly probably knew about Porter’s alleged transgressions long before the British newspaper report. 

 

President Trump lauded Porter’s work. “He did a very good job when he was in the White House,” Trump told reporters.  Journalists and critics noted the President said nothing about the victims of Porter’s alleged conduct.

No Entitlement 

Because no one has a constitutional right to work in the White House or any other agency requiring a security clearance, we have no trouble concluding Porter was treated fair and, therefore, received what we’ll call due process.  The FBI investigated the claims against him and reported them to the agency involved – the Executive Office of the President.  Leaving aside the question of when it acted, having received that information, the White House properly dismissed Porter (or accepted his resignation).  Porter’s alleged actions made him unfit to handle sensitive, sometimes classified, information.  Abuse charges, aside from the immorality and deficient character they potentially demonstrated, left Porter susceptible to blackmail, not to mention criminal and civil process.  We have no difficulty in saying (1) he had to go and (2) he was treated fairly.

What, you ask, about his denials?  Porter retains his presumed innocence in any criminal proceeding and he can require that his accusers prove his culpability by a preponderance of the evidence in civil cases they might bring.  The information developed in the FBI probe likely would become part of those proceedings and the fact finders would consider all the evidence. But that’s different than whether he gets to work at the White House.  Neither Porter, nor anyone else, is entitled to a White House job.  We believe Porter got what amounted to due process and coming to that conclusion wasn’t especially difficult. 

Donald Trump, Donald Trump, Donald Trump 

If Porter’s alleged transgressions cost him appointment to a White House job, partly because of the risk of someone blackmailing him, what of credible claims of sexual harassment against President Trump?  Aren’t the claims against him just as credible as those against Porter?  Isn’t the President as vulnerable to blackmail as Porter?  Should the fact of Trump’s election as President put the allegations against him in our political rear view mirror?  Must Trump’s fate await the outcome of the Mueller investigation?  We’ll have more to say about these important questions later, but for now, we close the book on Porter.

There are other kinds of cases  

Porter’s case differs from others the country has seen or will see in the #MeToo era.  Many people charged with sexual harassment don’t have to undergo FBI background checks.  The facts never get developed in the same way.  What’s appropriate in those situations?  Many sexual harassment incidents occur in the private sector, in jobs that don’t involve the public trust.  Do the standards applicable to government positions apply the same way there?  What’s the difference, if any, between big corporations and small businesses?  Does the same regime apply to the corner mom and pop grocery story as to IBM?  What about conduct occurring outside the work place that still impacts employment?   What process is due when a man (or woman) allegedly misbehaves toward another person in a social setting, but an employer or business contact must decide a response?

Some cases mostly concern how the public views the alleged abuser/harasser. What happens to the service station attendant, plumber, teacher, or other professional who aggressively pursues sexual conquests?   What constitutes due process or fairness in those situations?  Such instances, we think, present harder cases than the Porter affair.  Please give us your thoughts as we tackle those issues.     

             

MUSINGS ON MARCH MADNESS

All three of us love basketball.  One of us (Woodson) even once owned a semi-pro team. So, this is our time of year.  It’s hard to find a time there’s not a basketball game on television.  With the NCAA tournaments hurtling toward coronation of 2018 champions, we have a few thoughts on the proceedings to this point.

UPSET FOR THE AGES

No matter what else happens, one thing will always define this year’s men’s tournament – the 74-54 win by Maryland – Baltimore County (UMBC) over top

seeded Virginia. Even though UMBC came crashing to earth when it lost in the round of 32 to ninth seeded Kansas State, 50-43, the Retrievers’s victory over Virginia will always have a special place in NCAA lore.  It – a 16 seed beating a one seed – had never happened before in the men’s tournament (it happened once in the women’s tournament, 
a 71-67 win by 16^th seeded Harvard  over an injury --depleted number one seeded Stanford in 1998).  We can only guess when this might happen again. 

Regardless of why the UMBC-Virginia game turned out as it did, lessons abound in it for power five bluebloods and upstart mid-majors.  For the big boys, it’s a reminder not to ever, ever assume victory.  Virginia no doubt believes it took UMBC seriously.  Deep inside, however, the Cavalier players and coaches probably know they didn’t.  They likely understand now they didn’t get emotionally ready to play in the same way they get ready for Atlantic Coast Conference foes like North Carolina and Duke.  It’s human nature (after all, who is UMBC?). The March 16 game, and the resulting lost opportunity for Virginia, proved the risk in succumbing to that instinct. 

For the upstarts, the UMBC-Virginia result demonstrates the reason for keeping hope alive.  Play the game as hard as you can and let the chips fall where they may.  Who knows what might happen?  Think there’s no point in showing up? Think again, says this outcome.  Contests turn out funny sometimes.  Balls take strange bounces.  As ESPN’s Chris Berman so often exclaimed, “That’s why they play the game!”

GODZILLA AMONG THE WOMEN

One of us (Rob) intensely follows the women’s game, so we’re aware of what’s going on in that bracket too.  The tournament’s first weekend suggested not much has changed.  Despite losing in the national semifinals last year, Connecticut appears poised to capture another title.  Unbeaten Connecticut won its tournament opener, 140-52, scoring 92 points in the first half, and their second game, 71-46.  Does anyone not seeing the world through glasses tinted with their home team’s colors really believe Connecticut won’t swat away the pretenders in its path masquerading as challengers?

Pundits don’t quite know what to do with the dominance that’s seen Geno Auriemma’s team win four of the last five national titles and six of the last nine, not to mention being a number one seed 21 times in 25 years and reaching the Sweet Sixteen 24 consecutive times.  Some celebrate Connecticut’s excellence, an understandable response in a culture that’s always revered dynasties (think Green Bay Packers, UCLA men’s basketball, Pittsburg Steelers, the Damn Yankees, etc.). 

But there’s a side of the Connecticut reign for which other coaches in the sport need to answer.  They necessarily lag behind in player evaluation and development, court strategy, teaching, and other aspects of the coaching craft. Notice that list doesn’t include recruiting.  The usual explanation for Connecticut’s superiority is that it has the best players.  Connecticut recruits great players, but those who follow women’s college basketball recruiting know it doesn’t get ALL the top players.  Connecticut, in fact, hasn’t had the nation’s number one recruiting class since 2012.  UCLA, Duke, Maryland, and Tennessee ranked at the top in 2014, 2015, 2016, and 2017 respectively.  Yet, during the last four seasons, Connecticut lost just two games.  Something’s wrong with that picture.

WHAT ABOUT THE PLAYERS?

Returning to the men’s side, the sellout crowds, big television contracts, and saturation media coverage inevitably raise questions about why the players don’t share in the mega dollars the tournament generates.  This matter merits serious debate, as illustrated by recent scandals involving college coaches and agents.  It’s terribly complex, however, raising issues of justice (why should colleges pay coaches million dollar salaries while players struggle just to live?), fairness (if the players get paid, does the guy at the end of the bench get as much as the stud center?), gender equity (female athletes don’t generate nearly as much money as males, but do we really want to tell our daughters their efforts deserve pats on the back while our sons get hard cash?).

The three of us don’t agree on many ideas tossed around as solutions to this problem.  College basketball involves huge amounts of money and entrenched interests driven by deeply felt ideological, political, and economic considerations.  We assume that when the 2019 tournaments roll around, the issue will remain with us.  Given that, we see nothing to do this year but return to our brackets and try making sense of the remaining games.