#MeToo and Due Process

[ana_safavi]

There was an excellent article in the CMAJ a month ago about how to best handle harassment complaints by medical trainees.

With #MeToo constantly in the news for a year now, it has made me think that as a society, we really need to come up with better ways of handling complaints of workplace sexual harassment. Right now, the employer/institution calls all of the shots, at the expense of the rights of both the victim and the harasser. If the institution wants to protect the harasser, they will cover everything up and punish the victim for coming forward. On the other hand, if the institution is already looking for some pretext to fire the harasser, they will use the victim to scapegoat the harasser. In the end, it is usually only the institution that wins in this rigged process.

I wanted to draw attention to this particular paragraph from Lauren Vogel's article above:
Bechard says third-party investigations may represent a viable option for balancing the rights of both the accuser and the accused. “The ability for objective review of allegations of sexual harassment would be helpful, while allowing for the anonymity of the complainant.”

From the very start, I told my school that I would release the name of my harasser directly to the third party investigator only. I did this not to protect my own anonymity (that ship sailed went I went public), but rather to protect *his* anonymity. In my view, if the investigation determines that my allegations are unsubstantiated, then there is no reason for the school to ever know his identity. He can proceed with his reputation completely intact, with no threat to his career or marriage. If the third party investigator finds that my allegations are substantiated, then a limited summary of the findings can be released, as necessary, for disciplinary purposes. But, I am not convinced that a bunch of university administrators need to know the full details of the specific allegations (including sexually salacious details that would be personally embarrassing to my harasser, his colleagues, friends, family, and other witnesses) in order to fulfill their duty to maintain a safe training environment for medical learners.

Perhaps this is a way that, as a society, we can balance an institution's duty to investigate complaints with both the complainant's and respondent's rights to a fair process, while preserving the privacy of all parties (including witnesses) to a greater extent than is typically afforded in an internal investigation (particularly at small institutions where rumours run rampant).

So, I am proposing an alternate model for institutions to deal with complaints of sexual harassment, particularly when there is a significant power imbalance at play:

1. The victim submits a brief summary of allegations to HR, but keeps the harasser's name anonymous. HR decides whether the allegations, if found to be true, would meet the definition of sexual harassment according to the law and workplace policies.
2. If yes, HR hires a third party investigator, without knowing the identity of the harasser (this is crucial so that the decision to investigate internally vs. externally is not biased by how important or well liked the harasser is).
3. Once the investigator has been hired, the victim submits the name of the harasser and the full details of the allegations (along with names of potential witnesses and any other supporting evidence) directly to the investigator only. The investigator shares the identity of the victim and the detailed allegations directly with the harasser (so that they can prepare a defence).
4. The investigation should proceed as discreetly as possible. For example, the department head and university administrators need not even know that an investigation is taking place.
5. At the end, the investigator decides whether the allegations are: substantiated, unsubstantiated, or false/malicious, and communicates their conclusion to the victim & harasser. (If either the victim or harasser contests the result, then the full report should be shared with both parties.)
6. If the allegations are determined to be unsubstantiated, then it doesn't go any further. The investigator tells HR of the 'unsubstantiated' result, and the matter is closed. Nobody will ever know the identity of the alleged harasser other than the alleged victim. Only the alleged harasser and HR will ever know the identity of the alleged victim.
7. If the allegations are determined to be false/malicious, the investigator tells HR of this result. HR discloses this finding, along with the victim's identity to the appropriate body for disciplinary proceedings for knowingly filing a false complaint. The identity fo the alleged harasser is never disclosed to anyone.
8. If the allegations are determined to be substantiated, then the full report is given to the university's legal counsel (separate from the investigator) who will draft recommendations (i.e. is the conduct serious enough to merit termination; do any regulatory bodies need to be notified, etc). The person in charge of termination decisions will receive a copy of the recommendations, and the identity of the harasser, but not the identity of the victim. Separately, the victim and harasser may choose between themselves to proceed to mediation and/or to Court. The university should not in any way be involved in this aspect of the process.

My hope is that with the above method, those in power will be less hostile to victims, as they will be less afraid of the repercussions of a false accusation, and less vulnerable to an employer-driven witch hunt as pretext to drive them out of the organization. In turn, hopefully victims will suffer fewer reprisals, trust that their complaints will be handled seriously and discreetly, and as a result they will be less afraid to report abuse. And while third-party investigations don't come cheap, a proper investigation saves the institution from a drawn out, expensive and very public fight in the court room and/or press. And it's not just unhappy victims that sue; harassers denied due process sue just as often.

I welcome everybody's thoughts on this.