*Content warning: mention of rape
In her latest book, Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash, feminist attorney-activist-writer Alexandra Brodsky addresses the pervasive sexism and misogyny that work to undermine the claims of women who allege sexual misconduct.
The impetus for the book, she tells The Progressive, was the 2018 Senate hearings to consider the confirmation of U.S. Supreme Court nominee Brett Kavanaugh.
“I had previously seen waves of debate about due process and sexual harassment, but public debate around the Kavanaugh hearings made clear to me how deep the misunderstanding goes when it comes to both sexual harms and what it means to engage in a process that is fair,” Brodsky says. “I could not say what I wanted to say in an op-ed, so I wrote Sexual Justice.”
The book is an accessible but deeply packed mix of the theoretical and the practical. Brodsky’s dense volume is rife with pertinent examples of justice denied and justice achieved. At its core are concrete suggestions for institutions, including schools and workplaces. These include:
Make the rules for what is appropriate and acceptable conduct clear and easy to understand;
Make sure that victims know exactly how to file a complaint;
Give the person who is accused notice of the allegation(s);
Tell both sides how the process will unfold and, ideally, provide each with an advocate to help them navigate through it;
Allow each person to present their side of the story to an impartial third party;
Give both parties ample time to examine evidence and submit questions they want the other side to answer.
The adjudicator should then weigh the evidence to determine a solution that is equitable; ideally, an appeals process should be available.
This is, Brodsky emphasizes, neither a trial nor restorative justice, but a process to ensure that all parties are heard. I recently spoke to her about Sexual Justice; here is some of our conversation:
Q: You use the word “himpathy” to describe support for men and boys who are accused of sexual misconduct. How can we increase support for victims, especially when the alleged perpetrator is a powerful male?
Alexandra Brodsky: Kate Manne coined the term “himpathy” to describe the automatic empathy so many feel for men accused of hurting women. It is rooted in misogyny, so progress for survivors will need to be part of a broader political project against patriarchy.
That said, it’s important to help people understand the impact of sexual harassment on survivors’ lives. In the book, I mention a case in which a student told her school that she’d been sexually assaulted by a classmate, and administrators responded by telling her that she was asking them to choose between her feelings and a promising young boy’s future. When we reframe sexual harassment to recognize its impact on victims’ ability to participate in public life, it expands our notions of whose future matters, who even gets to have a future.
Q: The resolution process you outline sounds close to restorative justice. Am I misreading this?
Brodsky: Restorative justice is only available where the parties agree to the facts and the person who caused harm is willing to take responsibility. So concerns about the fairness of an investigation—the book's primary topic—aren't really applicable.
I am both enthusiastic and skeptical about restorative justice. A lot of survivors want restorative options, and I’d love to see these alternatives expanded so they are accessible to more victims. But we also need to recognize that restorative justice is not a silver bullet. It is not the right fit for every circumstance—including situations where the accused person just denies wrongdoing.
Q: Have any colleges or universities made good progress on creating a safer and more just atmosphere on campus?
Brodsky: Unfortunately, progress always comes with backlash. Trump’s Department of Education under Betsy DeVos promulgated new regulations concerning Title IX’s protections for student survivors of sexual harassment. These rules reduced protections for student survivors of sexual harassment and reduced schools’ responsibilities toward victims. The rules also imposed unique procedural requirements on schools’ investigations into sexual harassment allegations.
Still, some schools are doing the best they can given the rules’ limitations, and are going beyond the bare minimum. Some continue to respond to reports of off-campus sexual harassment even though the rules do not require them to do so. But many of the schools that are going above and beyond the current requirements are better-resourced schools. I worry that the new rules are having the biggest impact on students at less wealthy schools—the kind of schools where students often take on significant debt, which they’ll be saddled with if they are forced to drop out because of unchecked sexual harassment.
Q: How about workplace progress?
Brodsky: There have been some startling success stories. One particularly impressive one comes from the Coalition of Immokalee Workers, which has harnessed different forms of public and corporate pressure to require farm management to take sexual harassment seriously.
Q: Many people use the term “due process” as if a courtroom setting is needed to resolve all disputes. Why is this wrong?
Brodsky: As a technical legal matter, due process only applies to public institutions. Ethically, our commitment to fair procedures extends to private institutions and we can extrapolate useful principles from legal requirements, even if they technically do not apply. The law tells us that due process looks different in different contexts. The Supreme Court has found that due process requires a far less formal, adversarial process for workplaces or school discipline than for criminal charges. This makes sense if you consider the differing purposes and stakes of each procedure.
Q: I was shocked by your reporting that complainants are often punished because the incident took place at a gathering where underage drinking or drug use had taken place.
Brodsky: This happens too often, where schools punish sexual harassment complainants for breaking school rules. I have a client who, as a high school student in Georgia, reported that she had been orally raped by a classmate. The school decided that both parties had violated a school rule against sexual contact on campus and suspended them both. My client ended up transferring to another school.
I’ve also recently heard about students afraid that if they report, they’ll be punished for breaking COVID social distancing rules at the time of the assault. It’s telling to me how often the victims who are punished are students of color.
Q: You argue that sexual harassment and assault should be treated the same way as other serious violations. Can you explain this further?
Brodsky: Every experience of harm is different, but that does not mean the procedures to resolve them should be different. It is appropriate, for example, for schools to have one procedure to handle harm to the school—things like cheating, destruction of property, theft, or graffiti—and another procedure to handle interpersonal conflicts. That second process can handle a range of offenses, including racial discrimination, hazing, bullying, and physical fighting alongside sexual harassment.
There’s no reason to single out sexual harassment allegations for their own siloed investigation procedures. Ultimately, that’s a recipe for bad policy rooted in rape myths.