It’s not nice or politically correct to say, but people do sometimes lie to get money, revenge, power, attention, or political advantage. False allegations of assault have been documented.
I stand athwart the streamroller of sexual misconduct complaints that crush the innocent, end marriages, and destroy careers. In the Me Too era, I am an employment attorney in the politically incorrect vocation of defending who must pay if misconduct is found.
My skin is thick, and I do not melt when asked, “How dare you!” I dare because I do not want the innocent to be wrongly punished. I know it’s a very unfashionable to advocate on behalf of the presumption of innocence, and I am often reminded of how insensitive and outdated the principle is in today’s climate.
Of course, courtesy to the alleged victim is absolutely essential to be effective. To do otherwise is completely counterproductive and quickly turns the focus from the facts to the conduct within the inquiry. So I go to great pains to make my questions respectful.
I don’t interrupt. I don’t impugn. I just ask the accuser to walk me through what he or she is saying entitles him or her to damages. We know from cases like the Duke lacrosse team that mob justice can trample defense of the falsely accused.
It’s not nice or politically correct to say, but people do sometimes lie to get money, revenge, power, attention, or political advantage. False allegations of sexual assault have been documented. Even the most pro-accuser advocates acknowledge that 5 percent of the claims are simply false.
When the complaint is “he said/she said,” we should not helplessly acquiesce to coin-flip justice that picks winners and losers based upon the identity politics profile of the accused and accuser. Experience with a career’s worth of complaints in hearings, depositions, and negotiations has taught me some tells, red flags that warn that an innocent person stands accused.
Without naming any particular accusation, I offer these factors for consideration to the fair-minded who remain open to the possibility that guilt or innocence is not simply a question of politics. I also remind the reader that politicizing these accusations have allowed men like Harvey Weinstein, Al Franken, Matt Lauer, Les Moonves, Bill Clinton, and Keith Ellison to escape accountability. Nobody seems to care if they walk the walk so long as they talk the talk.
1. The accuser uses the press instead of the process.
Every company has a slightly different process for harassment and assault complaints. Often it begins with a neutral investigator being assigned to interview the accuser first, then potential corroborating witnesses. When an accuser is eager to share with the media but reluctant to meet with an investigator, it’s a flag.
2. The accuser times releasing the accusation for an advantage.
For example, when the accuser holds the allegation until an adverse performance rating of the accuser is imminent, or serious misconduct by the accuser is suddenly discovered, or the accused is a rival for a promotion or a raise, or the accused’s success will block an accuser’s political objective. It’s a flag when the accusation is held like a trump card until an opportunity arises to leverage the accusation.
3. The accuser attacks the process instead of participating.
The few times I’ve been attacked for “harassing” the victim, it has always followed an otherwise innocuous question about the accusation, such as: Where, when, how, why, what happened? I don’t argue with accusers, I just ask them to explain the allegation. If I’m attacked for otherwise neutral questions, it’s a red flag.
4. When the accused’s opportunity to mount a defense is delegitimized.The Duke Lacrosse coach was fired just for saying his players were innocent. When the players dared to protest their innocence, the...
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