However, I don't know what's going to work to take people with vast amounts of power out of power for wrongdoing, either. What we've done in the past doesn't appear to have consistently worked. So here we are, unfortunately.

Trivial but serious answer: You might not know. Harvey Weinstein got Ashley Judd and Mira Sorvino blacklisted, and neither of them knew why they suddenly weren't getting roles.

It would be nice if we could build a gossip network which was immune to malicious gossip, but I don't know how one would go about doing that.

I don't have an answer. Clearly, it is problematic that you can have your career derailed by a bogus accusation. The real world is complicated and judging the feed of incoming information we get is a hard problem.

But two things I'm pretty sure of:

* The fundamental concern the "due process" people are articulating isn't unique to gender relations, but has its most powerful emotional impact for dudes in those kinds of controversies. Something is broken about that.

* "The police should resolve it" is clearly not the answer; in fact, that's a conclusion foreclosed by logic, since the standard of proof the police and prosecutors work on is so much higher than any standard used by people in their ordinary lives.

Relying on due process and the court system is one way to prevent people like Harvey Weinstein from carrying through on a threat of "I'll make sure you never work in this industry again", but it's not the only one. Taking rumours and innuendo at face value, on the other hand, is guaranteed to hand more power to abusive people.

There are people who are very good at detecting these kind of weaknesses and exploiting them. Whenever a system of power or control is overreacting or is irrational about something, let's say terrorism, there will be people who will report their neighbors for "bomb making" or anti-government propaganda knowing the government will overreact and ruin that person's life. Instead of terrorism and government it could be a company's HR and this sexual harassment rumor network, or reporting someone for neglecting their children (playing on the "think of the children" irrationality) to the police if they cut the lawn too close to the your fence and so on.

In particular, I would be interested to see examples where peoples’ careers have been ruined by sexual harassment, rape or gender discrimintion accusations that were legitimately baseless. I think that “the court of public opinion” is a red herring, because from what I can tell news outlets that people take seriously put serious due diligence into finding evidence against the accused. And as you said, they do not need to abide by the standard of reasonable doubt that the court system requires.

I also think that this discussion is mind of muddied by peoples’ perception of how likely accusations are to be believed. If someone starts a rumor about your job performance, that might be equally believable to a rape accusation, but it’s frankly not serious or “juicy” enough to really spread around. That won’t be reported in a major newspaper or make the rounds on Twitter. It’s just not going to attract eyeballs. But your example of child pornography is a good one, and probably comparable in my opinion. If someone is actually concerned about rumors against, I think it’s fair to give them that rape accusations are more worth worrying about in terms of damage than a rumor that people are going to sort of shrug off and not leave any one team or company.

One thing that I like to think about with respect to accusation validity - is there a heuristic we can use to informally determine the likelihood of an accusation before we find the conclusion? For example, if we are self-aware in acknowledging that our bar for truth is lower than a court, can we find commonalities in reaction or public response that are generally unique to people who actually did do the things they’re accused of? It’s not rigorous, but then again it doesn’t really have to be - most examples of careers being ruined by these accusations feature at least three different women. I think that if you can find three unrelated accusations, that’s a reasonable degree of certainty for the public, especially when you consider that these accusers do not typically have an incentive to collude (they don’t get anything material from publicized accusations).

The underlying problem is how to calibrate your heuristic. To know if the heuristic is any good you would need to know which accusations are true to begin with, which is the original problem.

> I think that if you can find three unrelated accusations, that’s a reasonable degree of certainty for the public, especially when you consider that these accusers do not typically have an incentive to collude (they don’t get anything material from publicized accusations).

They get whatever motivates anyone to make a false accusation (revenge, blackmail, jealousy, attention), with the added incentive of knowing that a previous accusation provides false credibility.

TBH (acquired by FB in Oct.) tackled this challenge [0].

[0] https://www.washingtonpost.com/news/the-switch/wp/2017/10/17...

Come now Colin, the answer is clear. We merely use a blockchain featuring anonymous signatures and transactions - parties have to stake N of their own GossipCoin to accuse others of some wrongdoing, and they lose their stake if greater than p other validators disagree. If at least q validators agree, the accused forfeits N GossipCoin :)

When someone makes a false claim without providing any of the specifics like when or where it supposedly happened, how are you supposed to prove it didn't happen under any standard of evidence? Show your whereabouts for every hour of your entire life?

These cases usually have precious little in the way of evidence one way or the other. If it was so easy for an innocent accused to prove they didn't do something then we wouldn't need the high standard of evidence in criminal cases either.

also, i think that in the US a defamation suit requires some sort of assessment the claim being actually true or false (as you can't defame with demonstrable truth), or at least some strong sense of merit, as well as some assessment of malice or bad-faith actions on the accuser/defamer end.

not to mention that there appears to be little enthusiasm for helping falsely accused, or those claiming to be such. there are fears that aggressively pursuing false accusers risks dissuading actual victims. bad situation all around.

That statement needs to be backed up by hard evidence. It's a very terrible thing to accuse someone of such a serious crime.

And if the statement is true, I somehow don't feel comfortable accepting that the solution is just to warn people not to work for them.

Dealing with a work place complaint is very different than dealing with a criminal case. With crimes, we can say “it’s better to let one thousand guilty people go free than to convict once innocent person.” We can do that because a false negative has relatively little cost. As we are learning with the Harvey Weinstein allegations, that’s not true in a work place setting. A false negative means that some woman has to either exit the job and give up career opportunities, or live with ongoing harassment and abuse at the hands of a coworker. And if you set the standard for believing accusers so high that you let one thousand victimized women continue to be harassed to save one innocent man from a false accusation, you get what we have now: a bunch of really angry women.

After the fact it's clear that Alice and Bob working together isn't good for either of them. And to the best of your knowledge Bob isn't guilty of anything -- unless you claim to know better than the police and the courts.

If you were the manager of Alice and Bob what action would you take that you belive is fair?

When Cheryl Yeoh posted her story, I wrote a few blog posts positing that we ought to focus on prevention. You and most people here are kind of assuming that the only point at which Microsoft had power to intercede was after the woman was sexually assaulted and now has this horrible dilemma of whether or not to work with her rapist.

But the incident occurred because she went out for drinks with colleagues, got too drunk to drive home and crashed at the home of a colleague. Microsoft could have had policies about how to handle work related functions that discouraged drunkenness, discouraged a woman crashing at a male colleague's house instead of being put up in a hotel if she couldn't make it home, etc.

No one ever brings up that angle but me and when I do, I get accused of blaming the victim.

Doesn't it seem ridiculous that companies need to have these kind policies or risk lawsuits and being smeared as cultivating a culture of rape? It seems to me that employers shouldn't have to babysit their adult employees or be their parents. Maybe instead of having employers be parents, society could reinforce the idea that parents/family/individuals be responsible. For example, not getting hammered, calling a cab if one can't drive, not going out alone (or as the only female in a group), not staying the night at the home of someone of the opposite sex, not having sex before marriage, courtship is chaperoned, etc. Oh no, how patriarchal! Instead, it's seen as reasonable for one's employer/university/etc to decide if one's sex life is consensual and make sure one has a safe bed to sleep in when one goes out partying!

> discouraged drunkenness

I'm sure this isn't what you meant, but imagine if Microsoft had a policy that punished an employee if they were found to have gotten exceptionally drunk outside work like in this scenario. First, it could only be applied to the accused, never the accuser. Imagine if this purported rape victim were punished because she admits she got very drunk before the rape happened. People would go crazy at that. They'd blame Microsoft for punishing the victim. They'd demand all rape accusers be given immunity from any punishment for misdeeds they did before the purported rape took place, lest the punishment for what they did discourage them from reporting the rape.

Btw, very much enjoyed your thoughtful well-reasoned comments in this thread!

Thank you for proving my point that even trying to broach the topic of prevention is rife with difficulty and gets insane pushback. I can't really fathom why. Simply not having the rape happen to begin with seems like the optimal solution, but it can't be discussed in good faith at all. It essentially gets nothing but over the top inflammatory remarks.

Edit: Though TBF I will add that it would probably be more accurate to say policies designed to discourage such things. Elegantly promoting safe social practices is a hard subject to write about.

Now, let’s look at the statistics. Rape is much more common than false accusations of rape. Now, you run a simulation using these statistics. What happens? The rule of believing Alice results in vastly more cases where you make the right decision than the rule where you believe Bob. And it results in vastly less social harm overall.

So what’s fair? I’d assume that you’d say it’s to believe Bob, since you have no “hard evidence” to the contrary. (To nitpick: a sworn statement by a witness, Alice, is evidence admissible in court.) But that means that 10-20 women are forced to leave their jobs or work with their rapists for every one man who is spared from wrongly being fired due to a false accusation. From the point of view of minimizing social harm, you’ve failed.

Of course, in reality, you’re usually going to have some other evidence to go on. Bob might say, “Alice is lying I was at the bar with my friends when the alleged rape happened.” If so then you should believe Bob, of course. The idea of shifting the burden of proof might not work in a criminal case, but for the reasons explained above, the considerations in a work place scenario are very different: false negatives are just as bad as false positives.

i'd wager that's true of every crime, from thievery to murder.

what you're suggesting is to treat every accusation as true.

And even when rape accusations are false, they're primarily not what the fertile imaginations of HN imagine, which seems to be women who've taken a dislike to some nerdy colleague for no reason, or the willing partner who decides later that it was actually rape.

In reality, the majority of them are very young girls, or cheating wives, who need to come up with some alibi for their parents or husband and so invent a classic stranger with a knife rape scenario rather than point the finger at some innocent person. Often they don't even intend to go to the police but the parent who they lied to files on their behalf.

https://qz.com/980766/the-truth-about-false-rape-accusations...

10% of false rape reports may be made by people in the hope of recieving medical care they need for other reasons, which is a tragic statistic in itself.

"To classify a case as a false allegation, a thorough investigation must yield evidence that a crime did not occur."

2-10% provably false allegations does not mean 90-98% are true.

i have little doubt that most allegations speak to truth, but it also seems to me that trying to manipulate numbers in this way isn't beneficial.

But you're missing my main point, if, as one study found, 78% of false rape claims involve claims of weapons, gang rape or physical injury then it's not going to happen during a Silicon Valley office Christmas party.

The raw numbers are paired with a narrative, when really the real data blows the narrative apart.

sorry, i was unclear. it's found in the link under "only between 2% and 10% of all reports are estimated to be false".

You're throwing away a datapoint - "the police decided not to press charges or Bob was found not-guilty in court".

Additionally if we followed your recommendation (which is essentially to lower the evidentiary standard for rape), it would probably result in more false accusations, which would multiply the number of wrongful convictions.

What you're arguidng for is exactly why we have the Weinstein's of the world, and why they feel empowered to abuse.

The comment still doesn't make a lot of sense to me in the context of workplace standards. Frequently claims of sexual harassment DO result in the alleged harasser being dismissed, regardless of whether they're true. So isn't this just an argument for the status quo? And if the evidentiary standard is lowered further, won't it still translate into a larger percentage of rape/harassment claims being fraudulent? Is this really the best way to address the problem of unprosecuted rapes?

The stats argument is clever but I don't think I could support it. I don't think a person should be punished because of the actions of people he doesn't know completely outside of his control. In another universe where false accusations are more common it would mean you make a different decision despite all the facts of the case remaining constant.

Why don't you think reasonable doubt a good standard in this case? I recognize that I try to err on the side of not punishing people but if I can seriously say that Bob really might not have done it then I don't think I could hand down judgement.

Having a different burden of proof for firing someone and sending them to prison is completely reasonable.

Also, if you aren't going to follow the justice system's outcome then what system are you going to use to evaluate the evidence under the new burden? The court of office opinion sounds terrifying.

There's not much more you can do. You address the tension, you don't assign blame, and you make sure both people have enough room to live healthy lives.

Now, if this is the second or third time Bob has been put in this situation, he's gone. And if this is the second or third time that Alice has been put in this position, she's gone.

Note : I am NOT saying that it is also the case for Dylan Farrow. Just that sadly the world is not all black and white and for this kind of crime it is very hard to find the truth.

Criminal accusations are much worse and deserve a much higher standard of evidence. Also, I think you're wrong. People ask that question all the time in the civil case.

Why are rape cases like this hard to prove? She was pass-out drunk, and the accused had sex with her. That's all the prosecutor should have to prove, there should be no she-said, he-said over consent.

Courts regularly rule that people don't have the capacity to sign a contract while drunk, yet somehow they do have the capacity to consent to sex? Come on.

Even if she did say yes, it's still rape in my opinion.

I know that drunken sex is the traditional way to consummate a relationship in modern Western culture, so this would be quite a difficult cultural change.

But IMO such a change would do more to strengthen the drunk college party tradition than it would to weaken it. Girls would be even more likely to party wildly if they weren't scared of being assaulted while doing so...

Most cases of rape absolutely are a case of he said, she said because in most cases they are the only two people present when the encounter occurred.

You can come up with physical evidence showing that intercourse happened and that she had high levels of alcohol in her system. You can come up with witnesses that the man and woman in question attended an event together and she went and crashed at his place. All of that is called circumstantial evidence. So unless you have something like videotape of the assault, it very often comes down to the testimony of two people -- him and her -- and which one you believe the most. Because the definition of rape hinges on the detail of consent.

That is almost always the case. Sex typically occurs privately. There are usually no other witnesses to sexual intercourse aside from the two people who had intercourse. This is generally true whether the incident was consenting or not.

Even in those places, her drunkenness is used as a mitigating factor by the defense — and often also the police and prosecutors.

That is probably at least in part because men and women both routinely drink in order to get past personal sexual hang-ups in a quick and dirty fashion so they can get laid at all, hang-ups that would take years of therapy to really fix. So voluntarily choosing to drink with or in the company of a member of the opposite sex can be reasonably interpreted as intent to try to get yourself laid.

This is part of why people vehemently object when I (a woman myself) suggest things like "In order to protect themselves, women should not drink under x, y and z circumstances."

That said, I also think there's a bright-line distinction between using intoxication to explain an assault, versus using it to excuse one. People tend not to see that line, either, though.

People who grow up with Catholic guilt or who were sexually abused as a child (etc ad nauseum) may, themselves, feel conflicted about having sex at all, even with their spouse. (I speak from firsthand experience as someone who was sexually abused as a child.)

Sexual consent is just not the nice, simple thing that some people want it to be. There are people who can't get laid without getting liquored up. There are people who have rape fantasies because they want sex, but don't want to be "at fault" for doing something that they have internalized is inherently bad and verboten.

This element is mostly not discussed. The subject of rape comes up, and people don't want to talk about how personal baggage intersects with sexual morality and seriously muddies the waters on exactly what constitutes a consenting moral sexual encounter. If you need to have a drink to get laid at all, telling people you need to be sober amounts to telling them you can't get laid until you work out your personal demons. (Which is not what I am saying, but it may be what people "hear" when I say certain things.) This is incredibly problematic.

I'm also not talking about "bright line consent". I'm talking about drawing a flashing-neon line on the near side of using intoxication to excuse shitty behavior. It never excuses anything. E.g., you get behind the wheel, over the limit, that is 100% on you, no matter what.

I advocate that women should not put themselves in certain situations and I get accused of victim blaming for trying to empower women to live safely.

But I did years of therapy. I generally don't drink. Women who do drink and/or have not sorted their childhood baggage get pretty enraged when I suggest not putting themselves in certain situations.

Can you point to a jurisdiction where this rule doesn't require direct evidence? Re-quoting parent's ask here:

>Do we have video of the event? Do we have eye witnesses who saw the sexual encounter? Do we know for sure what happened between two people when most likely no one else was around?

And, anyway, in the jurisdictions I'm talking about, it doesn't matter if you knew or not; if she was that drunk, it's rape. That's what "statutorily" means.

People close to me have been victims of acquaintance rape in their homes. It’s a horrific crime that shakes the victim to her core and leaves her violated in many ways. The process of getting justice is like getting victimized again.

And I'm saying that's all that necessary. With high levels of alcohol I claim that she could say "Yes, please" and it would still be rape: she didn't have the capacity for consent.

Most incidents of first time sex -- ie the first sexual encounter for this specific couple -- involve alcohol.* Are we going to start willy nilly charging both parties with rape for all such incidents?

* at least in the US they seem to.

I asked it to rebut their unstated but obvious (and erroneous) assumption that only men are rapists and only women are victims of sexual assault.

That standard may vary from state to state (but shouldn't.)

http://www.fremstadlaw.com/drunken-sex-rape/

I don't know what the relevant law is in WA.

I don't think you thought that one all the way through. They also wouldn't be allowed to have sex afterwards under any circumstances, which for a lot of women I know would be a problem. As far as I know this is already the law essentially, but not in practice.