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.