From October 2017 to now we have seen a litany of high profile men brought before the court of public opinion: Harvey Weinstein, Roger Ailes, Bill O’Reilly, Roy Moore, Al Franken, Louis C.K., Kevin Spacey, Morgan Spurlock, Matt Lauer, Former President George H.W. Bush, not to mention our current “Grab ‘em by the pussy” President Donald J. Trump. Lamentably this list seems to go on ad infinitum. While each of these men has committed sexual harassment and some have even committed sexual assault and rape, only Mr. Spacey is facing any sort of criminal charges. For a movement that is focused on bringing accountability to perpetrators and giving support to victims this begs the question, why?
The first barrier is that sexual harassment while pervasive and harmful only presents civil, not criminal, liability. Even when there are clear examples of sexual misconduct and sexual assault, the statute of limitations sometimes presents an insurmountable barrier. Due to the unique nature of sexual assault laws are now gradually starting to shift. Currently only 8 states have completely eliminated the statute of limitations requirements for felony sex crimes. In those that do have a statute of limitations it varies immensely. For example Hawaii has a relatively brief three year statute of limitations for rape. Other states like California have a much more generous statute of limitations of 21 years, with certain conditions, such as repeated sexual abuse of a minor extending the statute even further. This wide range of statute of limitations doesn’t help all victims however. At the time that Roy Moore was driving 14 year old Leigh Corfman to his home in the woods and kissing and groping her, Alabama’s statute of limitations for bringing felony charges involving sexual abuse of a minor would have expired three years after the incidents had occurred.
The passage of time also hinders not just the prosecution but the investigation of crimes. One of the most prevalent situations for sexual assault and sexual harassment occurs in situations of power imbalance. This can take a myriad of different forms: a supervisor and employee, a director and an actress, or a man acting in his professional capacity where he wields a great deal of prestige and influence. These power imbalances can create situations in which there are imbalances in witness availability. While the accused may have the employee payroll info, or access to the guest list, or even just knowing the right people to call; the complainant lacks these resources. It’s difficult to call as a witness the blonde woman in the red floor length gown, who saw the accused grope the complainant behind the craft services table.
In an employment context, even when a complainant can identify numerous witnesses, there are situations where neither the complainant nor the company can access those individuals. Relevant witnesses tend to have moved to another company, leaving behind minimal or outdated contact information. Even when the witness is still at the company this also presents a unique obstacle as the employee could be potentially fearful of retribution from the employer for exposing it to liability, or just not want to get involved. Even if the complainant is fortunate enough to be able to locate the relevant witness, and that witness is willing to assist and testify there is the additional challenge of evaluating the reliability of old memories. After many years, witness recollections may be spotty or flatly incorrect as to certain details. Particularly as certain high profile cases leak into the press, this too can taint witness memories as they become conflated with what they have read not what they truly recall. Where the alleged incident occurred fairly recently, the prosecutor investigating the matter can make more reliable adverse credibility determinations against witnesses with poor recollection or inconsistent memories. However, where the conduct occurred years ago, there must also be some acknowledgement of the inherent fallibility of memory. It becomes a much more nuanced art to walk that fine line, the greater amount of time that has passed.
The inevitable eraser of time touches not just witnesses but documents. Even in the rare occurrence that a company or individual backs up their emails, it is unlikely that they are easily accessible particularly by a third party who is suing a member of that company. The same issue arises with many forms of communication such as text messages, the old phone to which the messages were sent may have been damaged, discarded, or in this case of older models not archive messages for long periods of time.
While the judicial system may not quite be sufficient to address victim’s legal needs, the legislative branch is making strides in the right direction. There has been tangible progress on the state level, while legislation has stalled on the national level. In October of 2017, more than 140 women who work in and around the California Legislature signed a letter denouncing a culture of sexual harassment. In response Jerry Brown signed into law assembly bill 403, also known as the Legislative Employee Whistleblower Protection Act. This bill imposes criminal and civil liability on a member of the legislature or a legislative employee who interferes with, or retaliates against, a legislative employee's exercise of the right to report sexual harassment or violation of any law or legislative code of conduct.
There is proposed legislation that has passed the house in February with bipartisan support, that would overhaul how sexual harassment claims on Capitol Hill are handled. It amends the Congressional Accountability Act of 1995 by removing the requirement that victims undergo mandatory mediation before filing an official complaint. It would also require accused lawmakers to pay settlements with their own money and requires members and staff to go through mandatory sexual harassment training every year. While there has been pushback from some male Republican Senators, this is not a fight that is going away. On March 28, all 22 women senators, from both sides of the political aisle, signed on to a letter sent to Senate leaders demanding a vote. For now, only time will tell if accountability can be taken beyond the court of public opinion, and in front of a judge.