Category: sexual misconduct

Should we cite the scientific work of colleagues who were sexual harassers?

June 25, 2023 • 12:00 pm

There’s a new movement afoot for “citation justice” a form of affirmative action in which we should cite scientists who are marginalized as a way of boosting their careers.  I’m referring to citations in scientific papers, and here’s one example: “maps of chromosomes can be constructed by the pattern of recombination shown by alleles producing visible mutations (Morgan and Bridges, 1919)”.

While I still think affirmative action should be practiced in some realms, like college admissions and hiring, I don’t favor practicing it in scientific papers as a form of reparations.  My philosophy (which I may not always have acted on!) is that when presenting other people’s ideas, facts, or results, you should give the most relevant citations: those that best demonstrate the phenomenon discussed. And you should be parsimonious: avoid overcitation and don’t put in too many different citations that show the same thing. In other words, I use citations based on their value to their paper—their merit, as you will.

Others feel differently, and I’m not going to argue with them except to say that if you leave out citations that are more relevant or important in favor of citations by marginalized scientists, you’re lowering the bar for citation, which could result in a poorer paper.  (This of course implies that I think that science papers should function to build up the edifice of science, not effect social justice, which is better done other ways.)

However, the authors of this paper from the American Astronomical Society note that some groups are undercited:

. . . . it has also been found that when researchers cite others, they are less likely to cite women and scholars of color at rates that match their respective contributions to the field. Many reasons for these unequal citation practices have been suggested, ranging from implicit or unconscious bias to careless citation practices (such as not seeking out the original reference) to consciously choosing to exclude certain researchers and/or groups when citing others.

If it is indeed the case that women and scholars of color aren’t cited as frequently as they should be given the relevance of their work to the paper, then that should be rectified.  Remember, a citation is there to document a statement or fact, not to laud somebody’s accomplishments, so what’s important here is not “respective contributions to the field” but “relevance of their work to the statement requiring documentation.”  If there is under-citation in this sense, then scientists should indeed do something about it when they write papers.

But the topic of the article below is this question:

 This leads to the crux of many recent discussions: is it ever acceptable to intentionally choose not to cite someone(s)?

Their answer seems to be “yes, it could be acceptable to deliberately omit a relevant citation, though there’s no cut-and-dried rule”.

Click screenshot to read:

The authors first lay out, in a good summary, why scientists use citations:

Currently, the relevant portion of the AAS Code of Ethics is found in the Publications and Authorship section of the Ethics Statement:

Proper acknowledgment of the work of others should always be given. Deliberate, wanton omission of a pertinent author or reference is unacceptable. Authors have an obligation to their colleagues and the scientific community to include a set of references that communicates the precedents, sources, and context of the reported work. Data provided by others must be cited appropriately, even if obtained from a public database.

The statement reminds us that there are several reasons why we are expected to cite others in our publications.  These include citations as an acknowledgment of the contributions of others to the ideas in our work, as well as to avoid plagiarism, and we cite others to justify our methods, assumptions, and research practices. Citations are also important for maintaining the integrity of the academic record and tracing the development of ideas over time, both for the historical record as well as for a proper understanding of how a research field has evolved.

To me, this alone implies that you cite based on relevance, not as a way to effect social justice. And even if authors have done some bad things, if their research is solid and relevant to the point being made, you should cite them. Not doing so violates all the reasons given above.

But moral considerations then creep into the article of Hughes et al.:

In the case of unethical research practices, we can look to other fields outside of astronomy for some guidance. The AMA (American Medical Association) Code of Medical Ethics suggests that when researchers engage with results that were obtained in a clearly unethical way, such as Nazi experimentation on humans during WWII or the Tuskegee Syphilis Study, they should first seek to cite studies that used ethical methods and obtained the same results. If that is not possible, then the harm involved in obtaining the results should be disclosed and acknowledged, the reason for needing to cite the study justified, and the authors should pay respect to the victims of the behavior.

I’m not sure that there are any results of Nazi medical experiments that are even worth citing; I remember reading one scholar’s conclusion that these experiments were so slipshod that they never produced anything of value, even given their aims—to save German soldiers (or, in Mengele’s case, to satisfy a sadistic curiosity). And nearly everyone now knows of the Tuskegee Syphilis Study and about its unethicality. I don’t know if it generated any useful data, but to have to stop in the middle of the paper and recite a screed in honor of the victims seems to me a bit much. I’d rather just say “see X”, where “X” is a discussion of the harms produced by that study. Moral genuflection (“I will now show that I realize this work was unethical”) is somewhat demeaning in a case like the Nazis and Tuskeegee. In fact, I’m hard pressed to think of having to cite any study that requires that kind of qualification and explanation.

But the authors do find one case where citations may be properly left out without any qualification: when the scientist cited is a sexual harasser. As they say:

But the guidance becomes less clear when it comes to dealing with citations of documented sexual and serial harassers. While there have been several recent high-profile cases in astronomy, many other fields are currently struggling with this same issue. The arguments of whether we should cite these individuals boil down to two main positions:

Note that the links go to two sides of the argument, the “Yes” from my law-school colleague Brian Leiter.

This is the starting point from which the AAS Code of Ethics Committee, the AAS Publications Committee, and the Ethics Working Group are confronting the issue. There are several related questions to grapple with:

Here are the questions that, according to Hughes et al. must be answered before you can decide whether or not to cite a harasser:

  1. Is the research unethical, or is the person’s behavior unethical, and does it matter?
  2. Is sexual harassment a form of research misconduct? The American Geophysical Union says yes, and the NSF has instituted policies that require institutions to report sexual harassment findings which can lead to the revocation of grant funding. While the AAS code of ethics does not currently address this issue directly, the Astro2020 Decadal Report recommends that identity-based discrimination and harassment be recognized as causing the same level of harm to the integrity of research as is caused by research misconduct.
  3. How do we identify bad actors in our community? What is the threshold? By which temporal and cultural standards do we judge? Who ensures that the punishment fits the crime, and can there be a path to restoration?
  4. Who is harmed? What is the collateral damage? How do we limit future harm to the survivors of sexual harassment? Should we protect the junior colleagues and collaborators of bad actors from secondhand punishment, and if so, how? And when does the integrity of the scientific record take precedence?

The authors do admit that making a decision not to cite someone who’s a sexual harasser (and yes, the conclusion is that it may well be justified) is an “ethical gray area.”

But none of this stuff, to me, justifies not citing someone as a form of punishment because they engaged in documented sexual harassment.

Of course I abhor sexual harassment, and it should be dealt with promptly and properly.  But why is sexual harassment the only bad act that can be punished by canceling a citation? (And yes, canceling a citation means canceling the scientific community’s knowledge of relevant science.)  What about any felony: robbery, murder, or other bad acts like simple non-sexual harassment or bullying of students or colleagues? (It may be because the three authors, all women referred to as “she” or “her” on their professional webpages are more attuned to this form of bad behavior than are men.)

By all means punish those who engaged in misconduct—and apparently it doesn’t have to be “research misconduct” to make someone a “bad actor”. But remove their contributions from science? That’s a no-no to me.

I may be an outlier, but in my view there’s no good reason to not cite the scientific work of “bad actors” or harassers if the work itself is sound and relevant.  Even murderers should be cited if their work is relevant. There’s no “research misconduct” worse than killing one of your students, but to me even that’s not bad enough to expunge someone’s relevant work from science.

Punishment and ostracism  should be inflicted on people, not on science itself, for leaving out relevant citations because the person who did the work was bad is indeed hurting science, and scholarship in general.  Being fired or punished is enough; it’s not necessary (and is indeed harmful to science) to “punish” someone further by simply refusing to cite their work. If we did that, we wouldn’t cite great literature, for many famous authors were pretty bad people, including being sexual harassers.

In the end, I agree with Brian Leiter, whose “Yes” vote for not removing citations is explained in the 2018 Chronicle of Higher Education article linked to above: “Academic ethics: should scholars avoid citing the work of awful people?” (the three people cited in his first paragraph below were accused of sexual misconduct):

Certainly, scholars should condemn Frege, Searle, Ronell, and the like. But to excise from the canon of relevant knowledge those who are appalling people is simply a further betrayal of what justifies the existence of institutions devoted to scholarship.

. . . You should not — under any circumstances — adjust your citation practices to punish scholars for bad behavior. You betray both your discipline and the justification for your academic freedom by excising from your teaching and research the work of authors who have behaved unethically. Universities would, in principle, be justified in disciplining you for scholarly malfeasance, subject to appropriate peer assessment.

Such academic misconduct is unlikely to constitute a firing offense — unlike, say, serious plagiarism or fabrication of data. But researchers or teachers who let moral indignation interfere with scholarly judgment do betray the core purposes of the university and so open themselves to professional repercussions. The foundations of academic freedom demand nothing less.

h/t: Thanks to a scientist who does astronomy for alerting me to this piece.

Is Boris Johnson on the way out?

July 6, 2022 • 10:50 am

This morning I received two emails from British friends suggesting that Prime Minister Boris Johnson is circling the drain. Of course he’s been circling it for a long time, but now he appears to be on the drain’s event horizon. I asked for details but didn’t get them. Eventually another British friend wrote me this:

Two senior cabinet ministers and bunch of junior ones have resigned after revelations that [Johnson] lied about his knowledge of sexual misconduct by an MP he appointed to a post.

Well that was enough to get make me look at the news.

The BBC article below provides what I think is the answer (click to read):

Here’s the summary; the accused appears to be Christ Pincher

Boris Johnson is battling to stay in office, amid a growing wave of resignations from his government in protest at his leadership.

New chancellor Nadhim Zahawi has urged unity after his predecessor, the health secretary, and several junior ministers walked out.

But the prime minister has been hit by six further resignations, taking the total to 16 in the past day.

It comes as he prepares for PMQs later and a grilling by senior MPs.

Mr Johnson’s premiership has been plunged into crisis following the dramatic resignations of Chancellor Rishi Sunak and Health Secretary Sajid Javid.

They quit within minutes of each other on Tuesday following a row over Mr Johnson’s decision to appoint Chris Pincher deputy chief whip earlier this year.

Their departures triggered a wave of resignations from more junior roles that has continued on Wednesday.

In six further departures ahead of PMQs, education ministers Will Quince and Robin Walker, Justice Minister Victoria Atkins, Treasury minister John Glen, and ministerial aides Laura Trott and Felicity Buchan have all walked out.

Mr Johnson has admitted it was a “bad mistake” to appoint Mr Pincher, despite being aware of misconduct allegations against him.

It followed days of changing responses from No 10 over what exactly the PM knew about Mr Pincher’s past conduct when he gave him the job.

Now this would not lead to the removal of a U.S. President: remember how Bill Clinton lied about his own involvement with Monica Lewinsky, and was impeached—but survived?

But it’s interesting to compare the BBC coverage in this article with what would be reported if a U.S. President lied in the same way. The U.S. news would give Pincher’s alleged misconduct in great detail, as we love scandal.

The BBC is more puritanical, putting the emphasis on politics and what could happen to Boris. However, there’s already a Wikipedia article on the row, “Chris Pincher scandal”, which goes back to 2017 when Pincher was accused of inappropriate conduct towards a woman. Then he was accused of groping two men. And here’s what got Johnson into hot water: accusations of covering up this (from the Wikipedia article).

On 3 July 2022 six new allegations against Pincher emerged, involving behaviour over a decade. Three complaints are that Pincher made unwanted advances against other male MPs, one in a bar at the House of Commons and one in Pincher’s parliamentary office. One complainant reportedly gave Downing Street details in February and expressed concerns over Pincher becoming a whip in charge of other MP’s welfare. Pincher maintained he had no intention of resigning as an MP.

Johnson allegedly referred to Pincher as “handsy” and Dominic Cummings said Johnson joked about him being “Pincher by name, pincher by nature” in 2020. There are calls for Johnson to explain how much he knew about Pincher’s behaviour. Labour MP Jonathan Reynolds said: “I think we’ve got to acknowledge what the consistent problem is and it is a Conservative party that repeatedly chooses to do what is politically expedient over what is right. It’s clear from what we know this morning that Chris Pincher should never have been put back into the whips’ office.”

Ministers initially said that Johnson was unaware of any specific complaints against Pincher when he was appointed as deputy chief whip. Later, Downing Street said Johnson was aware at the time of media reports and allegations that were “either resolved or did not progress to a formal complaint”. The BBC then reported, however, that an official complaint and subsequent investigation into Pincher, while he was at the Foreign Office (July 2019 to February 2020), had confirmed his misconduct, and that Johnson had been made aware of the matter at that time. Sir Simon McDonald, former Permanent Under-Secretary of State for Foreign Affairs, later confirmed that the prime minister had been briefed “in person” about Pincher. McDonald said that in the summer of 2019, a group of officials had “complained to me about Mr Pincher’s behaviour. In substance, the allegations were similar to those made about his behaviour at the Carlton Club.”

Will Boris go? Should he go for not proceeding to act against Pincher for making advances?

We’ll have a poll, but first here are the BBC’s scenarios of how he could go down the drain as PM:

How could Boris Johnson go?

  • If party bosses change the one-year rule on leadership challenges, rebel Tory MPs could try again to oust him later this summer, or in the autumn
  • If Mr Johnson lost a vote of no confidence in Parliament, he would have to resign or call an election
  • Otherwise, he would have to resign himself – possibly in the face of cabinet pressure, like Margaret Thatcher – or after a fresh wave of ministerial resignations

I know squat about what would happen if Boris went, and will depend on Brits to inform me in the comments. If he resigns, who would replace him? If there’s an election to replace him, would the Tories still win?

And our poll about Boris’s fate. Please give your best prognostication; I’m always disappointed in how few people give an opinion. It’s just for fun—a survey of reader sentiment.

Will this scandal lead to Boris Johnson's removal as Prime Minister?

View Results

Loading ... Loading ...

Andrés Roemer, Mexican intellectual and founder of “Ciudad de Las Ideas” meeting, issued arrest warrants for sexual harassment, rape, and abuse

June 1, 2021 • 1:15 pm

I attended the Ciudad de Las Ideas conference twice in Puebla, Mexico (see here here, and here), which approximates a Mexican TED conference except that there is a lot more stuff besides talks, including entertainment, discussions, and, for the lucky participants, some nice tourism, food, the hospitality of wonderful locals, and the chance to rub elbows with an international lineup of notables.

The conference is run by Andrés Roemer, writer, entrepreneur, public intellectual, and former UNESCO ambassador. Actually, I should say “was” run, because I doubt it will ever be held again. The ugly facts are that Roemer has been accused of sexual harassment and assault by over sixty women. Before resigning from the honorary board of advisors, I read every bit of testimony I could, and the common elements of the accusations of the various women was so striking that I had no choice but to sever my ties with Roemer. Several other prominent people have also resigned, but they can speak for themselves. (My photo is gone now, but photos remain of people who have also resigned, so do not assume that a presence there reflects an unwillingness to resign.)

The story started on February 15 when a professional ballet dancer, Itzel Schnass, put her accusations in public—on YouTube. I don’t have a Spanish translation here, but I did at one time, and perhaps you can understand this:

The accusations of rape, sexual harassment and abuse against Roemer are now detailed in this Time Magazine article (click on screenshot below). I was told at the beginning of these accusations that, in Mexico, the cult of machismo is so strong that Roemer would never face jail, much less a trial or even public opprobrium, for what he allegedly did to these women. Thankfully, this has now changed. As Time reports (click on screenshot):

A brief summary of what’s transpired as one woman after another came forward:

Since [February 15], 36 women have publicly accused Andrés Roemer, leveling charges of sexual harassment, abuse and rape on social media and in the press. At least six have formally accused the 57-year-old before the Mexico City prosecutor’s office, Mexico City’s attorney general confirmed on May 24. In February, UNESCO stripped him of his Goodwill Ambassador title, and Columbia University, where he was a visiting scholar, cut ties with him. On May 5, amid reports that Roemer was in Israel, a Mexico City judge issued a warrant for his arrest for rape. His assets were frozen the same day. On May 21, Mexico City’s attorney general announced that a second warrant for Roemer’s arrest had been issued and that her office was preparing an extradition request from Israel. Roemer has denied the accusations. “I have never raped, assaulted, threatened or used any type of violence against any woman,” he said in a statement to Radio Formula on May 6. Roemer’s assistant did not make him available for comment for this story.

“Itzel Schnaas’ video changed everything,” says María Scherer, a journalist who started investigating rumors about abuse by Roemer years ago when, she says, it was still an open secret. Roemer’s alleged crimes are comparable in scope and style to those of Harvey Weinstein. Like the former film producer, Roemer’s power and status—cemented by friendships with the likes of former Mexican President Vicente Fox and billionaire Ricardo Salinas Pliego, both witnesses at his 2018 wedding—helped ensure his alleged victims’ silence. He also benefited from a legal system that practically guarantees impunity: according to one study, only 5% of sexual abuse or rape cases in Mexico end in a sentence. “It’s very hard to get proof like a video, medical evidence or something that proves the aggression,” says Viridiana Valgañón, a lawyer with Mexican women’s-rights organization Equis. “You come face to face with the machinery of patriarchal justice, because your word, as a female victim, is doubted at every turn.”

You can read about Roemer’s alleged modus operandi in the article, which, as I read one bit of testimony after another, showed that he’d hatched a nefarious plan for attacking these women. And although the accusers initially lacked hope given Mexican culture, the tide turned when a feminist group, the United Mexican Journalists, started naming Roemer on their tweets.

Roemer denied the allegations, but there were so many that appeared, including allegations of misconduct in the U.S., that neither the press nor the Mexican government could ignore it:

On Feb. 23, 2021, in an extremely rare move, the Mexico City prosecutor’s office opened an investigation ex officio into Roemer, based on the news reports of his alleged crimes. Finally, a legal path was open for the women to pursue Roemer. The next day, he deleted his Twitter account.

Romer went to Israel (I think “fled” is the appropriate word), where he faces an extradition request.  I can hardly think that Israel won’t grant it. What happens when he returns to Mexico for trial will show how seriously the government takes multiple accusations of sexual misconduct.  I cannot imagine he will not be tried.

I met Roemer several times, and of course there was no sign of his perfidy, but such things are not displayed publicly. Nor did I hear any rumors, but they were already circulating in samizdat.

I thank the brave women who came forward in a culture not friendly to such accusations, and to those women who allowed me to read their statements, as well as to the woman (you know who you are) who translated them into English for me and brought this matter to my attention.

Andres Roemer

Harvard severely disciplines evolutionary biologist Martin Nowak for his ties to Jeffrey Epstein, closes Nowak’s evolution institute

March 27, 2021 • 1:45 pm

This has been in the air for some time: after a few years of pondering, Harvard has rendered its judgment on evolutionary biologist Martin Nowak for his connections to Jeffrey Epstein.  I haven’t been a fan of Nowak, particularly his work with Ed Wilson and Corina Tarnita on group selection, but I don’t take any joy in a well known and highly productive biologist—even if some of the product was dubious—meeting his downfall. The gist of it is reported in this new Guardian article (click on screenshot):

The only thing I guessed wrong was in thinking that Harvard would fire Nowak. They didn’t. What happened to him, however, is nearly as bad:

Harvard University’s program for evolutionary dynamics is to close after an inquiry into ties between its director, Martin Nowak, and sex offender Jeffrey Epstein.

According to the university, the mathematics and biology professor violated several university policies through his contacts with Epstein, including giving the disgraced wealthy financier an office on campus which he visited more than 40 times between 2010 and 2018.

Epstein, 66, was charged with sex trafficking in 2019, shortly before he was found dead in his cell in the Metropolitan correctional center in New York. Epstein had faced an indictment accusing him of running a sex-trafficking ring of underage girls, some as young as 14.

Nowak will be barred from starting new research or advising students for at least two years, according to the university. The sanctions come almost a year after Novak was suspended following a university review that found he had extensive, previously unreported contact with Epstein. [JAC: Nowak was suspended on paid leave.]

The review of Nowak’s connections to Epstein found that the professor had facilitated Epstein’s efforts to use ties to the prestigious university Harvard as a tool to rehabilitate his image.

The review also found that Nowak devoted a page to Epstein on the center’s website that included links to the financier’s websites. The university received $9.1m in gifts from Epstein, including a donation of $6.5m to the evolutionary dynamics faculty in 2006.

According to the Harvard Crimson, the University took over $9 million from Epstein, but didn’t take any more money after his conviction for sex offenses in 2008 (Epstein committed suicide in jail while being held on a more severe set of charges). And Harvard did donate an unspent $200,000 of Epstein’s gift to victims of sex trafficking and sexual abuse. But Nowak continued to give Epstein perks, though who knows if that was to “rehabilitate his image.”

After conviction, Epstein remained a visiting fellow of Nowak’s Program in Evolutionary Dynamics (PED), had a visitor’s office and a key card, and visited the office over 40 times before he was taken into custody again. He also participated in several PED events. Given that Epstein had no credentials in the field, and his favor was being curried because of his enormous wealth and the perks that came with knowing him, this was deemed a violation of Harvard’s policies.  And there was this, which seems to me quite serious:

[The Harvard review] cites an incident in which Nowak falsely informed a grant-making foundation that matching funds for a PED grant came from a foundation run by Epstein, suggesting that Harvard report the incident to FAS’s Faculty Affairs Office.

Did Nowak know of Epstein’s conviction for sexual trafficking in 2008 (he was convicted of procuring a woman under 18 for prostitution)? I can’t imagine he didn’t, as it was public information.  So, at the very least, Nowak is guilty of spectacular misjudgment: giving a convicted sex offender without credentials in biology a position with his biology institute. I doubt that the same punishment would have been handed out had the recipient of Nowak’s largesse been a nonspecialist who hadn’t been convicted of sex crimes.

But this is not mine to reason why. All I know is that Harvard will be very careful in vetting its visiting fellow in the future! And I’m pretty sure that Nowak, who has a worldwide reputation in evolutionary biology, will find a job somewhere else, as I can’t imagine that he’d want to stay at Harvard.

Martin Nowak

Misconceptions about the new Title IX regulations

May 25, 2020 • 1:30 pm

Much as I despise Trump and most of his administration, I’m not going to damn everything that administration does simply because we have an incompetent infant as President. And there are few good things. One of them was to revamp the Title IX regulations, which under Obama had been changed so that students accused of sexual misconduct in universities had few rights. Procedures and hearings were manifestly unfair and weighted toward the accuser, with the result that many colleges are having to pay big bucks when they’re found in real courts to have acted unfairly.

The Trump (really the DeVos) regulations made things more equitable (see here, here, here, and here).  A poll in 2018 showed that the bulk of WEIT readers favored the police handling the cases first, and only then should colleges take up the issue (presumably colleges wouldn’t adjudicate cases in which the police could find no reason to charge somebody with sexual misconduct). Here are the poll results:

This article (this time a new one!) from the Foundation for Individual Rights in Education (FIRE), links to the new Title IX regulations . If you don’t know, those regulations are part of the Educational Amendment Act of 1972, stipulating that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

You can read the new regulations (pdf here), but there are 2033 pages in the document! They’re shortly to become law but are now in draft form. Fortunately, FIRE has read them so you don’t have to, and discusses what they do and do not say. Click on the screenshot:

FIRE then dispels five misconceptions about these new regulations, which seem a marked improvement in the Obama administration’s policies, and more likely to ensure justice in college accusations of sexual misconduct.

Here are the five misconceptions. FIRE’s take is indented, while my own comments are flush left.

1.) The regulations mandate that sexual harassment cases be treated differently from racial harassment cases.

This is false; all cases must now be adjudicated the same way. The standard used is the Supreme Court’s interpretation of harassment, which involves both a subjective and an objective standard:

The new regulations’ definition of hostile environment harassment tracks the Davis standard: “Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”

Note that a simple claim that “I felt I was harassed” is not sufficient here; conduct must meet a standard that meets what a reasonable person sees as constituting harassment. Note that this is similar to some colleges’ abrogation of the First Amendment when a student feels offended or attacked. That, too, is not enough: to violate the First amendment, speech considered harassing has to be judged by more than the recipient, but by an objective standard. To me that seems eminently reasonable.

Further, currently most colleges do have a literal double standard for sexual versus racial harassment:

. . . most colleges maintain a bifurcated system where sexual misconduct cases are dealt with differently from all other cases, including racial harassment cases. Some schools, inclined to require “clear and convincing evidence” for a responsible finding, have been using a higher standard of evidence for non-sex-related cases than for sex-related cases since 2011. ED’s rescission of this 2011 mandate and finalization of the new regulations gives institutions a path (and ED has encouraged institutions) to use the same standard for both types of cases.

“Clear and convincing evidence” is a 75% or higher probability of guilt, though the Obama-era standard for sexual misconduct was “preponderance of the evidence”—that is, only a greater than 50% probability of guilt. Both of these are far less stringent that legal criminal conviction, which requires “guilt beyond a reasonable doubt.”

This need no longer be the case (see below). Finally, many colleges allow live hearings for cases not involving sexual misconduct, but not for those involving sexual misconduct. The accused weren’t allowed to confront the accuser, ask questions, or even have a lawyer. That, too is changes, as it should be.

2.) The regulations raise the standard of evidence for campus disciplinary cases.

Again, a misconception. Institutions can choose to use either a preponderance of evidence standard or a “clear and convincing evidence standard”, but they must use the same standard for all complaints of sexual harassment, including those against faculty or employees.  I myself would prefer at least a “clear and convincing evidence” standard if you’re engaged in proceedings that could result in someone being suspended from college, so in this case the Title IX regulations don’t go quite far enough for me. And judging by the poll above, probably not far enough for the readers.

3.) The regulations gut Title IX protections. 

Critics of the regulations claim that they “gut[] Title IX protections for students.” To the contrary, as my colleague Joe Cohn explained in a post earlier this month, the regulations require that schools provide new and important safeguards, options, and tools to both complainants and respondents, and they bring the focus of the regulations back to the original purpose of Title IX — ensuring equal access to education.

Right now, too many institutions aim for whatever result is worst for the respondent, not whatever result is best for the complainant. They are concerned with punishing students who they deem guilty, but they are not necessarily asking what complainants feel would be most helpful for them to continue their education. That serves no one.

Safeguards like the opportunity to question witnesses aren’t just useful for respondents; they can be used by complainants and their representatives to demonstrate to fact-finders the truth of their complaints, too. With more information shared in advance of the hearing, complainants will be better able to prepare for it. And with a guarantee of impartial fact-finders and public training materials, complainants can have more confidence that their cases will be handled fairly — or more recourse if they aren’t.

This reminds me of my experience in the courts as an expert witness in DNA cases, when the prosecution often seemed hell-bent on getting a conviction, even if, as they did in some of my cases, they deliberately tried to confuse the jury or to cast doubt on manifestly true statements. Their desire often seemed to me not to ensure that justice was done (which is their explicit mission), but to find someone guilty. The way Title IX has been used by colleges often resembles that tactic.

4.) “But my school already provides a fair disciplinary procedure!” 

We’ve spoken with many administrators who think that they already provide procedural safeguards like notice of charges and an opportunity to be heard. But these administrators’ institutions often do not actually guarantee these safeguards; instead, they maintain policies that allow an administrator to grant those safeguards or to omit them, at their discretion. This is problematic on several levels. First, it means that one student (indeed, a complainant or respondent) may be treated better or worse based on an administrator’s personal feelings about them or their case. Such a result cannot stand. Second, it means that many students will, in practice, be denied these procedural safeguards, effectively depriving them of a meaningful opportunity to present their cases.

The new regulations require that the “procedural safeguards” be spelled out clearly and specifically. That is surely an improvement.

Finally,

  1. Institutions can’t handle this right now.

Critics of the regulations have argued that now was the wrong time to finalize these regulations. Subsequent headlines described the regulations as “quietly” enacted, as if there hasn’t been constant discussion of their imminence for nearly 18 months among those with an interest.

The regulations were proposed in November 2018. Over 120,000 comments were submitted, and ED had to read and prepare a response to them all. (Hence, also, the length of the supplementary information.) When that was finished, organizations opposing the regulations reportedly (according to a college administrator who also opposes the regulations) implemented a strategy to delay their release for months more. Then COVID-19 hit. Institutions had over a year before then to plan for policy revisions. And without the delay strategy, the regulations may have, indeed, been finalized before this pandemic reached the United States, or at least before it changed the landscape for schools nationwide.

In the end, if FIRE’s analysis be true, the new regulations make the system more fair, ensuring that justice is more likely to be done. They do not, as some assert, go easy on rapists, harassers, or sexual predators. And even those accused of rape deserve a fair hearing, whether it be in courts or in colleges.

FIRE says “read the document yourself”.  I haven’t, as it’s so long, and even FIRE argues that the new regulations aren’t perfect. Nor are they for me: as I said, I’d use a “clear and convincing evidence” standard. But they do seem a marked improvement over the Obama-era “Dear colleague” standards, guaranteeing that both accuser and the accused have rights and procedures that are protected.  Trump, of course, didn’t have anything to do with these changes, so if you disagree with them, you can’t pin it on him. But even a blind pig can find an acorn, and even an abysmal administration can occasionally get things right.

The New York Times finds troubling flaws in Ronan Farrow’s reporting

May 18, 2020 • 10:30 am

Now this story really knocked me for a loop, largely because I previously had no doubts about the quality of Ronan Farrow’s reporting—except, perhaps, his excessive credulity about the supposed sexual predation of Woody Allen on Ronan’s sister Dylan Farrow. (Ronan think that Woody is guilty for sure.) But perhaps that credulity underlies my other surprise, for in this New York Times article by Ben Smith, Farrow is taken to the woodshed for sloppy reporting, reporting so flawed that in fact it actually got Harvey Weinstein off on one charge of rape. Smith also casts doubts on several of Farrow’s other claims—important ones.

Click to read the story.

Farrow, the son of Woody Allen and Mia Farrow (some say his father was Frank Sinatra), became famous for his reporting on thee #MeToo movement, his book Catch and Kill, and his bringing down of two powerful figures as sexual predators: Harvey Weinstein and Matt Lauer. Nobody, least of all Ben Smith, the Times‘s media columnist, is alleging that Farrow actually made up the facts he reports. And nobody is saying that, by casting doubt on Farrow’s reportorial tactics, Harvey Weinstein and Matt Lauer are more likely to be innocent. The other evidence against them, including that adduced by Farrow, is too strong. What we have here is a journalistic spanking by Smith, calling Farrow out for being too eager to check his facts and, most important, to seek corroboration for his accusations. Also, Farrow seems to have a penchant for conspiracy theories. In short, Smith says this:

Mr. Farrow may now be the most famous investigative reporter in America, a rare celebrity-journalist who followed the opposite path of most in the profession: He began as a boy-wonder talk show host and worked his way downward to the coal face of hard investigative reporting. The child of the actress Mia Farrow and the director Woody Allen, he has delivered stories of stunning and lasting impact, especially his revelations about powerful men who preyed on young women in the worlds of Hollywood, television and politics, which won him a Pulitzer Prize.

I’ve been watching Mr. Farrow’s astonishing rise over the past few years, marveling at his ability to shine a light on some of the defining stories of our time, especially the sexual misconduct of the Hollywood producer Harvey Weinstein, which culminated with Mr. Weinstein’s conviction in February just before the pandemic took hold. But some aspects of his work made me wonder if Mr. Farrow didn’t, at times, fly a little too close to the sun.

Because if you scratch at Mr. Farrow’s reporting in The New Yorker and in his 2019 best seller, “Catch and Kill: Lies, Spies, and a Conspiracy to Protect Predators,” you start to see some shakiness at its foundation. He delivers narratives that are irresistibly cinematic — with unmistakable heroes and villains — and often omits the complicating facts and inconvenient details that may make them less dramatic. At times, he does not always follow the typical journalistic imperatives of corroboration and rigorous disclosure, or he suggests conspiracies that are tantalizing but he cannot prove.

Here’s what Smith accuses Farrow of:

1.) The first Farrow-reported accusation against Weinstein was by Lucia Evans, a college student who claimed that Weinstein lured her to his room with promises of acting jobs, and then raped her.  Although Evans said she told friends about the story, there was ultimately no corroboration of this. In fact, Evans told a police detective that her sexual encounter was consensual.  The case went to trial, but when the judge learned about the contradictory accounts of the plaintiff, the judge dismissed the case. Weinstein could have in fact raped her, but Farrow didn’t mention the holes in Evans’s story; at any rate, we know that Weinstein was convicted on other charges.

2.) An accusation of sexual assault by Matt Lauer in Catch and Kill could not be corroborated. And Farrow doesn’t mention this absence, just asserting, without details, that “he was confident that the conversation took place as described.”

In fact, when asked about the holes in these and other accounts by Farrow, both his publishers and the New Yorker, which published early pieces that turned into Catch and Kill, don’t offer rebuttals, but merely assert that they consider Farrow’s reporting solid.

3.) Farrow, says Smith, has a weakness for conspiracy theories. One, in the subtitle of Catch and Kill (“Lies, Spies, and a Conspiracy to Protect Predators”), is that NBC News wouldn’t report on the allegations against Weinstein because Weinstein said that if they did, he’d get the National Enquirer to expose NBC star Matt Lauer’s own sexual predation. According to the Times report, this isn’t true.

4.) Farrow’s other “conspiracy” involves Hillary Clinton, whom Farrow accuses of trying to quash his reporting to protect Mr. Weinstein, with whom she had a professional relationship. In fact, at the time Clinton was about to start a documentary film with Weinstein, and her people wanted to know if damaging information was going to emerge about Weinstein. This was not a conspiracy, but the Clinton camp’s attempt to protect Hillary’s reputation from being sullied by collaboration with a sexual predator. (Indeed, Clinton was predictably excoriated after Farrow’s claim of conspiracy.)

The long article has other accusations as well, and several venues, including the New Yorker, famous for its fact checking, come off looking pretty lame for not checking Farrow’s reporting. The story was just too big and juicy to sully with niggling inconsistencies, I guess.

Smith ends his piece with another swipe at Farrow’s credibility, which may seem trivial but is nevertheless a bit distressing:

Mr. Farrow has a big following on social media, too, and some of the same tendencies that undermine his reporting show up there. In January, when jurors were being selected for the Weinstein trial, they were asked what they had read about Mr. Weinstein to see if they could serve impartially. Mr. Farrow tweeted that a “source involved in Weinstein trial tells me close to 50 potential jurors have been sent home because they said they’d read Catch and Kill.”

Mr. Farrow was not in the courtroom that day, and he told me last week that his source stands by that figure. But the court reporter, Randy Berkowitz, told me that he recalled laughing with lawyers and court staff the day after about Mr. Farrow’s tweet, which he said was seen as “ridiculous.”

And Jan Ransom, a reporter who covered the trial for the Times, was there. The actual number of potential jurors who read the book, according to Ms. Ransom’s reporting? Two.

I reiterate that this is not a demolition of Farrow’s reporting, but a pretty stringent critique of his failure to adhere to journalistic standards, particularly the importance of fact-checking and corroboration.

Photo: A.J. Chavar for NPR

 

Tara Reade vs. Joe Biden: What’s the truth?

May 12, 2020 • 9:15 am

I haven’t found much about the author of this piece: Clifford MacArthur. He appears to have written just this one article on Medium (click on screenshot to read it). Nevertheless, if his assertions are correct, Tara Reade, who’s accused Joe Biden of sexual misconduct, is an outright liar. And MacArthur has a theory, which is his, about why she’s lied.

You’ve probably heard a bit about this case on the news, though the facts seem confusing.  Reade, an employee of Biden, originally said that he inappropriately rubbed her on the shoulders and neck in 1993. Then, over time, the story became more serious: this year she said that Biden actually cornered her and digitally penetrated her vagina, which is, legally, rape. Her changing story (there has been more than one change) is made less credible by the contradictions in her story, the failure of anyone to corroborate her accusations, her record of praising Biden, her history of duplicity in other venues, and at least enough evidence to suggest that her altered story was concocted because Reade was a Bernie Sanders fan and wanted to sink Biden to get her candidate nominated.

Now one can find plausible reasons why her story might be true and yet become more serious over time, and also that in the interim she could praise Biden.  Sexual assault victims sometimes don’t want to come forward immediately.  But what doesn’t hold here are the repeated changes in her story, her continuing practice (according to MacArthur) of lying, even up till now, and her apparent fabrication of details.

Altogether, MacArthur makes a pretty good case that Biden is innocent of sexual assault, even though we know he has a tendency to be “handsy”.

MacArthur wrote this piece because he was peeved that, according to the mainstream media (especially on the Right), they have bought Reade’s story, or at least found it a he said/she said affair despite numerous holes in Reade’s accusations. Apparently The Young Turks are also advocating for Reade’s account, and I believe they were big Sanders supporters as well.

Here’s MacArthur’s rational for putting together and analyzing all the data:

The mainstream media, for its part, has been focused on “reaction pieces” rather than direct coverage. What are the consequences of the story? What does it mean for #MeToo? What does it mean for the Democratic Party? How should Biden respond? There is little interest in verifying the story itself. For the most part, the media has reported Reade’s account uncritically. CNN and POLITICO, like the political extremists on social media, are motivated to sensationalize the story and present it as true.

Missing from all this coverage is an answer to the most important question: Is the story true? Did Joe Biden sexually assault a staffer in 1993? The public deserves to make an informed decision based on all the available evidence. Analyzing Reade’s statements, as well as her past and present behavior, reveals a pattern of lies and deception.

Indeed it does, and one reason I believe MacArthur’s account is that he documents most of his claims with evidence. Further, since he’s accusing Reade of lying in an attempt to damage her character and debunk her accusations, what he’s saying would be libelous if it’s false.

Here are the eight reasons, some with data, for MacArthur’s conclusion:

1.) Reade’s story has changed continuously, right up to the present (e.g., it changed between January and March, when she had already made her allegations of assault).

2.) The story is also self-contradictory. For instance, Reade has claimed since last year that she left Biden’s employ voluntarily to work in the California governor’s race, then that she left to protest American imperialism, that she voluntarily resigned because of bullying in the workplace, and, finally, that Biden fired her.

3.) There appear to be arrant lies on the part of Reade. For instance, Reade has repeatedly claimed that she filed a complaint against Biden with Senate Personnel, which should be in the National Archives. Nobody remembers that claim and there’s no record of it in the Archives. Also, Reade claims she told five people about her story, but four of them deny it, and the fifth, who says she agrees, refuses to go on the record about it.

4.) Reade appears to have fabricated “evidence”. This is a bit complicated, but involves Reade’s claim that her mother called the Larry King Show in 1993 to talk about Biden’s assault. There was a call from mom to King, but it didn’t say that, and so Reade apparently changed what she said: that the call involved sexual harassment and retaliation. It didn’t.

5.) Reade has apparently lied repeatedly about other matters over the years, and tried to scam at least one charity. She has also fabricated details of her biography, for example claiming that she qualified for the Junior Olympic in ski racing. She didn’t.

6.) Reade says she repeatedly complained about Biden, both formally and informally. Nobody seems to remember those complaints.

7.) Reade has a political motive for trying to bring down Biden.  Apparently, in 2018, Reade became a big admirer of Putin, joining those who claimed that “Russiagate” had been a big hoax designed to excuse Clinton’s defeat in the 2016 election. Many of these people were convinced that the Democrats were supposedly trying to rig the nomination in favor of Biden and against Bernie Sanders. In March, Reade started broadcasting on social media that she hoped her accusations would promote Sanders and destroy Biden’s chances.

8.) Reade has a personal motive for trying to bring down Biden. This is really a variant of #7, but with a twist. Reade seems to have been miffed at being called a Russian dupe, and was using her accusations to quash those who called her that. One excerpt:

Reade’s obsession went beyond mere tweets. When she went to Time’s Up with her sexual assault allegation, they put her in touch with several lawyers. Salon interviewed those lawyers, and they all told the same story: Reade didn’t care about pursuing a case against Biden, she wanted the lawyers to stop people from calling her a Russian agent on Twitter. Salon contacted Reade herself and she confirmed that was her goal.

In the end, MacArthur says “this is not a story of sexual assault, but of anger and revenge.”  His “Conclusions” section at the end sums up his case, even if you don’t want to read the longish piece, and I’ll let you read that for yourself.

What bothers me about how Biden has been treated here is that he’s been very conciliatory towards Reade while denying her claims. He hasn’t attacked her or explicitly impugned her credibility. Yet many women have called for Biden to apologize, almost admitting that he committed sexual assault. But, if you assume he’s innocent of Reade’s claims—which I think he is—he couldn’t have responded in a more civil way. As MacArthur says, the slogan “Believe All Women” should not mean we take their accounts at face value, or continue to publicize them if they can’t be verified. Rather, it means that their claims should be taken seriously and not dismissed, and then those claims investigated and judges. In the case of Reade, if MacArthur’s account be true, we can use Hitchens’s razor: “What can be asserted without evidence can be dismissed without evidence.”

 

apologize

Sullivan: According to his own standards, Biden’s guilty

May 1, 2020 • 1:15 pm

Many of you have read about Tara Reade’s claim that Joe Biden assaulted her 27 years ago. Although her story has varied over time, her most serious claims do allege true sexual assault—digital penetration, which the Department of Justice considers rape. As far as I know about the evidence, it’s not sufficient to convict Biden in a court of law—evidence “beyond a reasonable doubt.” But Andrew Sullivan’s point in the first part of his latest column (the other two parts are about the pandemic death toll and a new documentary about Phylis Schlafly) is that according to Biden’s own standards as promulgated in Obama’s Title IX regulations, he’s guilty as hell, or would be found so in a college “trial.”

Click on the screenshot to read the article:

This is a little bit misleading, as Sullivan sees “Biden’s own standards”, as noted above, as those he promulgated in the revision of Title IX, not the standards of American courts. But before we get to that, remember that the Title IX regulations revised by the Obama administration—Sullivan thinks Biden pushed them hard as a form of penitence for his behavior during the Clarence Thomas hearings—weakened the standard of guilt for sexual misconduct in colleges to a “preponderance of evidence” (i.e., more than 50% probability of guilt) instead of the court standards of “guilt beyond a reasonable doubt” or “clear and convincing evidence” (> 75% probability of guilt). This means that colleges could expel you and ruin your life using standards far more lax than the courts.

There were other bizarre stipulations of the Obama procedure that reduced protection for the accused. These included the prohibition of the accused getting to face and have the accuser cross-examined, the tendency to make the finder of fact (the investigator) the same person who judged the case, the prohibition of legal representation for the accused in hearings, and so on. Jeannie Suk Gerson, a professor at Harvard Law School, summarized the unfair Obama stipulations in a 2019 New Yorker article, adding how, under Trump, Betsy DeVos changed them for the better. (I think this is one of the few good things to come out of the Trump Administration.)  One of the legacies of the Obama-era regulations is that those found “guilty” in college Star Chambers have often sued the colleges, and have won at least half the time, costing universities large amounts of dosh. And there will be more such suits.

So are Biden’s own standards those that he pushed under Obama, or those of American courts? If the former, he’s surely guilty, if the latter, surely not. But Biden made one comment suggesting that courts themselves should adhere to Title IX standards. Sullivan remarks:

[Biden] brushed aside most legal defenses against sexual harassment. In a speech at the University of Pittsburgh in 2016, for example, Biden righteously claimed that it was an outrage that any woman claiming sexual assault should have to answer questions like “Were you drinking?” or “What did you say?” “These are questions that angered me then and anger me now.” He went on: “No one, particularly a court of law, has a right to ask any of those questions.”

That implies that his Title IX standards should be used in court as well. That would be a disaster for the American judicial system, changing all the standards of evidence and even its standard of guilt.

At any rate, Sullivan goes hard after Biden for this claimed hypocrisy:

On Friday’s Morning Joe, Biden laid out a simple process for judging him: Listen respectfully to Tara Reade, and then check for facts that prove or disprove her specific claim. The objective truth, Biden argued, is what matters. I agree with him. But this was emphatically not the standard Biden favored when judging men in college. If Biden were a student, under Biden rules, Reade could file a claim of assault, and Biden would have no right to know the specifics, the evidence provided, who was charging him, who was a witness, and no right to question the accuser. Apply the Biden standard for Biden, have woke college administrators decide the issue in private, and he’s toast.

Under Biden, Title IX actually became a force for sex discrimination — as long as it was against men. Emily Yoffe has done extraordinary work exposing the injustices of the Obama-Biden sexual-harassment regime on campus, which have mercifully been pared back since. But she has also highlighted Biden’s own zeal in the cause.

Do read the Yoffe pieces!

Sullivan doesn’t let up (and remember that he, like me, is going to vote for Biden):

In 2014, the Obama administration issued another guidance for colleges which expanded what “sexual violence” could include, citing “a range of behaviors that are unwanted by the recipient and include remarks about physical appearance; persistent sexual advances that are undesired by the recipient; unwanted touching; and unwanted oral, anal, or vaginal penetration or attempted penetration.” By that standard, ignoring the Reade allegation entirely, Joe Biden has been practicing “sexual violence” for decades: constantly touching women without their prior consent, ruffling and smelling their hair, making comments about their attractiveness, coming up from behind to touch their back or neck. You can see him do it on tape, on countless occasions. He did not stop in 2014, to abide by the standards he was all too willing to impose on college kids. A vice-president could do these things with impunity; a college sophomore could have his life ruined for an inept remark.

. . .By Biden’s own standards, he’s guilty as charged. He never got affirmative consent from Reade, and she feels and believes he assaulted her. He never got affirmative consent for countless handsy moves over the decades that unsettled some of the recipients of such affection. End of story. By Biden’s own logic, it is irrelevant that he didn’t mean to harm or discomfit anyone, that Reade’s story may have changed over time, that she might have mixed motives, that she has a record of erratic behavior, a bizarre love for Vladimir Putin, and a stated preference for Bernie Sanders, who was Biden’s chief rival. It’s irrelevant that she appeared to tweet that she would wait to launch her accusations against Biden until the timing was right. And her cause has been championed by the Bernie brigade. The many red flags and question marks in her case are largely irrelevant under Biden’s own campus standards.

It seems to me that Biden has a simple choice here. He can either renounce his previous astonishingly broad and illiberal view of “sexual violence” and argue for more nuance and due process so that a case like Reade versus Biden isn’t a slam dunk in advance; or he should follow his own rules and withdraw from the presidential race. He will, of course, do neither.

I’ll vote for him anyway, because Trump.

Because. . . . Trump’s record of sexual misconduct is far more damning than Biden’s. But that’s a hell of a way to vote: choosing the lesser of two predators. In the end, though, I’m not convinced that Biden is guilty of assaulting Reade. The allegations are unsettling, but they’re old, not very substantiated, and I’d rather not ruin the country by voting for a predatory Republican narcissist over a “handsy” Democrat.

Sullivan is right to point out the double standard that Biden is using now versus what he pushed on American colleges. But I think he’s being too hard on Biden by saying that voting for Biden means he, Sullivan, would “be voting for a hypocrite who wants to ruin others’ young lives for what he has routinely and with impunity done.” That all depends on whether you think that the American courts should adhere to Biden’s own Title IX standards. I happen to think the reverse—that American colleges and universities should adhere to the American courts’ standards. And under those standards, you must consider Biden as innocent until proven guilty. You don’t have to vote for him, of course, but that would be a vote for someone far worse.

UPDATE: Reader Barry pointed me to an article in USA Today by a former Federal prosecutor, detailing why he thinks Reade’s claim against Biden is very, very weak.

h/t: Simon