Sexual justice Supporting victims, ensuring due process, and resisting the conservative backlash

Although cultural moments like the Obama administration's Dear Colleague letter and the #MeToo movement have offered new space for survivors of sexual harassment to make their voices heard, the attendant backlash has been acute. Civil rights lawyer Brodsky argues that good policy requires neither the abrogation of due process nor a lack of care for victims. Rather than a one-size-fits-all policy that can be applied in every possible setting (criminal and civil courts, university disciplinary hearings, workplace mediations, etc.), Brodsky advocates for procedures that take into account the stakes for the accuser and the accused, as well as the social and institutional contexts in which the accusation has been made. Institutions should steer clear of rape exceptionalism, a position that treats sexual harm differently from any other offense and makes policies around dealing with it uniquely vulnerable to gendered bias. Instead, Brodsky recommends just and compassionate policy in which the requirements around evidence and process arise from the consequences for the parties involved, rather than the type of offense committed. A level-headed, thoughtful, and necessary book.

Civil rights lawyer Brodsky (coeditor, The Feminist Utopia Project) offers a clear-eyed assessment of how to improve the adjudication of sexual harassment claims within schools, businesses, and other institutions. She notes many reasons why victims often don't come forward, including opaque reporting and decision-making processes, fears of retaliation, and the historical inability of the criminal justice system to convict perpetrators. She also explains how arbitration clauses in hiring agreements favor institutions, and notes numerous examples of corporations and organizations protecting high-level harassers and silencing victims. Brodsky persuasively argues that timely and structured due process for those accused of sexual harassment is essential to the credibility of any enforcement system, and outlines criteria for a fair hearing, including a clear definition of what constitutes sexual harassment, a mechanism for both sides to submit questions to the other, a ruling made by "unbiased decision-makers," and an appeal process. Her most radical suggestion is that sexual harassment claims should be "de-exceptionalized" and handled through the same disciplinary process as race-based discrimination and other civil rights disputes, because "singling out sexual assault for extra punishment... make it harder for a victim to prove her case." Policy makers and institutional leaders will appreciate this balanced look at how to address a thorny problem. (Aug.)