Many people have come to doubt whether Al Franken was treated fairly when he was forced to resign from the Senate over allegations of sexual misconduct. (AP Photo/J. Scott Applewhite)
ASSOCIATED PRESS
In this week’s issue of The New Yorker, the prominent journalist Jane Mayer has written a piece that is highly critical of the frenzy that led to the forced resignation of Al Franken from the Senate. Mayer described Franken’s fall as “stunningly swift”—so swift that it left far too little time to sort the facts. In retrospect, it seems that the woman who accused Franken of sexually harassing her at a U.S.O. tour in Afghanistan made a number of inaccurate statements, including the claim that Franken had written a kissing scene specifically for her and Franken to perform.
The situation escalated rapidly as word spread that eight different women had accused Franken of unwanted sexual behavior. The number “eight” received far more attention than the substance of what was actually said. One accusation was that, after a woman asked Franken to pose with her and put her arm around his shoulder, he “squeezed her waist in a creepy way”. Obviously, the term “creepy” is very subjective, but minutes after the photo was taken, she posted it with the comment “Totally stoked. So suck it.”
Two of the other accusations were anonymous. One of the accusers, whose name is still being withheld, had said, in Mayer’s words, “in 2006, when Franken was still a comedian, he had made her uneasy by looking as if he planned to kiss her.”
There were other accusations as well, including one by a woman who said he grabbed her rear end. But the wave of condemnation was so fast and furious that little effort was made to sort out the facts. The situation culminated with the Senate Majority Leader, Chuck Schumer, telling Franken that he had to resign from the Senate by 5pm that night or he would be censured and stripped of all committee assignments. A promised investigation by the Senate Ethics Committee never happened.
Jane Mayer writes that: “Seven current and former U.S. senators who demanded Franken’s resignation in 2017 told me that they’d been wrong to do so. Such admissions are unusual in an institution whose members rarely concede mistakes.”
The Franken situation contains a number of lessons for universities that are responding to accusations of sexual assault or harassment by their students. Perhaps the most important one is not to rush to judgment. Unfortunately, the courts are far too lax about allowing universities to proceed at breakneck speed in expelling accused students. An excellent example of this is the case Yu v. Vassar College, where a student filed a complaint against Peter Yu a full year after the alleged sexual assault. Numerous exchanges between the two students seemed to negate any inference that she felt endangered by him or that he was threatening her in any way. For example, she messaged him: “I’m really sorry I led you on last night I should have known better then to let myself drink yet, I really don’t want this to effect our team dynamic or friendship. I don’t think any less of you at all I had a wonderful time last night I’m just too close to my previous relationship to be in one right now”
Nonetheless, once the student filed her complaint Vassar moved so quickly against him that he stood no real chance at defending himself. He was expelled eight days after he first saw the charges and only three days after he was first allowed to review the file. He brought legal action to contest his expulsion, but the court held that students have no right to see the charges against them or any evidence in a timely manner. In fact, the court held that Yu was given more than the time that due process required, noting that “courts have not disapproved of notice of charges given just one day prior to the hearing.”
Of course, there are circumstances where the accused person presents an imminent danger to the accuser or to others. Such circumstances do indeed require swift action. But even in these cases, those swift measures should be taken only on an interim basis, while fact-finding goes forward at a more measured pace. Furthermore, there was no reason to believe that Yu (or Franken) posed an imminent danger to anyone.
Not everyone agrees with Mayer’s characterizations of the Franken case. But it is a very positive development that the media is taking a sober second look at the frenzied situation that led to his forced resignation. This moment of reflection should no be limited to Franken’s situation. As I write in my book Campus Sexual Assault: Constitutional Rights and Fundamental Fairness, the process for adjudicating sexual assault accusations is deeply flawed at many colleges.
In fairness to colleges and universities, they are in a tough situation as non-judicial institutions trying to sort through complex situations in which memories are often clouded by alcohol and stress. One way to help colleges do a better job would be for courts to insist that they slow down. The idea that it is sufficient to give a single day of notice of charges prior to a hearing that might result in expulsion for a sex offense is simply outrageous. The courts, of all institutions, should understand the importance of not rushing to judgment.
