What to Ask When Decades-Old Harassment Surfaces

(Bloomberg View) -- A few weeks ago, in a meditation on the allegations that have followed the Harvey Weinstein revelations, I described how we’d know if we’d come to a real watershed in our cultural tolerance of sexual abuse:

We’ll know we’ve made progress when women are willing to accuse men at the height of their powers, men who can hurt them for years to come -- or benefit them in exchange for their silence. And when the people around those men move swiftly and without hesitation to deprive them of the power they’ve abused, even though they’ll be tainted by the scandal, even though they’ll suffer personal costs from the loss of an ally.

The intervening weeks have unleashed a flood of accusations against younger men in the entertainment industry. But now we’ve come to the real test: Senator Al Franken has been accused of sexual harassment by Leeann Tweeden, a newscaster and former model.

In 2006, on a USO tour, Franken the comedian was in a skit with Tweeden, and she says that during a rehearsal for a scene in which his character tries to kiss hers, Franken grabbed her and put his tongue in her mouth. Later, he posed for a photo in which he appears to be groping her breasts while she’s asleep. (It’s not clear whether he did actually grope her; to my eyes, given the shadows under his hands, it looks as if he’s simply miming it.)

To their credit, high-ranking Democrats are calling for an ethics investigation into one of their own. Given the underwhelming efforts Congress has made to investigate its troublemakers in the past, that seems like a definite sign of change. But what will happen after the ethics investigation? Will Franken reiterate the apology he’s already made, and be subject to a toothless censure from the Senate? Since he’s not up for re-election for years, that doesn’t seem like much of a consequence.

Alternatively, the Senate could move to expel Franken (or more realistically, make it clear that they’re going to expel him, and allow him to resign in advance of the formal separation). But Democrats will, understandably, be reluctant to shove out a political ally. And Republicans will probably be reluctant to go forward without the blessings of Democratic leadership, because they probably wouldn't want to evict the suspect members of the GOP and defend those seats against Democrats.

Which leads me to a question I’ve been asking myself over the last few weeks: As the accusations of sexual harassment snowball, how ready are we for the consequences of rewriting the sexual rulebook so drastically, all at once?

When I ask this, I’m not thinking of people like Weinstein, whose behavior was very far over any line we might care to draw between “appropriate” and “inappropriate.” I'm thinking of circumstances more like the allegations against Franken. I've thought of the older man who pestered me to give him a birthday kiss -- on the lips -- when I was 17. The young man celebrating his birthday in a bar, who grabbed me and kissed me, at great length. (What is it with birthdays, anyway?) The many men I’ve worked with who liked to tell dirty jokes. (Let me hasten to add: Not colleagues in my current job!)

I had mixed reactions to these attentions, from stammering and twisting my way out of the older man’s attempted embrace, to telling a few dirty jokes myself. How many of those guys would I want to see publicly shamed, fired and shunned? The answer, I’ve concluded, is none of them.

These events, after all, took place at least two decades ago. In some cases, cultural norms really have changed. I’d be shocked now to hear a really dirty joke told at work, but in my early twenties, I don’t recall even being mildly nonplussed. I’m not saying that the norms of those workplaces were right, but I am saying that the men who told them did not have mens rea: the knowledge that they were doing something wrong. And in general, it’s a bad idea to punish people for trespassing against rules they didn’t know. Or rules that didn't exist.

But even if they had known, I still wouldn’t be eager to out and punish them now. I did a lot of things decades ago that I regret, and I would hate to be held accountable for them now as if they’d happened last week. And since I hope to grow and change a bit in the coming decades, I’d also hate to be punished in some far tomorrow for the norms -- or even the folly -- of today.

So it seems worth asking whether we need some sort of statute of limitations on these kinds of offenses in our culture, not just in our laws. It would not be a blanket pardon for anyone who manages to go unreported through the five- or 10-year mark. It would be a mitigating factor in deciding how to respond in the present to actions from another time: autre temps, autre moeurs.

The question when confronted with reports of decades-old misdeeds is not “Would this guy be a creep if he did this today?” Better to ask: “Was he better or worse than his environment?” And also: “Is there reason to believe he might have changed since then?”

Some cads and criminals would fail all these tests. And if the offense was last year, or if the accused attempts to intimidate the victim or explain away the transgression, then the answer to those questions is probably “No.” But if a man shamefacedly confesses that he made a mistake decades ago, through bad understanding or bad judgment, just how far are we willing to go in shunning him? To the same extreme we would for a recent, remorseless, serial offender?

If so, how many of us are willing to live under that standard -- in which the sins of our distant past are ripe for litigation at any moment? In which the court of public opinion issues the same summary judgment immediately after every accusation? In which every defendant's reputation and contributions are discarded into the same garbage heap, no matter what the age or nature of the offense?

Victims have lived in fear and silence for too long, and it’s a tremendous achievement that more now feel able to speak out. But in dealing with these transgressions, our aim should not just be to shift the shoe to the other foot. It should be to build a world in which there is less fear to go around.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of “The Up Side of Down: Why Failing Well Is the Key to Success.”

To contact the author of this story: Megan McArdle at mmcardle3@bloomberg.net.

To contact the editor responsible for this story: Philip Gray at philipgray@bloomberg.net.

For more columns from Bloomberg View, visit http://www.bloomberg.com/view.

©2017 Bloomberg L.P.