Microsoft Moves to End Secrecy in Sexual Harassment Claims • Hacker News Board

Re: Microsoft Moves to End Secrecy in Sexual Harassment Claims

#101

Post by rayiner » Wed, Dec 20, 2017, 5:11 PM UTC

wildmusings wrote: post #99

rayiner wrote: post #97

Earlier quoted context omitted.

> No, that isn't sound. It's a criminal matter. What distinguishes criminal matters from civil matters is the remedy sought. For example, OJ Simpson was acquitted of murder, applying criminal standards of proof. But he was found liable for wrongful death, and ordered to pay damages to the families, applying civil standards of proof. Criminal law and civil law address different concerns, and the same conduct can raise…

I disagree. The Title IX kangaroo courts were a disgrace to America. The accused had no right to an attorney, no right to remain silent, no right to face their accuser. They faced panels, of professors, college administrators, and naive fellow students, that were politically hostile to young men and that accepted allegations as necessarily true. Even in civil cases, where there is a preponderance standard, the burden…

I agree that the university processes are problematic. But the problem isn't the standard of proof. Universities were treating the Title IX process as something with criminal consequences, e.g. metting out punishments for the sexual assault itself. But if you apply civil standards of proof, you can't mete out punishments. You can only adjudicate rights: "which one of us gets to stay?" Title IX proceedings should be directed at nothing more than adjudicating that issue. There should be no public show, there should be a sealed record, etc.

> Is that the world you want to live in, where a young person's life can be ruined by a single malicious accusation?

The alternative is the world we live in, where a different kind of malicious act (a sexual assault), can force a young person to leave school, or impair her education because she's forced to continue to attend classes with someone who attacked her. For too long, the reaction to accusations of sexual assault was to shift the cost of reduced educational and career opportunities to the victims. The victims were the ones shuffled to different classes, or to different groups in the company, or encouraged to leave the school/company entirely. That's not the world I want to live in either.

You can't ignore the cost of false negatives in order to avoid false positives. In the false positive scenario, a young person is forced to leave school due to a malicious act (a false accusation). In the false negative scenario, a young person is forced to leave school, or continue to go to school with someone who attacked her, due to a malicious act (a sexual assault). Both of those outcomes are bad, and if you're being rational, you're trying to minimize SocialCost(false_positives) + SocialCost(false_negatives).

Setting the burden of proof high to minimize false positives does not minimize the total social cost. Indeed, in a world where sexual assault is far less common than false accusations thereof, it's completely irrational to set the standard in a way that minimizes the cost from false positives at the expense of increasing the cost from false negatives.

Re: Microsoft Moves to End Secrecy in Sexual Harassment Claims

#102

Post by wildmusings » Wed, Dec 20, 2017, 5:18 PM UTC

rayiner wrote: post #101

wildmusings wrote: post #99

Earlier quoted context omitted.

I disagree. The Title IX kangaroo courts were a disgrace to America. The accused had no right to an attorney, no right to remain silent, no right to face their accuser. They faced panels, of professors, college administrators, and naive fellow students, that were politically hostile to young men and that accepted allegations as necessarily true. Even in civil cases, where there is a preponderance standard, the burden…

I agree that the university processes are problematic. But the problem isn't the standard of proof. Universities were treating the Title IX process as something with criminal consequences, e.g. metting out punishments for the sexual assault itself. But if you apply civil standards of proof, you can't mete out punishments. You can only adjudicate rights: "which one of us gets to stay?" Title IX proceedings should be d…

I think you need to consider the second order effects. If we create a world where people have the power to destroy others with a mere accusation, that will change how people behave. It will create an atmosphere of vindictiveness, fear, and distrust.

Having to deal with people who have wronged you, but who you can't prove have wronged you, is just an unfortunate reality of the world. That's how all people lived before the rise of big cities (if they lived in a society with due process), and it's still how millions of people live today in America. If you live in a small town and you get robbed, or mugged, or raped by someone, but the government can't prove it in court, guess what? You can't do anything about the fact that they frequent the same supermarket and same bar, send their kids to the same school, and so forth. In the social contract, this is the cost we pay for the security of our own rights should we ever be accused of wrongdoing. (And of course, a university is not a government or a town, but for the reasons I lay out in the previous comment, I think they should be treated as almost being such. And the comparison informs our intuition as to which social cost is better; it turns out we've already done such analysis and decided, in one similar sphere.)

For obvious reasons, there's no solid numbers on the false accusation rate, but the FBI has found that 8% of forcible rape reports were found to be false by investigation. And remember, those are the cases that the accusers decided to take to police. If you were the type inclined to make false allegations, you would be further encouraged by the lower burden of proof in university tribunals.

When they opened the East German archives, they found that ordinary people had turned the Stasi into their vehicle for personal vendettas. Got into an argument with your neighbor? Scorned by a lover? Stick the Stasi on them. And this was very widespread. A system created for one purpose, to punish wrongdoers of a certain kind, ended up being used to settle personal feuds. Such is the nature of man. Give people incentives to do bad things, and they will do them.

>But if you apply civil standards of proof, you can't mete out punishments. You can only adjudicate rights: "which one of us gets to stay?"

Potayto potahto. Getting expelled from your university for sexual assault is the end of you. Whether you call it a punishment or 'adjudication of rights' is for the law professors.

(And small point: the way you're framing it is a false dilemma, since there is a third option, 'both', which I discuss above.)

Re: Microsoft Moves to End Secrecy in Sexual Harassment Claims

#103

Post by solidsnack9000 » Wed, Dec 20, 2017, 5:45 PM UTC

geofft wrote: post #98

solidsnack9000 wrote: post #54

Earlier quoted context omitted.

...if you believe that the accused is affirmatively innocent, you have to believe that the accused is guilty. This is not strictly or even practically true, but you acknowledge that later. When the defendant prevails in a court case, we don’t turn around and lock up the plaintiff. You go on to say: ...a world in which all who accuse people of sexual harassment are effectively guilty-until-proven-innocent in the court…

> If you replace “sexual harassment” with any other accusation, do you still feel the same way? Yes, I do. The reason I mention sexual harassment is that a lot of people are making accusations of sexual harassment. To believe that the accused are all innocent until I hear evidence otherwise until proven (i.e., to treat the accusations themselves and their consistency as having no information value) is to believe that…

...is to believe that all the accusers are lying.

For those I don't believe in holding the accusers guilty until proven innocent...

You've used this kind of phrasing a few times, but strictly speaking, not believing the accuser is not the same as accusing them of any crime -- being wrong is a not a crime.

It seems to me that you are saying, that practically speaking we either hold the accused guilty-until-proven-innocent, or we hold the accusers guilty-until-proven-innocent -- we have have to make a choice, in the absence of proof. Is my understanding correct?

Re: Microsoft Moves to End Secrecy in Sexual Harassment Claims

#104

Post by rayiner » Wed, Dec 20, 2017, 6:26 PM UTC

wildmusings wrote: post #102

rayiner wrote: post #101

Earlier quoted context omitted.

I agree that the university processes are problematic. But the problem isn't the standard of proof. Universities were treating the Title IX process as something with criminal consequences, e.g. metting out punishments for the sexual assault itself. But if you apply civil standards of proof, you can't mete out punishments. You can only adjudicate rights: "which one of us gets to stay?" Title IX proceedings should be d…

I think you need to consider the second order effects. If we create a world where people have the power to destroy others with a mere accusation, that will change how people behave. It will create an atmosphere of vindictiveness, fear, and distrust. Having to deal with people who have wronged you, but who you can't prove have wronged you, is just an unfortunate reality of the world. That's how all people lived before…

> I think you need to consider the second order effects. If we create a world where people have the power to destroy others with a mere accusation, that will change how people behave. It will create an atmosphere of vindictiveness, fear, and distrust.

But Obama didn't propose that accusations alone should be able to get someone expelled. He proposed applying the same preponderance standard that applies, and works just fine, in civil litigation.

> Having to deal with people who have wronged you, but who you can't prove have wronged you, is just an unfortunate reality of the world.

First, that's not true. We have both formal and informal ways of dealing with people who have wronged you, who you can't have convicted. For example, you can get a restraining order in Maryland using the same "preponderance of the evidence" standard Obama proposed for Title IX proceedings. You can sue someone for fraud or breach of contract for screwing you on a business deal, under the same preponderance standard. You can also use informal social mechanisms. Entrepreneurs live and die by their reputations, for example.

Second, this begs the question. I pointed out that in the case of both false negatives and false positives, someone is denied the opportunity to pursue their education or their employment. My thesis is that we should not treat one of those bad outcomes as being better than the other. Your response boils down to "false positives are really bad, but false negatives are just something you have to deal with." But why?

> Give people incentives to do bad things, and they will do them.

Incentives are created in both directions. How many careers do you allow Harvey Weinstein to wreck in order to avoid erroneously wrecking the career of a film producer who is innocent? That's the calculus you refuse to grapple with.

Re: Microsoft Moves to End Secrecy in Sexual Harassment Claims

#105

Post by wildmusings » Wed, Dec 20, 2017, 6:48 PM UTC

rayiner wrote: post #104

wildmusings wrote: post #102

Earlier quoted context omitted.

I think you need to consider the second order effects. If we create a world where people have the power to destroy others with a mere accusation, that will change how people behave. It will create an atmosphere of vindictiveness, fear, and distrust. Having to deal with people who have wronged you, but who you can't prove have wronged you, is just an unfortunate reality of the world. That's how all people lived before…

> I think you need to consider the second order effects. If we create a world where people have the power to destroy others with a mere accusation, that will change how people behave. It will create an atmosphere of vindictiveness, fear, and distrust. But Obama didn't propose that accusations alone should be able to get someone expelled. He proposed applying the same preponderance standard that applies, and works jus…

>But Obama didn't propose that accusations alone should be able to get someone expelled. He proposed applying the same preponderance standard that applies, and works just fine, in civil litigation.

You can't reduce civil litigation to just the preponderance standard.

Civil litigation has all sorts of rules and procedures, that ensure that the burden of persuasion rests on the plaintiff, that only fair evidence is admitted, that the accused has the benefit of his counsel. It has opportunities for dismissal, summary judgment, judgment notwithstanding the verdict. It has a fair judge and a jury of your peers (that you can shape through voir dire), not a panel of political college administrators. It allows you to question your accuser. It allows you to acquire evidence through discovery, and gives you the benefit of an inference if the other party destroys it.

For what it's worth, here is what a bunch of professors at my law school had to say about Obama's Title IX policy: http://media.philly.com/documents/OpenLetter.pdf

>I pointed out that in the case of both false negatives and false positives, someone is denied the opportunity to pursue their education or their employment.

Except, again, this is not true. The third option is the status quo, that both persons may continue to pursue their education.

Re: Microsoft Moves to End Secrecy in Sexual Harassment Claims

#106

Post by tptacek » Wed, Dec 20, 2017, 7:15 PM UTC

wildmusings wrote: post #105

rayiner wrote: post #104

Earlier quoted context omitted.

> I think you need to consider the second order effects. If we create a world where people have the power to destroy others with a mere accusation, that will change how people behave. It will create an atmosphere of vindictiveness, fear, and distrust. But Obama didn't propose that accusations alone should be able to get someone expelled. He proposed applying the same preponderance standard that applies, and works jus…

> But Obama didn't propose that accusations alone should be able to get someone expelled. He proposed applying the same preponderance standard that applies, and works just fine, in civil litigation. You can't reduce civil litigation to just the preponderance standard. Civil litigation has all sorts of rules and procedures, that ensure that the burden of persuasion rests on the plaintiff, that only fair evidence is ad…

Title IX adjudication has rules and procedures. It's just that nobody thinks they're good enough. But more to the point: the result of a civil suit can include someone stripping you of your personal, material property by force of law. The stakes are higher than they are in Title IX.

Re: Microsoft Moves to End Secrecy in Sexual Harassment Claims

#107

Post by wildmusings » Wed, Dec 20, 2017, 7:21 PM UTC

tptacek wrote: post #106

wildmusings wrote: post #105

Earlier quoted context omitted.

> But Obama didn't propose that accusations alone should be able to get someone expelled. He proposed applying the same preponderance standard that applies, and works just fine, in civil litigation. You can't reduce civil litigation to just the preponderance standard. Civil litigation has all sorts of rules and procedures, that ensure that the burden of persuasion rests on the plaintiff, that only fair evidence is ad…

Title IX adjudication has rules and procedures. It's just that nobody thinks they're good enough. But more to the point: the result of a civil suit can include someone stripping you of your personal, material property by force of law. The stakes are higher than they are in Title IX.

Read the document I linked to see just how much of a joke those procedures were. That letter was signed by law professors ranging from extremely liberal to extremely conservative, so there was nothing ideological about their conclusions.

The stakes in a Title IX suit are not really lower in reality, if they are in theory. First, a senior expelled from a private university in their fourth year has been deprived of 1) over $200,000 spent towards a diploma they will now never receive, 2) the opportunity cost of four years of their life, 3) enormous lost future income, as they are now excluded from most professional positions, and 4) other reputational damage resulting from an adjudication that they committed sexual assault. It is an extremely rare civil suit that can actually have such catastrophic consequences for someone's life.

Re: Microsoft Moves to End Secrecy in Sexual Harassment Claims

#108

Post by grandmczeb » Wed, Dec 20, 2017, 7:26 PM UTC

eigenstuff wrote: post #95

grandmczeb wrote: post #35

Earlier quoted context omitted.

News organizations aren’t immune from getting it wrong though. The Duke lacrosse case and Brian Banks are two prominent examples.

The Duke Lacrosse case wasn't uncovered by journalists, though.

The reporters involved ignored massive inconsistencies in the accuser’s story and twisted facts to advance a narrative - the opposite of due diligence. Wether they uncovered the story or not isn’t relevant.

Re: Microsoft Moves to End Secrecy in Sexual Harassment Claims

#109

Post by harryh » Wed, Dec 20, 2017, 7:43 PM UTC

wildmusings wrote: post #107

tptacek wrote: post #106

Earlier quoted context omitted.

Title IX adjudication has rules and procedures. It's just that nobody thinks they're good enough. But more to the point: the result of a civil suit can include someone stripping you of your personal, material property by force of law. The stakes are higher than they are in Title IX.

Read the document I linked to see just how much of a joke those procedures were. That letter was signed by law professors ranging from extremely liberal to extremely conservative, so there was nothing ideological about their conclusions. The stakes in a Title IX suit are not really lower in reality, if they are in theory. First, a senior expelled from a private university in their fourth year has been deprived of 1)…

I think that marcoperaza and tptacek/rayiner might actually be pretty close to being on the same page here.

I don't think(?) that marcoperaza is saying that Title IX courts should have the same rules and procedures as a criminal court. It's acceptable to have a lower standard of evidence and, to a degree, relaxes rules of procedure. Especially if these rule changes are paired with limitations on penalties: as rayiner suggests no punitive punishment, just expulsion (which I agree is serious) and sealed records.

Similarly I would bet that tptacek & rayiner would agree that in some cases Title IX courts got a little off the rails with their procedures: possibly lowering the standard of evidence below "preponderance of evidence" to just "some evidence at all" or maybe in some of the worst cases "just an accusation." In addition the methods of defense left to the accused were probably not sufficient in some cases. Their ability to view and present evidence and witnesses was overly curtailed and that needs to be fixed.

Re: Microsoft Moves to End Secrecy in Sexual Harassment Claims

#110

Post by tptacek » Wed, Dec 20, 2017, 8:02 PM UTC

harryh wrote: post #109

wildmusings wrote: post #107

Earlier quoted context omitted.

Read the document I linked to see just how much of a joke those procedures were. That letter was signed by law professors ranging from extremely liberal to extremely conservative, so there was nothing ideological about their conclusions. The stakes in a Title IX suit are not really lower in reality, if they are in theory. First, a senior expelled from a private university in their fourth year has been deprived of 1)…

I think that marcoperaza and tptacek/rayiner might actually be pretty close to being on the same page here. I don't think(?) that marcoperaza is saying that Title IX courts should have the same rules and procedures as a criminal court. It's acceptable to have a lower standard of evidence and, to a degree, relaxes rules of procedure. Especially if these rule changes are paired with limitations on penalties: as rayiner…

I think pretty much everyone agrees that Title IX went off the rails, right?

The dispute here seems, by my reading, to be between two prescriptions for moving forward:

(1: Rayiner): The problem with Title IX is one of matching scope with procedural rigor. We don't need to raise the level of rigor to that of a courtroom if we constrain the scope and thus the consequences of an adverse action under Title IX.

(2: marcoperaza): The problem with Title IX is a simply a lack of procedural rigor. Any adverse action, no matter how tightly scoped, is problematic without the protections provided to the accused by a courtroom.