Opinion

Jack Shafer

Who gets to be anonymous?

By Jack Shafer
November 9, 2011

Yesterday, The Daily was first to name Karen Kraushaar as one of the two women who worked with Herman Cain at the National Restaurant Association and accused him of sexual harassment. As the Poynter Institute’s Kelly McBride wrote, Business Insider and the Daily Caller repeated the Daily‘s report that Kraushaar had made the sexual harassment claim, and NPR got her to confirm her identity as “Woman A.” Shortly thereafter, Kraushaar was talking to the New York Times, and the whole world knew who she was.

For what good reason was Kraushaar’s identity concealed in the first place?

Politico, which broke the sexual harassment claims story on Oct. 31, didn’t really explain why it did not name the accusers in its scoop, reporting only that it had “confirmed the identities of the two female restaurant association employees who complained about Cain but, for privacy concerns, is not publishing their names.”

Why grant accusers anonymity for reasons of “privacy,” but not the accused? It makes no sense, especially in the Cain episode. No legal finding of sexual harassment was made, and the only evidence that Cain committed sexual harassment is that cash settlements of $35,000 and $45,000 were reportedly paid to the two accusers. But that’s no evidence at all—the cost of defending a sexual harassment charge is so steep that paying severance of $35,000 is a bargain even if a case has little merit.

Mind you, I’m not saying that the charges against Cain have no merit. I’m as open to the argument that he created a hostile environment of sexual harassment as defined by the law as I am to other interpretations of his alleged conduct (that he’s fresh, that he’s a masher, that he’s a creep on autopilot, that he’s wicked Uncle Ernie, that he’s stepped out of line too many times, and that you’d rather have your daughter walk 10 miles home barefoot in the snow than to accept a ride home from him).

But I’m also open to the possibility that he’s no rampaging sexual monster—and you should be, too.

Politico’s decision to bestow a privacy setting on the accusers put Cain in a tough position. If he names them in an attempt to refute the charges he opens himself to charges of “violating” their privacy. By not naming them, he resigned himself to fighting phantoms.

As a phantom-fighter, Cain has not impressed, I should add. Combing through the various defenses he mounted, I was struck by their non-denial denial quality. Cain kept saying that he had not committed sexual harassment and that appears to be legally true. I know of no legal finding of sexual harassment against him. By definition, his alleged encounter with Sharon Bialek would not rise to a case of sexual harassment because she wasn’t working for him or with him at the time. (It may qualify as sexual assault, although it would have been difficult to prove as many have noted.) The question people want answered is not whether his behaviors fall under the definition of sexual harassment but whether he routinely violates current socio-sexual norms in the workplace. And Cain knows it.

Another Cain accuser—one who did not file a sexual harassment complaint—told her story to the Associated Press and the Wall Street Journal last week. “She said the behavior included a private invitation to his corporate apartment” and that he had “made sexually suggestive remarks or gestures,” according to the AP. Both the AP and the Journal gave the woman anonymity because she feared “retaliation.”

Retaliation? What sort of retaliation? The accuser described in the AP and Wall Street Journal no longer works for Cain, so he can’t directly retaliate. Obviously, he could hire detectives or others to stalk and bully his accusers. But assuming that Cain knows who has made the charges—and I think that’s a safe assumption—he’s already in a position to stage such retaliation if they ask reporters for anonymity. The fears of retaliation are a journalistic fig leaf, designed to serve reporters who want to coax a story out of reluctant sources. Few sources are ever beyond the long arm of the accused bent on retaliation.

You could say that Bialek and Kraushaar are suffering a kind of retaliation now as the press questions the motives of Cain’s accusers. The AP reports today that Kraushaar filed a second complaint against employers at the job she got after leaving the National Restaurant Association, making her look like a bit of a serial accuser. Bialek, meanwhile, is being cast as a post-bankruptcy gold-digger in the press.

I doubt very much whether any of the accusers are much appreciating the scrutiny being directed at them. I know I wouldn’t. But that doesn’t mean the press should conceal their identities. Under our system of law, bringing accusations of wrongdoing and other acts of whistleblowing is not an easy thing, nor should it be. It requires stamina and patience, and a willingness to be cross-examined. As it should! Sometimes false accusations are brought and the accused is innocent. He is just as deserving of justice as the accuser.

The shape of the Cain debate and the press treatment of the accusers both imply that we think sexual harassment is such an incendiary offense that we must observe a taboo against naming accusers. It also implies that we think that those accused of sexual harassment are so all-powerful in today’s culture that they can destroy accusers via “retaliation.”

I reject both of those views with the same vehemence that I reject the idea that women who bring civil charges of sexual harassment in the workplace must be treated like delicate flowers that will wilt and expire if scrutinized. If you’ve ever filed criminal or civil charges—or sat on a jury—you don’t need me to tell you that justice is never easy. The accused have the right to meet their accusers in court, even when it makes the accusers uncomfortable, a standard that the press—allegedly a bastion of openness and reproducible results—should observe, too. Privacy for accusers is a cop-out.

******

I sketched out some of these thoughts this afternoon in a Poynter chat with Kelly McBride and Mallary Tenore. Make your complaints against me public by tweeting at my Twitter feed. Or send them via email to Shafer.Reuters@gmail.com. Sign up for email notifications of new Shafer columns (and other occasional announcements). Subscribe to this RSS feed for new Shafer columns and subscribe to this hand-built RSS feed for corrections to my column.

PHOTO: Sharon Bialek speaks during a news conference accusing Republican presidential hopeful Herman Cain of sexual harassment in New York, November 7, 2011. REUTERS/Brendan McDermid

Comments
6 comments so far | RSS Comments RSS

Mr. Shafer, it is brave of you to engage in this sensitive topic. I applaud your sensitivity and recognize the need to have this discussion. But as I understand these things, the underlying assumption is that since men are stronger and more aggressive, nearly any innuendo is potentially threatening to a woman. Furthermore the history of victim persecution makes women even more vulnerable.

So yes, it isn’t exactly fair that potential victims get more protection than potential perpetrators. But justice isn’t a private matter. It is a social matters that must take history and general perceptions into account.

This can be confusing to a man. Some women are flattered by overt come ons. That is fine for her. But all women are not that way and one must be sensitive to how each person wants to be treated.

As a man, if I were falsely accused of improper sexual advances, the first thing I would do would be to apologize for what ever I might have done to give the woman the false impression that I was flirting. I would offer the accuser the opportunity to explain how they felt about my actions and ask what I could have done differently. I would be sensitive to the history of men abusing women and show that I understand and care.

Posted by LEEDAP | Report as abusive
 

I’m afraid that the situation with Cain makes anonymity more deserved than it would be if the women were accusing a no-name executive of harassment. The no-name executive might get angry and justifiably demand proof; the Cain campaign apparently is setting out to destroy accusers and intimidate others who might be considering complaints; see http://www.washingtonmonthly.com/politic al-animal/2011_11/cain_campaigns_notsosu btle_thr033413.php

Asking for justice shouldn’t entail the risk of having media set out on a mission of personal destruction against you.

SRS

Posted by Steven_R_Stahl | Report as abusive
 

Since Cain has been in the workplace for decades – as a boss for a significant period of that time – and there isn’t a record of sexual harassment or improper sexual advances against him before or since the 3 year period he was the head of the NRA, why would anyone even ask him whether he routinely “violates current socio-sexual norms in the workplace”? Its obvious that he doesn’t. Even if he was guilty of an indiscretion during his tenure at the NRA,that still doesn’t imply that he “routinely” does this sort of thing. The only implication is that during this 3 year period, he may have “slipped” but nothing more.

Posted by ileanaf | Report as abusive
 

The prior commentator stated- “So yes, it isn’t exactly fair that potential victims get more protection than potential perpetrators.” The potential problem which is entirely ignored here is that the so-called potential victim may be a potential violator in the context of the possibility of false charging/accusations. This possible error occurs because the de facto presumption of guilt by the one so charged.

And as for apologizing by a man who has been falsely charged to the one who charged him, such apology does not seem too meaningful to me when the apologizer has a gun pointed at his head. Interesting that there appears to be no apology requested by the one doing the false charging.

Posted by travisolated | Report as abusive
 

Good article. Way to call out the press. It should be noted that harassment (of any kind) has certain requirements in order to be classified as such. You must tell the accuser to stop, you must document the behavior and then when the third strike hits, he (or she) is done for.

I know the gist of your article was more along the lines of critiquing the press in this scenario but a nice exploration of just what it takes for something to legally become documented proof of harassment might be a good idea for a future article

Posted by RailBended | Report as abusive
 

I’m with the idea — albeit not without some uneasiness — that Politico should have named the two people who obtained settlements with the NRA. What I don’t go with is that “No legal finding of sexual harassment was made, and the only evidence that Cain committed sexual harassment is that cash settlements of $35,000 and $45,000 were reportedly paid to the two accusers. But that’s no evidence at all—the cost of defending a sexual harassment charge is so steep that paying severance of $35,000 is a bargain even if a case has little merit.”

That’s crossing a few too many bridges that have not yet, for reasons beyond our control, been arrived at. Through no fault of the complaintants, the NRA, Cain, Politico, etc., (the etc. designates anyone I missed) the settlements are confidential. It’s not that there is no evidence, it’s that we don’t know what it is. Except for the fact of the settlements themselves. That’s evidence.

Asserting that organizations settle rather than litigate flies in the face of standard policy in the business community to litigate the hell out of everything, because they have more resources than lowly one-off complaintants. Settlements also keep messy, embarrassing details out of the eye of the press (i.e, the public), the shareholders, and, in the case of membership organizations like the National Restaurant Association, the members. At a minimum, that’s a context that ought to be filled in.

George Orwell once said that saints ought to be considered guilty until proven innocent; the same goes for people who claim they’ve never in their life done anything inappropriate.

For most of we more mortal beings, the answer to the question of inappropriate behavior? would be, I’ll start with today and work backwards.

Dan

Posted by dbuck | Report as abusive
 

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