The lightning-speed fall of Patrick Brown has no particular lessons for similar cases, but it does raise questions about how to deal with allegations of sexual misconduct.
Twenty years after President Bill Clinton – with the essential assistance of his wife – steamrollered his victims with character assassination and legal maneuvering, the rules have changed. Now it is the alleged perpetrators who are complaining about being railroaded – not steamrollered, as that vehicle moves too slow – by a process that reaches a conclusion within days, if not hours.
Set aside, though, Patrick Brown and his friend, former MP Rick Dykstra. The latter, after being defeated in the 2015 federal election, was installed by Brown as president of the Progressive Conservative Party of Ontario.
Dykstra resigned days after Brown for also allegedly doing what Brown allegedly did. And it is those “allegedlys” that are giving some people pause. A few hours does not seem sufficient to arrive at a mature judgement about the facts, let alone the appropriate consequences of those facts.
But forget about Brown. He was not fired. In fact, he couldn’t be. He was accused, and among those who know him very well, who worked with him every day, not a single voice was raised in his defense.
A parliamentary caucus can express its unanimous lack of confidence in its leader anytime it wishes. It’s up to the leader to decide whether he wants to stay and fight against his staff and his caucus. Yes, it was unseemly that the caucus was so eager to bury him before dawn’s early light, but then so much about Brown’s leadership was unseemly. What was catastrophic for Brown was not so much that two women came forward with accusations, but that nobody – man, woman or child, save for his own sister – offered a peep in his defense.
Other cases are more complex. An accusation is made, a revelation comes to light, and an employer is required to make a decision. Sometimes the employer has received the accusation directly, and so has some information upon which to make a judgement. Other times the report is in the media, and the employer does not even know who is making the accusation, let alone have the capacity to make a judgment about its credibility.
Is this fair? No, it’s not. But it’s not going to be, because it can’t be.
Criminal charges are straigthtforward. Police and prosecutors – though they can abuse their power too – make a determination to lay charges based on some credible testimony and evidence. The employer can then put the employee on leave while the matters make their way through the courts.
If the court determines guilt, the employer terminates the employment. If the court returns a not guilty verdict, then the employer can review the evidence in the public record. Given that employers do not – nor should they – employ the criminal standard of proof beyond a reasonable doubt, they might still proceed with disciplinary action or termination based on evidence at trial.
But very few sexual misconduct cases ever go to criminal, or even civil, court. If the alleged actions were a crime, it might be that the evidence at hand is insufficient for the criminal standard. Sometimes the alleged actions are not a crime for which the Crown would normally bring charges.
The behavior might be sinful, beastly, exploitative, professionally prohibited or simply gross. It might contravene labour regulations, or codes of conduct – professional, academic or otherwise. But it might not be criminal.
That leaves the employer, or professional association, or political party, or entertainment studio, or nonprofit association, or hockey team, or church, in the position of having to evaluate the credibility of the accusation, conduct an investigation and render a judgement. Most of them simply do not have the resources to do that adequately, so they cut ties to err on the side of caution.
If the media airs the accusation, but the accusers are not revealed, the employer is in a most difficult position. There might be serious wrongdoing, but there is no capacity to investigate it.
Before the media is given a convenient thrashing, it should be remembered that that standard for journalists is not to establish the truth beyond doubt, but to report what people are saying, and how they are saying it.
For example, a delusional crackpot could show up outside convocation hall and claim that the university chancellor is molesting undergraduates in the dormitories. A responsible journalist could certainly report that story, namely that a delusional crackpot was making such claims. It would be a true story. The journalist might not choose to report at all, judging that delusional crackpots are not of great interest to his readers. On the other hand, it might well be that the crackpot attracted a small crowd and it was the most newsworthy thing that day on a sleepy campus.
But the relevant cases are not about delusional crackpots. When a journalist reports that a source is making accusations for which there appears to be some corroborating evidence, that is all that he is reporting. It is not required that it be proven true, or even that the reporter believes it to be true to pass journalistic muster. Journalists are more in the evidence-presenting business than the judgement-rendering business. A certain cable news network used to boast about that: We report. You decide.