Sexual Harassment and Sexual Assault Revelations Surging in and Internal Legal Procedure

By Nick Levinson

The recent surge in public reports of sexual harassment and sexual assault including rape by well-known men and men in leadership positions in looks to me like a legal procedure is being applied that shows even in the context of the difficulty of getting cases into U.S. courts the prevalence of the problem, a prevalence that hardly began only in recent decades.

The pattern seems to be that some complaints are being examined by outside attorneys or journalists using methods guided largely by how lawyers would examine it, and are doing so not primarily from individual plaintiffs’ viewpoints but from the viewpoints of potential defendants who are employers of or contracting with the alleged perpatrators. Those potential defendants are looking alarmed at substantial chances of expensive settlement payouts, as described by their own trusted attorneys.

Old files are likely being opened because investigating counsel are concerned about subpoenas and depositions revealing information to litigating plaintiffs’ counsels, so that even cases once disposed of are being reexamined, even if that means contacting people who left the relevant organizations.

A perpetrator seems always to have multiple complainants, in these reports. That suggests that, while counsel may feel they could win against a single complainant by making her seem not credible enough for a jury award, that would be too difficult against multiple complainants describing contact with one perpatrator in ways that show some similarities, even where each plaintiff’s case is tried separately.

Journalists may be ignoring weaker cases, such as sole-complainant cases, in order to preserve institutional credibility and financial resources for stronger cases, but a large number of sole-complainant cases are likely occurring, too.

A nonlegal reason may also be leading to more of these firings of and disassociations from perps: larger percentages of leadership and middle-management positions are now fulfilled by women, compared to a few decades ago, like even as late as when Anita Hill’s complaint became public.

Thus, even if it is true that sexual harassment cases have become harder for survivors to litigate (I think I read that the Supreme Court had narrowed the possibility of survivors winning hostile environment cases, which are much more common than quid pro quo cases) and despite the spread of arbitration systems that probably destroy or hide many claims from female workers, cases that can survive litigation and yield costly outcomes favoring the women are growing in number.