- Nov 2021
Kipnis, who was accused of sexual misconduct because she wrote about sexual harassment, was not initially allowed to know who her accusers were either, nor would anyone explain the rules governing her case. Nor, for that matter, were the rules clear to the people applying them, because, as she wrote in Unwanted Advances, “there’s no established or nationally uniform set of procedures.” On top of all that, Kipnis was supposed to keep the whole thing confidential: “I’d been plunged into an underground world of secret tribunals and capricious, medieval rules, and I wasn’t supposed to tell anyone about it,’’ she wrote. This chimes with the story of another academic, who told me that his university “never even talked to me before it decided to actually punish me. They read the reports from the investigators, but they never brought me in a room, they never called me on the phone, so that I could say anything about my side of the story. And they openly told me that I was being punished based on allegations. Just because they didn’t find evidence of it, they told me, doesn’t mean it didn’t happen.”
While the accusers should definitely be believed and given a space to be heard and prosecute their cases, one of the most drastic harms I see here and repeated frequently are Universities sitting as judges and juries for harms that should be tried in the courts.
These cases have been removed entirely from the public social justice system and are tried in a space that is horribly ill-equipped to handle them. This results in tremendous potential for miscarriage of justice.
If universities are going to engage in these sorts of practices, they should at least endeavor to allow all parties to present their sides and provide some sort of restorative justice.
Somewhere I've read and linked to (Reddit?) communities practicing restorative justice in doing these practices. As I recall, it took a lot of work and effort to sort them out, but it also pointed to stronger and healthier communities over time. Why aren't colleges and universities looking into and practicing this if they're going to be wielding institutional power over individuals? Moving the case from one space to the next is simply passing the buck.
Last year Joshua Katz, a popular Princeton classics professor, wrote an article critical of a letter published by a group of Princeton faculty on race. In response The Daily Princetonian, a student newspaper, spent seven months investigating his past relationships with students, eventually convincing university officials to relitigate incidents from years earlier that had already been adjudicated—a classic breach of James Madison’s belief that no one should be punished for the same thing twice. The Daily Princetonian investigation looks more like an attempt to ostracize a professor guilty of wrong-think than an attempt to bring resolution to a case of alleged misbehavior.
The example of Joshua Katz brings up the idea of double jeopardy within the social sphere. Is this form of punishment ethical or fair? Also, while those transgressions were held to account by the norms of their day, were there other larger harms (entailing unwritten rules) to humanity that weren't adjudicated at the time which are now coming to the surface as part of a bigger aggregate harm?
It could be seen as related to the idea of reparations. In some sense, aside from the general harms of war—in which they participated—the South and slave holders in particular were never held to account or punished for their crimes against humanity. Though they may have felt as if they were. Where are those harms adjudicated? Because of a quirk of fate and poor politics following the Civil War and not being held to account, have those in the South continued perpetuating many of the same harms they were doing, simply in different guises? When will they be held to account? How would reparations look in the form of a national level of restorative justice?
Not that everyone really wants an apology. One former journalist told me that his ex-colleagues “don’t want to endorse the process of mistake/apology/understanding/forgiveness—they don’t want to forgive.” Instead, he said, they want “to punish and purify.” But the knowledge that whatever you say will never be enough is debilitating. “If you make an apology and you know in advance that your apology will not be accepted—that it is going to be considered a move in a psychological or cultural or political game—then the integrity of your introspection is being mocked and you feel permanently marooned in a world of unforgivingness,” one person told me. “And that is a truly unethical world.”
How can restorative justice work in a broader sense when public apologies aren't more carefully considered by the public-at-large? If the accuser accepts an apology, shouldn't that be enough? Society-at-large can still be leery of the person and watch their behavior, but do we need to continue ostracizing them?
An interesting example to look at is that of Monica Lewinsky who in producing a version of her story 20+ years later is finally able to get her own story and framing out. Surely there will be political adherents who will fault her, but has she finally gotten some sort of justice and reprieve from a society that utterly shunned her for far too long for an indiscretion which happens nearly every day in our society? Compare her with Hester Prynne.
Are we moving into a realm in which everyone is a public figure on a national if not international stage? How do we as a society handle these cases? What are the third and higher order effects besides the potential for authoritarianism which Applebaum mentions?
But dig into the story of anyone who has been a genuine victim of modern mob justice and you will often find not an obvious argument between “woke” and “anti-woke” perspectives but rather incidents that are interpreted, described, or remembered by different people in different ways, even leaving aside whatever political or intellectual issue might be at stake.
Cancel culture and modern mob justice are possible as the result of volumes of more detail and data as well as large doses of context collapse.
In some cases, it's probably justified to help level the playing field for those in power who are practicing hypocrisy, but in others, it's simply a lack of context by broader society who have kneejerk reactions which have the ability to be "remembered" by broader society with search engines.
How might Google allow the right to forget to serve as a means of restorative justice?
After that, she must wear a scarlet A—for adulterer—pinned to her dress for the rest of her life. On the outskirts of Boston, she lives in exile. No one will socialize with her—not even those who have quietly committed similar sins, among them the father of her child, the saintly village preacher.
Given the prevalence of people towards making mistakes and practicing extreme hypocrisy, we really ought to move toward restorative justice. Especially in the smaller non-capital cases.
- right to forget
- search engines
- due process
- restorative justice
- context collapse
- Civil War
- double jeopardy
- Republican party
- cancel culture
- beyond the pale
- institutional power
- university justice
- Monica Lewinsky
- Jul 2015
Maybe that saved me. Maybe it didn’t.
And what about the other side of this? What if a school, like the Lyons Community School in Brooklyn practices Restorative Justice. Does that prepare those youths to deal with cops who treat them with disrespect and violence in the streets? See Act Three. The Talking Cure. of This American Life 538: "Is this Working?" October 17, 2014.
the feeling that your funky little system is cool when we're in school and all, but don't try and take it and apply it to our world. You're in over your head.
Actually listen to the whole thing to see that they also end up, like Coates, with "maybe, yes, maybe, no."