What Kind Of Due Process Are Those Accused Of Sexual Misconduct Entitled To?

As the #MeToo movement unfolds, questions are being raised about what due process those accused of sexual misconduct are entitled to. NPR's Michel Martin explores the topic with constitutional law professor Elizabeth Price Foley.

MICHEL MARTIN, HOST:

Last week, PBS announced that it was suspending Tavis Smiley's late night talk show indefinitely after multiple allegations of sexual misconduct were made against the 53-year-old host. Smiley fired back. In an interview with Fox News, he said he was never told about allegations or an investigation and that PBS only agreed to meet with him about all of this when he threatened a lawsuit.

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TAVIS SMILEY: And in that three-hour conversation, I was never told what the accusations were, who the accusers were. I was never allowed to provide any data or evidence to debunk anything that perhaps I could have debunked about - didn't know what we were talking about anyway. But they frankly didn't give me due process. And on top of that...

MARTIN: We're starting to hear a lot of that phrase - due process - as the #MeToo movement unfolds. PBS says they handled their investigation privately to protect those who came forward with allegations. And all of this made us wonder, what kind of process are those accused of sexual misconduct entitled to? What's fair for everyone involved? For some answers, we called Elizabeth Price Foley. She's a professor of law at Florida International University, and she's written about due process. Professor Foley, welcome. Thanks for joining us.

ELIZABETH PRICE FOLEY: Well, thanks so much for having me.

MARTIN: Well, let's start by defining what precisely we mean when we say due process. Now, you wrote that as a legal matter, whether the matter is a civil matter between two private parties or a criminal matter, there are three ingredients. What are those ingredients?

FOLEY: Yeah. I mean, there's sort of the three pillars - right? - of due process at minimum. One is having some sort of notice of the charges that are being levied against you. The second one is having an opportunity to rebut those charges. And then the third one is having some sort of neutral decision maker to hear the charges and make whatever ruling is appropriate.

MARTIN: So let's say Tavis Smiley is accurately representing the sequence of events at PBS. In a legal sense, let's say, he didn't get due process. But is he entitled to it?

FOLEY: Yeah. That's the fundamental question I think a lot of people skip over. When he works for a private organization, it's a corporate entity. It's not a government actor. He's not entitled to constitutional due process because those due process protections that we all enjoy are in the Constitution. And the Constitution gives us rights that we enjoy against government action but not private action. It might come from some sort of contractual understanding you have with your employer or maybe even a statute, but it's not going to be constitutional at all.

MARTIN: So before we let you go, I mean, obviously people use due process both in a strictly legal sense, but they also use it in a sense of what they think is fair, right?

FOLEY: Yeah, yeah.

MARTIN: And at the end of the day, it's about being fair to both parties and seeming to be fair. So apart from the court system where the rules are spelled out clearly, you know, what does that look like in a private workplace? I mean, is there a way to get to a middle ground where both parties, all parties will walk away feeling like it's fair?

FOLEY: I certainly hope so, right? I think you're right that in the colloquial sense, we all have a gut sense of what is fair process. And I think it does include those sort of three pillars that I talked about. I think we would all agree as citizens that we would want anyone who is accused of this kind of impropriety to get notice of the charges against them, an opportunity to rebut those charges and some sort of at least quasi-neutral decision making process.

I mean, think of the personal damage that can be done just hurling certain accusations at someone. But I think that means it's incumbent upon all of us to either put pressure on our employers to give us those processes or, alternatively, even to lobby to make sure we enact statutes that give us those kinds of procedural protections.

MARTIN: That's Elizabeth Price Foley. She's a professor of law at Florida International University. Professor Foley, thanks so much for speaking with us.

FOLEY: Thank you very much for having me.

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