Is this (a) relevant (b) immaterial (c) infuriating? For many observers, the obvious answers were (b) and (c).
“It’s unclear what the letter seeks to prove,” my colleague Molly Roberts wrote of the “SNL” missive. “The number of women a man didn’t assault does not matter if there are others he did. There are plenty of people the Zodiac Killer did not murder.”
On Twitter, New York magazine’s Yashar Ali went even further. “I would not be surprised if this has a chilling effect on women speaking out,” he wrote. “It was shameful when Fox News hosts did this for Roger Ailes and this letter, at this time, is highly inappropriate.”
I disagree. Certainly, the fact that a man didn’t sexually harass all women with whom he came into contact — that would be a tough lift — doesn’t mean that he did not harass any particular woman. The positive experience these women had with Franken does not disprove or diminish Tweeden’s account.
But sexual harassment and even sexual assault are also more nuanced offenses than murder. Sexual intercourse can be rape — or it can be consensual. What is one woman’s harmless flirtation can be another’s unwelcome conduct. Context matters, both to assess the behavior and to determine the appropriate response.
In the case of sexual harassment, how an alleged offender behaves generally in the workplace is especially relevant. A single incident can be so serious that it crosses the line, but as a general matter courts judge whether conduct is so “severe or pervasive” that it creates a hostile working environment.
Consider the opposite hypothetical: If numerous women who worked with Franken said that he hadn’t touched them inappropriately but had treated them disrespectfully or dismissively, I suspect people would take that into account in determining what to make of and how to respond to Franken’s interactions with Tweeden.
Those who assert that women’s positive experience with Franken is immaterial impose a one-way ratchet of relevance, in which other encounters matter only if they serve to confirm bad behavior but must be dismissed if they don’t.
That feels wrong, especially in judging not whether a person behaved badly but what should happen to him as a result. Sure, as I said before, a single incident can be disqualifying. But in most cases it matters, in deciding what punitive action is warranted, whether there have been repeated bad acts or a single, aberrant incident.
Finally, what of Ali’s suggestion that the Franken testimonials are “highly inappropriate” and could have a “chilling effect?” I have a hard time seeing that. To say “that wasn’t my experience” is not equivalent to telling a complainant to shut up or to question her veracity. It is to say: “This isn’t the guy that we know.”
More information is better than less information. Relevant evidence is relevant even if it fails to condemn. And chilling effects can work both ways — to dissuade victims from coming forward but also to warn women against speaking up in support of the accused.