As the outing of sexual harassers continues to bring down powerful and formerly admired men (it is almost always men), the question whether we give them second acts is bound to grow. It’s not a simple question.
A man does not lose his talent merely because a penchant for abusive behavior (or for looking the other way while someone else behaves abusively) has led to his downfall. He wakes up the day after his involuntary retirement just as able to do his job as he was the previous day. Whether or not he has expressed contrition, there will be a large number of people who want nothing more to do with him and who feel his reemergence into a position of respect would be an affront. But he still has his skill set and he would like another chance.
I am not addressing here whether the abuser morally deserves that second chance. I admit to being skeptical there are many crimes, including those of violence, that merit permanent banishment from participation in our society. So I assume, if only for argument’s sake, that second chances are acceptable. And practically speaking, some are inevitable.
That said, there may be legal impediments. If the perpetrator worked in a regulated profession, he may well be confounded by a requirement that he exhibit “good moral character.” Especially if his misconduct has resulted in convictions, readiness to meet the standard will probably elude him for a number of years. And certain kinds of jobs, for instance those involving a security clearance, probably will be out of reach even without convictions.
That still leaves a lot of jobs and ways of commanding respect that may remain open to such a man. The gatekeepers of those jobs and ways, and the consumers of the man’s work, will then have to choose how to respond.
Case in point: the recent forays into public discourse by former federal appeals judge Alex Kozinski. As reported by The Washington Post, Kozinski, who resigned abruptly from the 9th U.S. Circuit Court of Appeals after accusations of various forms of sexual inappropriateness with employees, journalists, and colleagues surfaced, sat earlier this summer for an hour-long radio interview and published a tribute to retiring Justice Anthony Kennedy in the Los Angeles Daily Journal, dismaying Kozinski’s accusers.
The Daily Journal’s editor responded to the dismay by saying the readers “understand that Kozinski is a complicated figure, a man who could be crude, grotesque and hurtful and also a towering intellect who contributed much to the law and to the legal community.”
And there you have the dilemma. In real life, some of the most insightful judges, most entertaining entertainers, most canny dealmakers, most effective politicians have also, in the editor’s words, been “crude, grotesque, and hurtful.” If we categorically shun them and all their works, we as a society are also cutting ourselves off from whatever they have to offer.
I think most of us have wrestled with this. We certainly want to stand with victims of harassment and end the long aversion of the eyes and disbelief that has greeted them. But we also understand less-than-admirable people often do admirable work of which we may want to avail ourselves. There has to be a compromise between these compelling but competing principles.
My suggested first principle would be that we always have to protect the potential future victims. An abuser should not be put in a position to abuse again. And we can be pardoned for not trusting him. It is striking how little insight appears in most public apologies. Striking but not shocking; true compulsions excepted, the sorts of things the abuser has done generally could not have happened had there been much insight or empathy in the first place.
People don’t normally change much, either. So, while we should insist on therapy, we shouldn’t count on the abuser ever to change inside – and, for purposes of whatever second chance may be contemplated, we should not withhold that chance waiting around for a convincing show of change. Instead, we should just view the abuser as someone we cannot trust not to misbehave, but whom we may be able to use anyway in ways that afford his misbehavior little scope. And such use would be strictly for our benefit, not his.
Safety demands whether we are acting as employers, gatekeepers of public opinion (like the editor who published Kozinski’s piece) or as consumers of culture, we should not facilitate putting any proven abuser in a position where he gets to order around subordinates, have a say in anyone’s future, or assault people. But, even after we observe that rule, we may still be able to and want to avail ourselves of the abuser’s work.
Reaching a compromise
This compromise may be easier to endorse in principle than to put into practice. But it isn’t always going to be hopelessly hard to apply. Take a standup comedian who has engaged in abusive exhibitionism offstage (you may have heard of such a person). As audience members, we may not want to see the man perform again, but then again we may. And if we do, all we are doing when we go to see him is facilitating a solo performance.
As an employer – that is, as the owner of the venue where the comedian might perform – one would have a graver responsibility to assure the well-being of women around the performer, including backstage. And as a gatekeeper, particularly one who might be influenced by the comedian’s badmouthing of colleagues who may have reacted negatively to his misbehavior, one would have a responsibility to be vigilant to detect and discount it when it happened.
In like fashion, a professor who had abused his power to grade students might be restricted to research and publication only. An executive who had assaulted his subordinates might be allowed to telecommute. And a retired judge who like Kozinski had been credibly accused of gross behavior toward women might be allowed to continue pontificating in print without access to law clerks or litigants.
Unless we are prepared to deny all abusers a second act – and I doubt that we as a society are prepared to do anything so categorical – we are going to have to think about what second acts may look like.
Jack L.B. Gohn is partner emeritus with Gohn Hankey & Berlage LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com.