While National Crime Victimization Survey statistics disclose an approximate per capita consistency of sexual assaults from 2015 to 2017 (i.e., 1.6; 1.1; 1.4 per 1,000, respectively), and EEOC statistics from 1997 through 2011 on sexual harassment disclose an uptick in no reasonable cause findings from 41.40% to 53% arising from sexual harassment charges filed over this period (with EEOC charges received declining from 15,889 in fiscal year ’97 to 11,364 in ’11), the likelihood of underreporting sexual misconduct, including sexual harassment in the workplace, imprecisely and noticeably persists at the grassroots level monitored by organizations such as ‘me too.’ Like much public data, drilling down into individual cases seems both impractical and undesirable, yet a distinction should be made between absence of a formal record and absence of an underlying act of sexual misconduct.
A detailed itemization of reasons not to report publicly need not be exhaustively recited (e.g., personal relationship with the offender, fear of retaliation, lack of belief in the helpfulness of the criminal justice system). In fact, BJS statistics for years 2015 and 2016 suggest that almost one-half of serious violent victimizations, including sexual assault, are not reported to the police. Unfortunately, obstacles to reportingmay not be limited to the U.S.
Perhaps, the ‘me too’ movement has amplified otherwise silent voices in seeming opposition to the perception that some voices count more than others. Moving beyond the formal criminal justice system, including police, public prosecutors, and judges, the ‘me too’ voice is louder in concert with other voices not contingent upon support from this system of justice but amplified through informal mutuality of victimhood. However, while ‘me too’ serves to organize informally victims of reported and unreported sexual misconduct and gives them a social media platform, it does not mitigate information risk (i.e., assurance of integrity of the claim). Additionally, all categories of sexual-related wrongdoing are not equivalent: crimes are heterogeneous in their fact patterns and seriousness. A set of rules and effective process are necessary to analyze the relevant conduct apart from overbroad legal offense jargon that may serve to aggregate disparate data misleadingly and impair the development of theoretical and conceptual research about causation.
The reports of victims are varied. Ultimate causes need to be identified and parsed out or inferred from proximate causes. For example, while unchecked executive discretion may cause one incident, another may be the immediate result of situational dynamics such as individuals working long together in invisible venues (e.g., business travel). While non-consensual sexual conduct is wrongful, superficially consensual conduct in fact (i.e., circumstances of assent) may be deemed non-consensual in law (e.g., sexual conduct against a minor). In particular, inequality in the relationship (e.g., instructor over student) may be an under examined factor of causation, and in general the data gathered from criminal justice sources may not adequately represent the problems.
The original vision of ‘me too’ seems to be neglected: are there disparities in wealth, income, and class such that this broad power imbalance results in unequal protection under the law? Are the laws adequate both in scope of protection and range of enforcement? Are there proxies or instrumental variables from which to infer the frequency and severity of sexual misconduct in the workplace? Are there key variables such as social, economic, and political inequalities that influence reporting within the criminal justice system? Is mitigation of the risk of sexual misconduct more a managerial than a legal problem; if so, how would the public and policymakers become adequately informed about potentially proprietary data in the private sector; how are the managers to be governed without robust access to information by impartial and independent regulators and supervisors? The data accumulated and analyzed to date seem materially incomplete from which to draw clear solutions and changes to public policy.
I propose the following action items for academia, the most respected fact-finders in our society, investigating like a multidisciplinary task force:
Secondary research should be conducted, using systematic and other reviews of authoritative literature, to assess the limits, strengths, and deficiencies in existing policies and laws, both domestically and internationally. The problem(s) demands a clearer and more general formulation. As data sources vary by jurisdiction (e.g., the American states’ reports) and the problem of sexual misconduct seems to transcend not only American state boundaries but countries’ boundaries, there would likely be an abundance of literature demanding further analysis and reconciliation. Common factors needs to be parsed out of the disparate literature to develop a more transparent assessment of causality. Moreover, experts across jurisdictions, including institutions focused on sexual misconduct such as ‘me too,’ could provide insight beyond the statistics generated through official sources. Consideration may be given to identifying underexplored units of analysis such as the workplace, especially within the context of how policy and law are actually implemented and their effects on the accuracy, completeness, and timeliness of reporting on sexual misconduct. Essentially, secondary research should not only integrate prior authoritative findings but interrogate these as well: substantial issues such as data deficiencies and policy limitations to remedy such deficiencies require identification and analysis across jurisdictions, determining what works (or not).
Theoretical and conceptual research should be conducted, using case studies and other explorations of sexual misconduct inside and outside the workplace to postulate common factors heretofore covert or under-researched (e.g., effects of unchecked managerial discretion, effects of monopolization of the criminal investigative and prosecutorial processes, inconsistency and unreliability of accountability mechanisms such as internal watchdogs / auditors). The development of comparative case studies across jurisdictions, domestic and international, would likely provide a fertile source of information about sexual misconduct, including how it progresses, how it evades detection, how accountability is impaired, and so on. Comparative case studies may be especially important with crimes such as sexual misconduct where personal and professional boundaries are stretched, if not perverted. Broadly, sexual misconduct often implicates an overbearing aggressor and under protected victim. How accountability mechanisms did not succeed in the prevention or timely detection of many of these cases is an issue that demands in-depth interviews of a highly intimate nature that may fill out the bare statistics and data gathered to date. Essentially, theoretical and conceptual discussion should move beyond past statements: grassroots responses such as ‘me too’ may signify both policy and data failures. Problem solving may benefit from such analytical and creative restatement.
About the author:
David M. Shapiro, CPA
Fraud Risk and Financial Crimes Specialist
David M. Shapiro, CPA (inactive) is a Fraud Risk and Financial Crimes Specialist. He is also an expert generally on financial investigations and law enforcement. His extensive background includes work as an FBI (public sector) special agent / assistant legal advisor, assistant (public) prosecutor, and corporate (private sector) investigator. In brief, David has focused on conduct and financial crime risks.
David serves as a Distinguished Lecturer and Coordinator of the Fraud Examination and Financial Forensics program at New York’s John Jay College of Criminal Justice, instructing in the fields of inspection and oversight, fraud examination, and financial forensics (FEFF). He is the coordinator for the FEFF program. He has published articles in the areas of accounting, finance, and risk management. He recently wrote a special chapter for the book “How They Got Away With It: White Collar Criminals and the Financial Meltdown.”
David was an expert management consultant, having completed assignments in the fields of risk management, fraud investigations, and investor due diligence in a variety of contexts, including mergers and acquisitions. To contact David please use his professional email address: email@example.com or work telephone no.: (212)393-6882.