The Kavanaugh Compliance Lessons

Now that Brett Kavanaugh’s nomination to the Supreme Court has turned into a #MeToo meltdown, ethics and compliance officers should roll up their sleeves. Peel away the political dimension to this mess, and plenty of lessons emerge about investigations, whistleblower reports, and corporate values that are worth contemplating.

We have several threads to pull: how the investigation has been handled; whether someone accused of long-ago misconduct might be forgiven anyway; and how the ethical stance of those investigating the allegations — in this case, the Senate — can influence specific cases.

Kavanaugh, 53, seemed on his way to a favorable vote from the Senate Judiciary Committee later this week. Then came news that Dianne Feinstein, ranking Democrat on the Judiciary Committee, received a letter on July 30 from a woman claiming Kavanaugh tried to rape her when they were both high schoolers in the mid-1980s.

Feinstein forwarded the letter to the FBI for investigation. News of the allegations against Kavanaugh reached the media last Friday. By Sunday, as the woman’s identity was about to leak anyway, she declared herself and told her story to the Washington Post.

Kavanaugh’s accuser is Christine Blasey Ford, a clinical psychology professor at Palo Alto University. Ford is a registered Democrat. Through her attorneys, Ford says she is willing to testify publicly.

On Monday morning, Kavanaugh issued a statement saying “I do not know this woman” and that Ford’s allegations are false. The Senate Judiciary Committee wants to hear from both Kavanaugh and Ford before voting on his nomination. Another public hearing is expected next week..

Issue 1: Investigation Protocols

First, this case offers reminders about how investigations should work and what evidence you need to assess credibility, especially in cases of personal misconduct that might have happened long ago.

Certainly Kavanaugh can defend himself and deny the allegations. He might honestly have no recollection of meeting or assaulting Ford. And in this early stage, you have to allow that perhaps Kavanaugh did nothing. Accusers sometimes lie.

An important point, however, is that in the murky world of sexual misconduct, Kavanaugh and Ford can both be right. That is, Kavanaugh might genuinely have no recollection of something he did, while the assault was also a defining moment in Ford’s life. Men are often too stupid to grasp how profound and long-lasting an act of harassment can be to the victim.

Example: A woman I know was at the beach when she was 11, when two older boys strolled by and pinched her backside. More than 20 years later, she can still vividly remember details like the bathing suit she wore and the weather that day. Do you think those boys — who by now might be upstanding, exemplary men — even remember doing this?

In the murky world of sexual misconduct, Kavanaugh and Ford can both be right. Kavanaugh might genuinely have no recollection of something he did, while the assault was also a defining moment in Ford’s life.

That’s a powerful dynamic in allegations of personal misconduct from long ago. It’s why a thorough investigation is so important. The investigating authority must give the benefit of the doubt to both accused and accuser.

It also underlines the importance of corroborating evidence: witnesses, other accusers, documentation.

Christine Blasey Ford

Ford has ammunition here. She mentioned sexual assault to a therapist circa 2002. She told a therapist again in 2012, in front of her husband, that time specifically naming Kavanaugh. How likely is it that Ford hatched some false accusation years ago in case Kavanaugh might someday be nominated to the Supreme Court? Come on.

Ford also says another boy was in the room that night: Mark Judge, a right-wing author and friend of Kavanaugh’s. Judge wrote a memoir, Wasted: Tales of a Gen X Drunk, where he recounts his misadventures as a drunken teen — running around with a friend named “Bart O’Kavanaugh.” That book was published in 1997.

So the Senate Judiciary Committee might well end up with two compelling witnesses, both convinced that they are right. One of them has at least some supporting evidence.

Issue 2: Evaluating Redemption

Let’s assume that Ford’s account of sexual assault is true. The next question is whether the allegations alone disqualify Kavanaugh from the court today — and it’s valid to consider that perhaps they don’t.

How much time should pass before we can forgive past misconduct as ancient history, no longer reflective of the accused’s current behavior?

This is another difficult dimension to #MeToo investigations that we don’t discuss often enough: how much time should pass before we can forgive past misconduct as ancient history, no longer reflective of the accused’s current behavior?

These allegations happened long ago. Kavanaugh apparently has a spotless record since then. When weighing a case like this, you do have to consider a person’s evolving maturity, values, and self-awareness across the years, especially if the misconduct happened before the accused’s brain had even finished developing. You have to think about redemption.

How does a board weigh that question? There’s no easy answer, but a few basic principles emerge.

First, as much as possible a board should have expectations and a process spelled out in advance. Never do you want to invent a process on the fly to adjudicate a difficult question of misconduct and accountability.

Second, to forgive someone for personal misconduct, you want to see change in that person; you want to take the measure of him or her and see a difference. And to get an accurate measure of that change, you need to know that the person’s contrition is sincere.

Sincerity manifests as humility and empathy; as actions taken and restitution made without any expectation of reward. I don’t quite know how to quantify things like that, but time alone isn’t grounds to forgive long ago misconduct. Time only gives you the chance to show you’ve changed and regret the consequences of your actions.

Maybe Kavanaugh is falsely accused, although I’m skeptical. And if he did assault Ford, his scorched-earth response suggests he has learned nothing or redeemed himself at all.

Issue 3: Ethics of the Organization

We also need to consider the ethical principles of the senators themselves. They don’t have many. And that taint of poor ethics at the organizational level pollutes this effort to weigh the allegations against Kavanaugh and decide whether they disqualify him from the court.

Republicans will say Democrats sandbagged Kavanaugh. They say Democrats knew about Ford’s allegations for weeks, and rather than ask Kavanaugh about them directly during his hearing, they painted a picture of him as evasive and slippery. Then they sprang the trap of Ford’s letter at the 11th hour, to catch him and Republicans unprepared.

If you don’t have leaders who reflect the ethical principles you want, actions they take today can undermine future actions they take tomorrow.

Democrats, meanwhile, will say Kavanaugh has known about Ford’s allegations because they are true, and he is trying to cover them up. Now, they say, Republicans will rally around Kavanaugh at any expense, simply to seize ideological control of the Supreme Court — which is all the more shameless because Republicans denied a fair hearing to Merrick Garland in 2016.

Neither political party looks pretty in this picture, but Republicans are worse off because they plumbed new depths of partisanship with Garland’s nomination-that-wasn’t. They surrendered the moral high ground. Once you do that, your claim that you have the authority to forgive past transgressions goes out the window.

That’s a point corporate compliance officers should remember: If you don’t have leaders who reflect the ethical principles you want, that invalidates their ability to consider difficult questions of personal misconduct with any legitimacy. (Consider the board of Wynn Resorts for a corporate world example.) Their decision just becomes an exercise in raw power. 

That’s what is happening here. That’s one reason why Kavanaugh’s nomination hangs by a thread. I suspect the weight of his conduct, past and present, will be too much for that thread to bear.

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