Monday, April 07, 2014

Johnson respects victim’s desire for confidentiality

So here’s a non-story. 

“Johnson did not tell police of assault allegations three years ago.” 

While I have a great deal of respect for the reporters who worked on the story – I think they are professional and ethical – this story was not handled well. By choosing that headline (I understand that the reporters do not write the headlines) and putting this at the top of the website, the newspaper seems to have intentionally implied that Johnson did something wrong – that he knew about something that he was obligated to disclose and did not. 

That implication is flat out false. Before I explain why, let me disclose that Sen. Johnson is a client of mine in the case of Johnson v. OPM. I have nothing to do with this matter.

The facts are as follows. Ron Johnson employed a woman, who claims that she was touched indecently - sexually assaulted - by Rep. Bill Kramer. At the time, she was working in Johnson’s office and shared her experience with Johnson’s chief of staff – who subsequently shared what she had told him with the Senator. 

Having hired a lawyer, the victim decided that she did not want to press charges. She decided that she preferred to have her lawyer send a warning letter to Kramer making clear that she would come forward if he did not reform his behavior. When recent allegations against Kramer – apparently witnessed by a roomful of people – came to light, she made good on that warning. 

Johnson and his office respected this woman’s decision about how to handle the matter. They did not go to the authorities and repeat what she had told them. For those of you who aren’t lawyers, doing so could not result in charges against Kramer. What the victim told Johnson’s staffers was hearsay. It would be inadmissible in court. 

So the implication of the headline is that Johnson and his staff should have betrayed this young woman’s confidence and done what she did not want to do. 

To be sure, some might criticize her for not coming forward earlier, but I wouldn’t and no one who wasn’t there should do so either.  I am sure that she made the best judgment that she could – taking into account what happened, the likely effect of her testimony and concern for other women. 

She is an individual who was entitled to decide how she wanted to handle what happened to her without need to have the men in whom she confided try to correct her judgment and “make” her do what she did not want to do. She had to take into account a number of things that no one else could fully appreciate. Respecting her as an individual means respecting her decision. 

The article  quotes a Madison lawyer(and Democratic donor) named Fred Gants stating that employers “have a duty to  follow up” on such situations. Again, the way in which Gants’ comments were reported implies that Johnson may have some legal litigation to report this as an assault even if the victim did not want to. 

I hope that Mr. Gants did not intend to imply that. 

I spent over ten years as general counsel to an employer and had to understand what our obligations were in situations like this. I would be interested to see how any lawyer might argue that an employer has a legal duty to go to police and allege that an adult has been sexually assaulted outside of that employer’s work place by someone who does not work for the employer – particularly where the employer has no information about the assault other than the testimony of the victim and the victim won’t testify. 

In the comments to a post by Purple Wisconsin blogger Jay Miller who argues that the headline on the story is misleading, someone asked what headline would be more accurate. 

Here’s one. 

“Johnson respects victim’s desire for confidentiality.”

Cross posted at Purple Wisconsin

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