Swindle: Properly handling allegations of misconduct
Published 7:23 pm Tuesday, December 5, 2017
The growing list of well-known men who have been accused of sexual misconduct is becoming staggering. John Conyers, Bill Cosby, Harvey Weinstein, Kevin Spacey, Louis C.K., Charlie Rose, Roy Moore, Jeffrey Tambor, Ben Affleck and Al Franken are just a few who have been recently accused. Also, some of their responses have been disastrous.
For example, Charlie Rose’s apology to “these women who made claims about his behavior”, Jeffrey Tambor’s apology to “anyone” who he ever offended or hurt, and Harvey Weinstein’s apology to “colleagues” to whom he has caused pain were so poorly thought out that just saying nothing would have been better. True apologies are about recognizing the dignity of true victims and their capacity to suffer. The failure to directly acknowledge the individuals that were hurt defeats the purpose.
(Before I go forward, please keep in mind that the following are my general thoughts outside of a courtroom environment. Each case is fact specific. The next step a person accused of misconduct must make is contacting their attorney.)
When the allegations are false or if there is a defense, there is obviously no need to apologize. The accused may actually want to strongly deny the allegations in a consistent and firm manner. However, the denial must be done in a classy way. While engaging the accuser, exposing possible motives and pointing out the timing of the allegation may be appropriate, attacking the person or their family on a deeply personal level is inappropriate and projects the accused as a rude, controlling bully; someone who actually may have done the things he or she is accused of.
Whether a person is famous or not, the need to know how to respond to allegations is critical; particularly as the news breaks. Remember that anyone can be accused of anything at any time. Many allegations, if proven beyond a reasonable doubt in a criminal court, can result in felony convictions and prison time. So, great care must always be taken when considering an apology.
Allegations of criminal/civil wrongdoing
If a person is accused of acts that would be considered a crime, speaking with a lawyer should be the first step. If the accused publicly apologizes to the accuser, he or she has admitted to parts of the crime or its entirety. If criminal charges are on the horizon, prosecutors will have a much easier job. Most lawyers who have experience dealing with these situations will advise the accused to stay silent. The lawyer will often make a statement for the client that does not qualify as an apology. However, if the criminal case is settled without a trial then he or she may want to apologize to the victim if it is acceptable to do so under the circumstances.
In general, the same principles apply in situations where the accused can be sued. I do not handle any civil cases, so I cannot speak much on this aspect. A civil lawyer would need to advise a client who may have civil liability.
Allegations of non-criminal wrongdoing
While uncertainty regarding criminal charges or lawsuits exist in many situations, sometimes it is clear that a crime or civil injury was not committed. A good example would be when a person unintentionally offends someone with a poorly worded email. Here, there is a duty to do the right thing. While it is natural for people to want to blame others, make excuses or avoid responsibility, the right thing to do and most courageous act is to take responsibility for the wrongdoing and make amends. “Standing your ground” or believing that apologizing is a sign of weakness is for cowards. Apologizing is painful, humbling, and takes strength to accomplish.
If the apology is to take place, it needs to be done without making excuses. This includes the details and negative consequences the other person suffered.
Now, we cannot control the other person’s response. They may accept or reject the apology. But, we have “owned” our wrongdoing and done our part.
However, there is rarely a need to apologize for anything another person did. We do not control others’ behavior. What others have done in the past or present is generally not our business. A couple of exceptions to this are apologizing for a member of an organization we are leading and apologizing for something a person did under our supervision.
Maybe there is someone who we need to apologize to today. If so, pray on it and do the right thing.
Jason W. Swindle Sr. is a Senior Partner and Criminal Defense Attorney at Swindle Law Group in Carrollton.