The Media’s Despicable Catch-22 Against Herman Cain

Mr. Cain...meet Capt. Yossarian. He'll expain everything.

I have to rub my eyes, slap my forehead, and keep reminding myself that astounding as it seems, many of the same journalists I hear calling the detail-free and meaningless sexual harassment rumors about Herman Cain “devastating” never considered the sexual harassment issue worth discussing during President Clinton’s Monica Lewinsky crisis, and ignored Juanita Broderick’s credible claims that Clinton sexually assaulted her when he was Arkansas Attorney General. Times have changed, have they? How convenient.

CNN’s Gloria Borger, whose sneering daily coverage of all Republican presidential candidates on has to be seen to be believed, asked the Perry campaign operative Cain has accused of leaking the story to Politico what it would mean for Cain’s candidacy “if the sexual harassment charges are true.” That question is incompetent, dishonest and reckless journalism, because there are no “sexual harassment charges,” and there is no possible way that they can be proven “true.” Borger’s phrasing of her question implies that there is a standing accusation of wrongdoing, and there is not; it also suggests that there is a fair process available to determine truth, when there is not. Thus she exploits the public’s ignorance about sexual harassment (which she quite possibly shares) to impugn Cain without a molecule, atom, or photon of evidence. Nothing.

Now the Washington Post has demanded that the National Restaurant Association, which paid a settlement to one of Cain’s accusers—of exactly what, we do not know— in the 90’s, release the woman from the guaranteed confidentiality she was paid for. And what will that accomplish? Simple: it will screw Herman Cain, which is apparently the news media’s objective. As with Anita Hill’s calculated hit job on Clarence Thomas to derail his confirmation to the Supreme Court, the woman will tearfully describe how Cain’s jokes, or looks, or gestures, or some other conduct that did not involve physical contact made it so uncomfortable to work at the association that she was compelled to file a complaint. Cain will counter that what he did, if he did it at all, was innocent and misconstrued. And those who want to see Cain sink will proclaim that they believe his accuser (although they know nothing about her, and although she will have happily pocketed thousands of dollars in exchange for a promise she will be breaking), while those who support Cain will announce that they believe Herman, and there will be absolutely no way to determine if one or either of them are accurately recounting what happened—if either is even capable of doing so, so long after the relevant events. That doesn’t matter though, because the inevitable result will be to derail Cain’s momentum, create doubts about his integrity and values, and by all means, keep the headlines focused on smoke and mist rather than the real and troubling scandals surrounding the Obama Administration.

Joseph Heller added the term Catch-22 to our lexicon, to describe the paradox of a trap that can only be escaped by making the trap unescapable. It accurately describes the monstrously unfair approach the media has adopted in the Cain affair, in which a factless accusation involving a completely subjective offense can only be defended against by airing embarrassing claims that can never be verified now and which the accuser accepted money rather than attempt to verify them in court . The story, for this reason, never should have been reported, and once reported, should have been quickly dismissed as the dirty trick that it is.

In sexual harassment…Gloria…the offense of creating a hostile work environment is 100% subjective to the victim. That means that if nine women in a room hear a Herman Cain comment and observe a Herman Cain gesture that they find charming, funny, quirky, but entirely innocent and harmless, and one woman, who may be hyper-sensitive, finds it so offensive that it creates—only for her, now—a hostile work environment, she has a colorable claim under the sexual harassment statutes. Unless whatever Herman Cain allegedly did fell squarely under already defined sexual harassment categories, the only way to determine whether what he did or said constitutes the “pervasive” conduct required to create a hostile work environment would be to have a trial. In the trial, it would be determined 1) what happened 2) whether what happened was so pervasive that Cain’s accuser could reasonably feel that it made her work environment hostile. Until and without those dual determinations, it is impossible—impossible—to determine or for anyone to say definitively that the accusation is “true.” This is why Borger’s question was outrageous, and this is why the media attention on this issue is unethical.

Herman Cain cannot have engaged in sexual harassment as a matter of law until a court determines that he did so, and since a court cannot and will not determine that after more than a decade, and since his accusers chose to accept a settlement rather than try to persuade a court to make such a determination, it is unfair to give any attention, significance or credibility to the story.

41 thoughts on “The Media’s Despicable Catch-22 Against Herman Cain

  1. Just a quibble: You say Cain’s accuser “will have happily pocketed thousands of dollars in exchange for a promise she will be breaking.” She won’t be breaking any promises if (as in the hypothetical situation you’re discussing) the folks to whom she promised confidentially have released her from that promise. In the absence of such a promise, there’s nothing unethical about her giving a truthful account of what happened.

    • OK. She accepted money in exchange for a promise to drop the complaint and not communicate about it. Now she is pressuring the party that paid her for that pledge to allow her to have her cake and eat it too. Right—that’s not technically a broken promise. That’s a scam. If she’s not going to meet her end of the deal, she should give the money back—which she won’t do. The Association was right to tell her to go fly a kite.

        • Originally the report was that she wanted the NRA to release her from her agreement because “she wanted to talk.” This created pressure–MSNBC’s Lawrence O’Donnell, disgusting as always, urged Occupy DC to march on the Association to “force them” to let the woman speak. Then, when the association suggested that it would allow her to talk, she said she decided not to. What does this tell you?

          I don’t think you can say that it’s not much of a news story. It’s a journalistic ethics scandal. There was nothing to report, but the media made it into a circus. When the US free media plays “Big Lie” games—and that’s exactly what this was— that’s a story, and that’s a warning.

  2. It’ll screw Herman Cain all right… bow chicka wow-wow…

    This message brought to you by the Immaturity Counsel: We May Be Immature, But You’re A Poopy-Head.

    • I agree, Bob. Given that Politico contacted Cain 10 days before they broke the story, he surely had time to consult a lawyer or lawyers about a consistent, accurate response. It is also being debated, in legal circles, whether Cain has already violated the confidentiality agreement with his remarks about the agreement and commenting on one woman’s job performance, thus releasing her from her obligations to maintain confidentiality: http://jonathanturley.org/2011/11/02/did-cain-trip-the-wire-attorney-suggests-breach-of-confidentiality-agreement/, and http://www.nationalreview.com/corner/282060/legal-implications-breaking-confidentiality-agreement-katrina-trinko. Unless we find out Politico’s source and the parameters of the agreement, there is no way to tell.

      There are so many reasons not to vote for this man: his “no problem” with a shooting war with Iran, his cluelessness about China’s nuclear capability, his already debunked 9-9-9 tax plan, the electric fence, etc. It’s too bad this is what’s making headlines.

      • 1. Cain’s virtues as a candidate are not at issue in the post.
        2. Ten days to respond to WHAT? Outrageously unfair. Without a name and specific facts, there is nothing to respond to. Of all the rationalized and bogus reasons to turn this around on Cain, that’s the weakest.
        3. Go ahead: a website says it’s going to announce that unnamed women made undefined complaints against you that were disputed and settled out to avoid litigation. Your position is that any news outlet that would publish this story should be mocked and jeered off the internet. What is your brilliant response?

        • 1. I was agreeing with you, through a response to Bob’s post, that there was no story there because no one knows the facts, other than a complaint was filed and an agreement reached with the two women. I was agreeing with Bob that Cain handled the situation badly and perpetuated the story. Either he received incompetent advice from those he surrounds himself with, or he responded incompetently to good advice. Either scenario shows a lack of leadership, as you have often pointed out.

          2 and 3. Cain knew this was going to come out. And there are indeed facts: two complaints were filed, and a financial agreement was reached. He should have been ready with a response somewhat like the one you recommended below, even without 10 days notice. You’re right, there is no “good” way to respond, but there is a “proper” way. I agree with Bob that this would be over if he had handled it differently.

          • You and Bob are just plain wrong. Since the story has continued in the absence of facts for 5 days….an all time low for journalistic ethics, I believe…nothing Cain could have said would have made any difference at all. The fact that someone has made an allegation and that there was a settlement are not facts that indicate any wrongdoing. By your definition, there is a “fact” supporting a classic “Big Lie” accusation—say, “Hillary Clinton secretly supported a Satanic cult during the Sixties”—the “fact being somebody said Hillary Clinton was a Cult member. That’s not a fact, within the meaning of the phrase, “there are no facts to back this allegation.”

            • Disagreeing with you does not make us wrong. It just means we see things differently and disagree. Your analogy to Hillary Clinton is not applicable, as there are actual records showing that Herman Cain was accused of sexual harassment and that a monetary agreement was reached. The accusation that Hillary Clinton belonged to a satanic cult would not likely be a matter of record, and therefore not fact.

              Just to be clear, I think the media has been totally irresponsible and unethical in their coverage. Herman Cain brought this upon himself, but the focus should be on his policies and his reaction to the accusations, not the substance of the accusations themselves, which is a matter of speculation. You are correct in calling out the media, because they are, typically, going for the sensational headline.

              • Wait—how did “Herman Cain bring this upon himself”? Bring WHAT upon himself? How did he bring an unsourced, anonymous accusation upon himself, when all journalistic ethics principles would dictate that it was unethical to publish the story? That’s an irresponsible comment, Jan.

                My Hillary Clinton hypothetical is exactly on point—in it, someone “said” that Hillary was guilty of something. All an accusation of sexual harassment means is that someone says 1) something occurred and 2) that it constituted a hostile work environment. That doesn’t make it true because it was said, any more than the rumor about Hillary is true because it was said. The fact that there was a cash settlement means nothing—NOTHING—more than the Association didn’t want to bother litigating it. It doesn’t mean the accusation was true, and it is dead wrong and blatantly unfair to treat it as such.

                Read my follow-up on this story today. Answer the questions. I know unethical journalism when I see it, I know the vagueries of sexual harassment well, as I work in the area, and I know when people are leaning over backwards to blame a victim. And that’s exactly what you, and Bob, are doing.

                • I have already said that the media’s response has been unethical. I would answer, as you have, “no,” to all five questions. I have no opinion as to whether Cain actually committed sexual harassment. The problem has been Cain’s reaction to an unethical situation–which has been to lie and prevaricate. All with plenty of preparation time. Either he has an incompetent staff, or he willingly ignores sound advice. Surely there is a standard for an ethical response to an unethical situation. Cain failed.

    • Utter baloney, Bob—I’m sorry, that’s just unfair and wrong. There is no allegation and no accuser on the record. You can’t rebut rumors. Focusing criticism on Cain’s problems countering a near perfect Big Lie campaign—or Big Rumor That Can Never Be Completely Disproved Because of a Legal Settlement—just ensures more dirty journalism. You should be squarely on Cain’s side on this.

  3. I’d like to poll about 100 men to see how many have had an actual sexual harrassment charge filed against them. How many have had two or more such allegations filed against them? Only a very small percentage of men have had an actual sexual harrassment complaint filed against them. Furthermore, in the NRA harrassment cases involving Cain, the situation imvolves young women making allegations against the head of an organization. Pretty intimidating situation for these young women to find themselves in. Lest we forget, these young women were not “asking for it”. and I can only imagine if my own daughter had been subjected to such humiliation.

    • WHAT humiliation? You don’t even know what the allegation was! Sexual harassment law is used as a sword as well as a shield—it is an especially useful weapon for employees who feel they may be about to be fired.

  4. If there were just one woman, I would say it was a crank. Two, there may be smoke. With a third woman, I see a few sparks. My sources suggest that there may just be other women coming forward. BUT – why would any woman in her right mind come out and say she was the person who filed the complaint. If a woman files a complaint against the Dems, she is destroyed by them, and the GOP stands up for her. If she files a complaint against a Republican, the Dems stand up for her, and the far right talking heads go into hyperdrive to destroy her.

    I don’t give a rip about Herman Cain. I am disgusted over the way these women are being portrayed. They are being called, sluts, prostitutes, bimbos, liars, whores and these are the printable epitaphs. What about innocent until proven guilty – for them? We all know the sexual harassment laws are insane. But – they are there for a reason. Laura Ingraham has spent several days demonizing women who file such complaints.

    Then there are the questionable practices by Cain’s campaign, the shell game with his books, Mark Block, and his chargebacks to deep pockets. When you add the fact that Cain is conducting a campaign that does not play by the rules – well, maybe he doesn’t. The women with whom I’ve discussed the situation are sickened over it. They are disgusted with the GOP for not demanding answers, and disgusted with Cain.

    Everyone is discussing the fact that the women don’t have the courage to come forward – but if confidentiality agreements are in effect, how can they? If the women signed the agreements, and Cain signed them, which I hear he did, then he’s broken the agreement.

    The whole thing gives me the creeps.

    SJR
    The Pink Flamingo

    • 1. You “hear he did”? You know what that’s called, don’t you?
      2. Cain typically wouldn’t sign them, because the complaint was against the association, not Cain personally.
      3. There’s no verified “third woman.”
      4. The women should not come forward; the association should not waive the agreement, and Cain should admit nothing. An anonymous, settled complaint about disputed sexual harassment conduct that cannot be described is not a legitimate story, and it is unforgivable that anyone—anyone—is treating it as one.
      5. No one should be bashing the women, or Cain. Bashing the women is Bill Clinton’s approach—but then he WAS almost certainly guilty of harassment.

  5. “That doesn’t matter though, because the inevitable result will be to derail Cain’s momentum, create doubts about his integrity and values, and by all means, keep the headlines focused on smoke and mist rather than the real and troubling scandals surrounding the Obama Administration.”

    Which is why Cain is accusing a Rick Perry operative?

    It is, as Ethics Bob points out, Herman Cain who has made this a story with “legs.” What Mr. Cain did or didn’t do years ago may not ever be known. What he’s doing now, lying about facts that are indeed demonstrable, reveals more than a little about his character, or lack of it. Thinking he can get away with it is, well, Clintonian.

    That this or that media shill acted unethically may be true, but those folks aren’t running for President. Herman Cain is, and he has shown that he is more than willing to sacrifice truth on the altar of expediency. That may be politics as usual, but it isn’t leadership and it isn’t ethical; any ensuing damage to his image is almost entirely self-inflicted. I don’t know whether he’s a sexual harasser. I do know that he’s an arrogant and dishonest jackass.

    Of course, that doesn’t distinguish him much from the other competitors. More’s the pity.

    • Even if we give Can the benefit of the doubt and assume there’s nothing to this story, I am worried by his response. He doesn’t seem to perform well under pressure.

      • I think that’s just wrong. What is the correct way to react to an unethical journalistic smear? If he did what I would say is the correct response: “I will not comment on anonymous and fact-less allegations: it is impossible, and unfair. When I am asked about a specific incident and there is a identified accuser, I will respond as fully and completely as my memory of the matter will permit.,” everyone would say he was ducking the issue. There is no good way to handle a story like this. It is like fighting a ghost.

    • I don’t get the logic, Rick. Because of a story that never should have been released, Cain is in the position of shadow boxing with nothing. So you think the media can pose a crisis using unethical journalism, and yet the victimized individual’s response to it is a fair test of anything? I don’t. It’s not a crisis, it’s a trap, as I wrote. This is a variation on The Big Lie, isn’t it? Put it out there—if he denies it, it gains credibility and diminishes him. If he doesn’t deny it, people believe the lie. I assume that fair individuals side with the victims of this tactic, regardless of their political affiliation.

      As for accusing Rick Perry’s staff of the leak–based on the fact that one of Perry’s operatives was aware of the complaints from an earlier stint with Cain—I think that was unfair of Cain, who shouldn’t have speculated. His suggestion that the attack was racially motivated was also wrong. No doubt about it, the unethical tactic worked, and the unethical journalism has benefited the practitioners. And if the response is going to be—yeah, but see? It made Cain make mistakes, then we’ll see more of the same, won’t we?

      The responsible ethical response is to focus the criticism on the perpetrator, not criticize the victim for not perfectly handling an unscrupulous attack.

  6. Jack, I’m going to have to disagree with your statement:
    “Herman Cain cannot have engaged in sexual harassment as a matter of law until a court determines that he did so”
    If I hit you without your permission, I have engaged in battery. The Court may ultimately agree or disagree (e.g. jury doesn’t believe your account), or may never rule (e.g., the charge is brought after the statute of limitations runs). That doesn’t negate the fact that the battery occurred.
    Herman Cain may have engaged in sexual harassment. No Court ruling is necessary. Whatever he did was or wasn’t sexual harassment; we just don’t know which it was.

    • That’s not true with sexual harassment, Jay, unless it is a clear case squarely in the law. In battery, the offense exists based on the conduct only, absent consent; in harassment, the offense is based on the object’s reaction to the conduct—that’s what makes it such a screwy law. Since an offense of hostile work environment harassment requires subjective unwelcome conduct that is “pervasive” and a perception of hostility that is reasonable, there is no objective standard. If two courts could (and have) ruled differently, whatever he did cannot be called sexual harassment until it is proven that it is. The same conduct may be, or may not be, but without a trial, the default conclusion must be not.

  7. Another quibble. You mention (unnamed) media figures now attacking Cain who said nothing about Sexual Harrassment back during the Bill-Monica foofaraw. My quibble: sexual harrassment is when the actions or words are unwanted, unwelcome, not consensual. Was that the case in the Bill-Monica thing (harrassment)? Or were they both just having fun (canoodling)?

    I don’t know, and suspect nobody else does for sure. So are you being fair to those (unnamed) journalists?

    As to what Bill did before he got to 1600 Pennsylvania, that’s an entirely different issue.

    • Nope—the issue with sexual harassment in the Lewinsky case was inequality of power—it is harassment any time a boss, with firing power—and especially with a President’s power—solicits a sexual relationship from a subordinate. There is an implied threat, and thus there can be no free consent. All Lewinsky would have to do in the private sector equivalent is file a complaint, and she wins—it’s a quid pro quo situation, and pure harassment. The hostile work environment situation, however, was created for every other female intern, to whom the message was being went that they had to submit to the call to be a sex toy for the boys in power. Also a slam dunk, if anyone complained.

  8. Two points: First, you have more than one Bob commenting here. I’m “Ethics Bob,” not the Bob who wrote “I’d like to poll about 100 men.. .”

    Second, here’s what Herman Cain should have said–or at least what I would have said had I been in his position:
    “Twelve (or whatever number) years ago when I headed the Nat’l Restaurant Ass’n, two women claimed I had sexually harassed them. It wasn’t true, I never did such a thing, and the NRA made a settlement with the women, I assume to avoid more costly litigation. I have always treated people I worked with with respect, and I have never harassed anyone. Now let’s talk about jobs.”

    • Bob the First: How different is that from what he really did say? Is your problem that he didn’t instantly say that it was two, or that he was vague about the settlement amount? How would your statement, which is about as good as I could come up with, “end the story in one day” when pundits like David Gergen are going to go on the air and call them “very serious accusations” with no facts at all, and shameless attack dogs like Lawrence O’Donnell are going to “demand” that the NRA “end the cover-up’?

      • He started with denials, then don’t remembers, then don’t knows, etc. My statement wouldn’t have quieted O’Donnell and his kind, but it would have gotten the acceptance of the great middle–which Cain lost by his prevarications and daily changes.

        • We’ll see, Bob. I tend not to blame people for not handling outrageously unfair and dishonest attacks perfectly. Cain has given me plenty of other reasons to doubt his competence, prudence and instincts, but he was still the victim here, and I’m waiting for the media and critics to admit it.

  9. I’ll give you MAYBE he was the victim, maybe not. But as a serious Presidential candidate (okay, maybe he’s not) he should know to be forthright and open. Washington’s first law is the cover-up is worse than the crime. That’s what done him in.

    • I’ve reviewed the sequence of statements, Bob. I think that’s a barely defensible characterization of what he did, but unduly harsh. He began by saying that he never harassed anyone, which could well be true; even if it isn’t true, he could well believe it. Then he said a small settlement was paid to one accuser, and he didn’t know how much. Then he gave more details. You’re assuming that he knew more than he was saying when he said it. The lawyer for the accuser told one reporter that he didn’t recall the case or even his client’s name, and had to go back in the files. Cain can be criticized for not taking the issue seriously enough when he was first alerted about the story, but saying he lied is a leap.

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