An Apology After the Hearing

The evening after the Honorable Brett Kavanagh testified before the Senate Judiciary Committee, he apologized to Senator Klobuchar regarding his response to her: “She asked me a question at the end, and I responded by asking her a question and I’m sorry I did that.”

This article has an interesting perspective on that apology. The author notes how an apology can short-change the opportunity to deal fully with an offense and all its effects. She asserts that studies show that people appreciate apologies even when they are incomplete or insincere. I’ve seen other studies establishing that a bad (incomplete, insincere, self-serving, etc.) apology is actually worse than saying nothing. (See, e.g., Jennifer Robbenolt, “Apologies and Legal Settlement: An Empirical Examination.” 102 Michigan Law Review 460, 497 (2003))

But it’s also true that people of goodwill often appreciate the offender’s efforts at an apology, even if its content is less than satisfying.

Could Brett Kavanaugh Apologize His Way Out of This?

Judge Brett Kavanaugh testified yesterday that he did not assault anyone, but he also admitted that he drank too much in his younger days. He insists that he never drank so much that he blacked out, but apparently his college friends tell a different story. So, what if Judge Kavanaugh acknowledged a memory lapse and admitted to the possibility that events happened as his female accusers have said? Instead of sounding like an alcoholic-in-denial, he would create rapport with many Americans who regret adolescent behavior, and just might persuade doubters that he’s no longer who he was then.

Here’s what he might say:

[Acknowledgment of offense] Like everyone else, I was stunned by the allegations from Dr. Ford. The behavior she described is so abhorrent that I instinctively denied ever doing anything even close. I honestly do not remember ever doing anything like this. As I have continued to reflect on this, I have to admit that I don’t remember everything I did while I was in high school and early college. As I testified, I drank too much. I did that too often. Although I don’t think I ever blacked out from drinking, and I don’t recall my friends telling me things I’d done while drinking that I did not remember myself, that may have happened. No one ever told me that I attempted to assault someone, so I still have trouble believing I am the one who did this; but I admit that there is a remote possibility that this could have happened.

[Responsibility] If I was actually the one who assaulted Dr. Ford, then I must apologize to her. I will do that privately, but I also owe the public an apology, since it’s a horrible act that I initially denied. The idea that I could behave this way is contrary to who I am, so it’s revolting to think I’m capable of this—but I know, as a man, and as the sinner God knows me to be, that I am capable of such vile behavior. It’s easy to blame the alcohol, but I’m the one who kept choosing to drink; I am responsible.

[Remorse] I am disgusted by the thought that I did this to another human being. I will regret it as long as I live. It’s especially painful to hear that Dr. Ford has suffered the effects of this incident for years, while I have been free of it. Now the tables are turned; I hope my apology will bring some measure of healing for her, whereas I will now carry the shame of this incident for the rest of my life. I wish I had made amends long ago for the sins of my youth, but I believe it’s never too late. I deeply regret the offenses I committed while in high school and college, and ask your forgiveness. It will not happen again.

[Repair] There are some who say I should withdraw from being in nomination for the Supreme Court. Indeed, some say that I should withdraw from the bench altogether. Frankly, in some ways that would be easier—and that’s why I will not do it. The fact is that I am not the person I was then.  I recognized at some point in college that my drinking was interfering with my goals, and I cut way back. In effect, I matured. Decades of service demonstrate this, and it’s corroborated by many colleagues who have observed my work for years. I hope my behavior when I was a teen does not determine who I am now, or will be the rest of my life.  I believe that what I and my family have suffered in the last two weeks is penance for my past sins, and I hope to move on. This episode has heightened my awareness of both sexual assault and the dangers of drunkenness, and I will continue to work against both.

 

It still wouldn’t be a great apology. One element of a good apology is being specific about the wrongs done, and Judge K does not want to, or cannot, do that. Another element is making some form of restitution, and I don’t know how he could do that here. Another element is to accept the consequences, and arguably for him to be a judge is rewarding rather than punishing his criminal behavior.

But perhaps his misery these last two weeks is punishment enough. If we believe in second chances, that we shouldn’t be punished forever for stupid, even criminal, things we did in our youth, then we could permit him to remain a judge. If he apologized.

 

 

Explanation as Apology

One of the more interesting items to emerge from the “me too” movement is a piece written (actually, originally recorded as a podcast) by Dan Harmon, in response to a tweet from a former employee, Megan Ganz, that he sexually harassed her when she worked for him. A few years ago, Ms. Ganz was a writer for a show Mr. Harmon created.

Mr. Harmon delves into his thoughts at the time, recognizing how his “crush” on Ms. Ganz put her in a terrible position. “I crushed on her and resented her for not reciprocating it, and the entire time I was the one writing her paychecks and in control of whether she stayed or went and whether she felt good about herself or not, and said horrible things. Just treated her cruelly, pointedly.” His piece is a fascinating look into the mind of a boss who has “feelings” for an employee, how the boss justifies his behavior–how it makes sense to him to behave in a way that is, objectively, sexual harassment.

Mr. Harmon’s piece is not an apology, per se. As slate.com author Marissa Martinelli notes, it’s more of an explanation than an apology. Its audience is not Ms. Ganz, but rather other men who might develop “feelings” for a woman they supervise. But it’s humble, insightful, and honest, without a hint of blaming the victim or an attempt to save face himself. Those are all ingredients of a good apology.

The result is that Ms. Ganz called the piece “a masterclass in How to Apologize,” and forgave him.

Lawyers Contributed to Priest Abuse Problems

One of the awful threads running through the Pennsylvania Grand Jury report on Catholic priests who abused minors is the role of lawyers. While there may indeed have been lawyers who helped the situation, the only ones mentioned in the report assisted in the cover-up, in one way or another.

For example, one District Attorney investigated an abuse case in the 1960’s. After interviewing a child victim and his mother, the DA wrote the bishop that, “in order to prevent unfavorable publicity,” the DA had “halted all further investigations into incidents involving young boys.” When the Grand Jury asked the former DA why he had deferred to the bishop, he said, “I really have no proper answer.” He admitted he needed the bishop’s support for his political career (p. 216). Prosecutorial discretion is a hallmark of the American criminal justice system, but this poor decision meant other children became victims of this abusive priest in Beaver County.

Other lawyers complicit in the cover-up represented the various dioceses. They helped bishops find ways to move abusive priests to other dioceses or out-of-state, and they insisted on non-disclosure agreements in the civil cases they settled, all to ensure that names and behavior of criminal priests would not be publicly disclosed. In some cases, they actively sought to discredit the victims “with unrelated and irrelevant attacks,” according to the Grand Jury report. For example, in one case in Allentown, the diocesan attorney found an informant who stated that the girl who alleged that she was a victim of the priest abuse was “one of the girls who had an affair with a coach at Central Catholic.” The Grand Jury noted that the “information that a Central Catholic coach may have been sexually abusing students was used as evidence against the victim, instead of yet another crime not reported to the police.” (p. 25) In a Harrisburg case where a priest molested five sisters from one family, the Grand Jury reported, “Diocesan lawyers argued that the Diocese was not responsible for the conduct of its agents.” (p. 168)

Although these attorneys purported to represent the diocese, it appears that they were representing only the bishop, and even the abusive priests – and not looking out at all for the well-being of the families that comprised the diocese. The Grand Jury found instances where the diocesan attorney recommended that the bishop remove a particular priest from his post, but it didn’t cite any instance where the attorney advised the bishop to report the abusive priest to the civil authorities.

Lawyers who represented victims suing the diocese were surely trying to seek justice for their clients. But many of these cases resulted in some monetary compensation plus a non-disclosure agreement (NDA). One wonders whether the victims might have preferred the opposite—they might have been willing to forego some of the money if the priest’s name and behavior were publicized. The Grand Jury report suggests that, at least for some victims, “justice” meant exposure, ending the secrecy (see p. 4). Being compelled to sign an NDA only perpetuated the secrecy surrounding these crimes.

A lawyer has an ethical obligation to render candid advice to a client, taking into account not only legal but also moral considerations (Model Rules of Professional Conduct 2.1). Were there lawyers who encouraged bishops to honor victims above priests, to remove offending priests immediately and permanently from positions where they had access to children, to establish safeguards and reporting mechanisms to prevent further abuse? The report makes no mention of this. Sometimes lawyers are the heroes who make sure justice triumphs – but not here.

Apology for a Weak Apology

Ohio State University Football Coach Urban Meyer issued two apologies this week: one on Wednesday, for his mishandling of abuse allegations against one of his assistant coaches; and another yesterday, for not including an apology to the coach’s wife in his previous apology.

A university investigation revealed last week that an assistant football coach, Zach Smith, had a list of employment performance issues over the last few years that his boss, Coach Meyer, chose to ignore. In addition, Smith’s wife Courtney alleged several times that her husband had physically abused her, which Meyer also chose to ignore. Meyer finally fired Zach Smith last month, after Courtney Smith obtained a restraining order against him; and the University suspended Meyer for three weeks for failing to follow university procedures regarding Smith’s behavior.

In Wednesday’s apology, Meyer acknowledged that he “led with his heart, not his head,” in failing to address the allegations against Zach Smith, with whom he had a family-like relationship.  “At each juncture, I gave Zach Smith the benefit of the doubt.” As apologies go, there were some good lines in this one, which indicated some humility and regret. It sounds sincere. However, when asked by a reporter on Wednesday about whether he had a message for Mrs. Smith, he said only, “I’m sorry we are in this situation.”

Yesterday, Coach Meyer issued the following statement, that he tweeted and university officials emailed:

“Let me say here and now what I should have said on Wednesday: I sincerely apologize to Courtney Smith and her children for what they have gone through. My words and demeanor on Wednesday did not show how seriously I take relationship violence. This has been a real learning experience for me. I fully intend to use my voice more effectively to be a part of the solution.”

The media are referring to this statement as an apology, but it’s more of a statement of regret than an apology. Anyone could have issued this statement — even those of us who do not know Mrs. Smith are sorry “for what they’ve gone through,” take relationship violence seriously, and would like to be part of the solution. One of the principles of a good apology is that it takes responsibility for the offending behavior, best demonstrated by specifically naming it. In contrast, Coach Meyer seems to be sorry only for the impact, rather than identifying anything he did to contribute to “what Courtney Smith and her children have gone through.”

A more effective apology would say something like, “I now realize how my failure to act on these allegations contributed to the Smith family’s suffering. I could have done something to stop this years ago, but I did nothing. I hurt Zach’s family, I hurt Zach, I hurt our team and our program. I’m going to use this three-week suspension to examine my behavior and hopefully emerge from this as a better coach and a stronger voice against domestic violence.”

Given his years of denial regarding Mr. Smith’s aberrant behavior, I would not expect Coach Meyer to be able to make an apology like that right away. It will take time for him to reflect on how he got this wrong. The media demand immediate an response, and he did his best under the circumstances. Perhaps his suspension will give him the time he needs to get it right.

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