After Franken: Three Logical Fallacies that Triggered a Resignation

It is befitting in the age of viral politics that Time magazine’s 2017 person of the year was not a person but a movement: the silence breakers of #MeToo. The recent wave of sexual misconduct allegations has triggered nationwide trauma. The meteoric rise of the #MeToo movement and the heated social media debates that followed are symptoms of this trauma. I know because I have been triggered myself. I’m a feminist, a survivor, and the former partner of an army veteran. I spent several years working with homeless women and runaways who were repeatedly raped and abused. I wrote articles that policy makers still use to assist victims. After a decade in that effort, the personal toll was so great I stopped studying sexual violence and turned to war. Only now as I write do I recognize the irony of that sentence.

Senator Al Franken (D-MN)

For over a month, I followed the runaway train that led to Senator Franken’s resignation. I spoke with survivors, colleagues and concerned citizens. When the effects of trauma resurfaced in my own life, I tried to turn away, but as the tide of public accusations continued to rise so, too, did my concern for victims. In this respect, Franken’s case has been particularly insidious, precisely because the allegations against him occupy a gray area. Whereas news of Harvey Weinstein’s egregious conduct has been empowering for survivors who feel vindicated that a man who ushered women into controlled spaces and sexually assaulted them for decades will finally be punished, the precipitous demand for Franken to resign left many feeling stunned and confused.

LeeAnn Tweeden, center, and Al Franken, right, sign posters on the “Hope and Freedom” Tour, Camp Arifjan, Kuwait, 2006.

For veterans and military-connected civilians, the matter is even more fraught. As Franken’s first accuser, military spouse Leann Tweeden said she was violated during a USO tour where she and the senator had volunteered to entertain troops. Another accuser, Stephanie Kemplin, is an army veteran, and Senator Kirsten Gillibrand, who led the call for Franken’s resignation, is a prominent member of the Senate Armed Services Committee.

Sexualized culture on display on the “Hope and Freedom” Tour.

The removal of Senator Franken has implications not only for USO entertainment but for the sexualized military culture it mirrors, even for military training, where men and women alike are subjected to sexual slurs and other harsh methods intended to break down their individuality and sense of control over their bodies. These methods, however objectionable, have been used across time and culture to condition soldiers to follow orders when lives are on the line. But if the time has come to reconsider the means by which a civilian is transformed into a soldier, if it is time to rethink sexual assault prevention in the military, does the case against Al Franken provide an exemplar that can reasonably be followed?

In contemplating this question, I identified three logical fallacies that were routinely applied from across the political spectrum as the Franken case was “litigated” in newspapers and social media, including errors of fact and interpretation inadvertently promulgated by his supporters. Of note, I use the word “myth” to connote false beliefs widely held—yes, false—focusing on the assumptions that undergird these commonly held beliefs. While I won’t question the credibility of any of Franken’s accusers, I will question the interpretations of their statements and the viral social media telephone game whereby facts became myths and myths came to be accepted as part of the cultural consciousness.

Myth #1. Apologizing is the same as admitting guilt in accordance with the facts alleged.

Representative memes: #HeAdmittedIt #HeApologized

In the weeks following Franken’s initial statement, the phrase “he admitted it” was widely circulated to justify his resignation and foreclose discussion of the specific allegations against him. In response, I posed a question to numerous people on social media: What is “it”? What exactly is the conduct that warrants resignation? In all cases, I was shut down or ignored, the common response, stated as an exclamatory: it doesn’t matter because he apologized for it!

The he-admitted-it meme, as well as the circular logic that it doesn’t matter what “it” is because he admitted “it”, is an indicator of a broader discourse that developed around the Franken case—the Franken standard, if you will. In the opening line of “Yes, Franken Should Go,” Newsweek’s Neil Buchanan pushed the meme in a stealthy parenthetical: “In the immediate aftermath of revelations about Franken’s (now-admitted) troubling actions toward women, progressive writers have taken opposing positions.”

The Nation’s Joan Walsh, whose more nuanced approach I generally agree with, dispatches the same uncritical assumption:

“Against the backdrop of the sexual-abuse scandal that threatens to drive Alabama GOP Senate candidate Roy Moore—accused of kissing or groping nine teenage girls—out of the race, I have to recognize a huge double standard in my reactions. I believed Moore’s accusers right away—especially given all the detail in their accounts, and all the corroborating witnesses. I confess: I spent at least 30 minutes looking for proof that Franken didn’t do what he’s accused of. (Then he essentially admitted he did.)”

As a legal scholar, it’s hard to know where to start with this statement. The first and most obvious problem is that it implies a false equivalency between a man accused of sexual assaulting children and Al Franken, who’s accused of…“what he’s accused of.” Walsh later rejects the comparison based on the age and number of accusers, but her selective blindness to details prevents her from asking the most fundamental question: do the accusations against Al Franken rise to the level of sexual assault or sexual harassment? Equally problematic is Walsh’s reference to Franken’s statement as a means of avoiding any examination of the allegations against him. Contrary to her claim, Franken did not “essentially admit [what] he did.”

In mid-November when Walsh’s essay was published, Franken had made a short statement to reporters followed by a longer one the next day. Although these statements were widely treated as an admission of his guilt, at no time did he confirm any material fact alleged by Tweeden or any subsequent accuser, nor did he confirm the characterization of any interaction as a crime or civil tort, be it sexual assault, sexual harassment, groping, or forcible kissing. On the contrary, his first reaction was that he did not “remember the rehearsal for the skit in the same way.” In his resignation speech, he expanded on this statement. In acknowledging that women deserve to be heard and taken seriously, he said, “I think I gave some people the false impression that I had admitted to things that, in fact, I haven’t done. Some allegations against me are simply not true. Others I remember very differently.”

Bypassing the facts and replacing them with inaccurate characterizations of Franken’s apology was by no means unique to one or two reporters. One only needed to scan the headlines and social media discussions that went viral in the hours after each of his statements to know this:

“Al Franken, battling for his political life, apologizes for groping” —New York Times
“‘Ashamed’ Al Franken apologizes in senate over groping” —Politico
“Did he or didn’t he: Al Franken keeps apologizing for groping he says he can’t remember doing” —Washington Post

To be clear, these headlines are all wrong: Al Franken did not apologize for groping.

Joan Walsh blamed the divergent responses to Roy Moore and Al Franken on partisanship—her condemnation of Moore represented a “huge double standard.” Her next thought revealed a different calculation: “I believed Moore’s accusers right away [because of] “the detail in their accounts” (italics mine). Having stipulated the importance of details in Moore’s case, she then proceeded to avoid any serious consideration of the details put forth by Franken’s accuser—she spent 30 whole minutes looking for proof to exonerate him.

Thirty minutes from the paid correspondent of a treasured progressive newsmagazine with a responsibility to investigate and accurately report the facts? Because the stories and discussions about Tweeden’s accusation were questionable from the start, and quite disturbing to me as a survivor and legal scholar, I have not been able extricate myself. Nor have other survivors: we know that details are critical in validating our experiences. We know that accurate attention to detail is a requirement in preserving the credibility of those whose cases are currently in the system, those who will bring complaints in the future, and those who want restitution or even a simple apology. And we know that awareness-raising sound bites—#MeToo, #HeAdmittedIt, #BelieveTheWomen—cease to be effective when they are used to foreclose dialogue.

#metoo

While I could find no one willing to admit it, after a month of discussion and observation, I came to believe that many people, reporters and politicians included, were sidestepping the facts because they didn’t actually know what Franken was accused of. They hadn’t read the women’s statements or his, they hadn’t understood them, or they rightfully assessed that they were not qualified to interpret them.

Myth #2: Believing the women means accepting every accusation as stated.

Representative meme: #BelieveTheWomen

There is a difference between a public allegation made for the purpose of witnessing or breaking silence, a public allegation made for profit or benefit in kind, and a public allegation made to provoke a legal or political response. Attorneys make public statements about their clients all the time. Their purpose is to influence public discourse and bias potential jurors in their favor. Jurors are vetted and juries sequestered to avoid this, often unsuccessfully.

When I first read Leeann Tweeden’s written statement, I believed she had drawn premature conclusions. The term “forcible” is a quite specific prosecutorial term that was directly contradicted by the facts she had given. The law distinguishes between unlawful contact where lack of consent is overcome by force—i.e., forcible contact or assault—and consensual contact that feels forceful or overwhelming. One is a crime; the other is an awkward misunderstanding or possibly an infraction, depending on other factors, and not every layperson can make that distinction or understands the importance.

The words “without consent” are similarly misleading. While there may have been questions in a hearing as to the degree to which Tweeden felt pressured to rehearse a kiss, these questions would have been weighed against her unequivocal assertion that she gave her consent explicitly: “Okay, we’ll rehearse the damn kiss.”

With regard to the well-known photo, Tweeden stipulated that she was asleep when it was taken and didn’t know anything had happened until she got home and a photographer gave it to her. In her on-air statement at KABC radio where she had worked as an anchor for ten months, she rightly qualified the description by noting that she was wearing a flak vest and Franken was posing “…as if he’s grabbing [her] breasts.” She seemed to understand that drawing legal conclusions from a photo alone is problematic, especially when Franken doesn’t appear to be touching her (there is space beneath his left hand and it’s impossible to tell if his right is touching due to the camera angle). But in her written statement—and in KABC’s sensational headline, which is all most people read—Tweeden, or her editors, characterized the photo as groping:

“Senator Al Franken Kissed and Groped Me Without My Consent, and There’s Nothing Funny about it” — KABC.

There are also patterned discrepancies between Tweeden’s verbal statement and the written version that appeared on the station’s website. Significantly absent from the verbal statement are the words forcible, without consent, badgering, groping, sexual assault, and sexual harassment. Most people didn’t listen to the interview. They formed their opinions on the headline, which raises a question as to who characterized the evidence in these prosecutorial terms in the headline and online statement? Who defined the senator’s interactions with Leeann Tweeden as crime?

As I read through the written statement a second time, I noticed discrepancies within it as well. Whereas Tweeden recites the details in a straightforward manner with no conclusions in the first part, the tone changes dramatically halfway through, and the material after the photo includes both direct accusations and carefully worded phrases implying that Franken committed a crime.

1.) “Senator Franken, you wrote the script. But there’s nothing funny about sexual assault.”
2.) “I couldn’t believe it. He groped me, without my consent, while I was asleep.”
3.) “You forcibly kissed me without my consent, grabbed my breasts while I was sleeping and had someone take a photo of it, knowing I would see it later and be ashamed” (italics original).

One needn’t conjure Roger Stone to notice the lawyerly quality of the writing. In the first case, Tweeden seems to be accusing Franken of sexual assault, but the two sentences are unconnected. In the second and third, she’s off the hook for making unfounded assumptions because she was sleeping, and as a layperson, she’s not required to know that you can’t make those assertions if you weren’t conscious to witness or experience them. Similarly, Tweeden herself is not expected to be schooled in proper usage of the word forcible. If she had made these statements in court, she would have been interrupted, the objections being multiple: witness is misstating evidence; witness is drawing conclusions; facts not in evidence; and with regard to the photo, an objection on hearsay evidence—in this case, improperly representing an interpretation of media as direct knowledge and experience—might also have been sustained.

Although the accusation was published on KABC’s website, it had Tweeden’s name on it. But why assume it wasn’t revised at the direction of her employers? Why assume it wasn’t altered by an editor or attorney? These questions would have been raised in a hearing, too—no professional media outlet publishes unedited stories, and no business I know of publishes criminal accusations without legal advice, particularly if the allegation is against an elected official.

Myth #3: The law is irrelevant.

Representative meme: #FrankenMustGo

Contemplation of Justice

With the recent deluge of public misconduct allegations, many have argued that the law is no longer relevant; it’s a woman’s experience that matters. I agree that a woman’s experience matters for the purpose of healing and empowerment both on the individual and societal level, but Leeann Tweeden and her KABC cohorts made the law relevant when they characterized Senator Franken’s actions as crime. Reporters made the law relevant when they parroted and amplified these claims. 33 Senate Democrats and two independents made the law relevant when they forced a colleague out of office without a hearing or investigation, depriving his constituents and millions of Americans of the benefit of his service.

The recorded interview adds credence to the idea that Franken’s first accuser was manipulated. Much like her written statement, Tweeden’s on-air narrative proceeds at first in a matter-of-fact manner, but the tone quickly changes with the intervention of her cohost, Doug MacIntyre. After MacIntyre redefines “a comedy kiss” as an “incredible violation,” Tweeden repeats the accusation: “Well, I was violated; I was disgusted.” This is not to say she didn’t feel violated, only that her testimony was shaped by leading questions, and in more than one case, she resists MacIntyre’s suggestions, including when he says the photo was circulated to “everyone on the tour” and Tweeden promptly corrects him: “maybe it was just given to me and [Franken].”

When the subject of the photo re-emerges at the end of the interview, McIntyre segues to an advertisement for KABC’s website:

“By the way, the photo is posted now on our website at KABC.com. If you want to see the picture of Al Franken basically groping Leeann Tweeden while she’s wearing a flak jacket and a Kevlar helmet on a military transport, asleep coming from Afghanistan to Los Angeles, it’s at KABC.com, as is a written statement from Leeann that you all can read at your leisure.”

As of December 23, the KABC website story with the defamatory headline, the one where people can go “if they want to see the picture of Al Franken (basically) groping Leeann Tweeden” had been shared 531,000 times on Facebook and liked 46,000 times on Twitter. The overall page views must have been astronomical, not to mention the exponential replication of the story in online papers and social media. By contrast, President Trump’s now famous “covfefe” tweet received 131,000 likes while it was trending and his “little rocket man” tweet maxed out at 132,000.

I scanned the Twitter account for KABC radio Los Angeles, which is known here in Southern California to feature right-wing hosts who go on outlandish rants disguised as consumer advocates. The website has a little over 5,000 followers, and for the week of December 16th through December 23rd, there were 71 tweets, 40 of which received no likes, 14 of which received one like, 15 of which received two, three, or four likes, and two of which received nine likes. The more popular, nine-like tweets both referred to the infamous Thomas Fire, which is now the largest fire in California history, destroying over 281,000 acres. A tweet of shirtless American soldiers wrestling in the snow with South Korean troops received no attention at all, as did this one: “#Pentagon confirms existence of $22m #UFO Program, Releases Internal Videos.”

With the internet driving news and billions of people crowding social media, getting a story noticed has become as difficult as investigating and writing one. In order to sell ads, stories have to be noticed; in order to be noticed, stories must trend; in order to trend, they have to be promoted; in order to be promoted, they have to have catchy headlines, and in a perfect Orwellian reversal, many people have stopped clicking headlines to avoid ads. The desperate race for attention has generated wildly inaccurate and flat-out false headlines, which come to be viewed as fact, and are all too common, even among reputable papers.

In 2017, an ordinary click-bait headline is often not enough. A devastating fire, an entire American island without power, the threat of nuclear war: these are blips on the iPhone screen of a distracted, cybersick public. Famous senator captured in lewd photo, ethics hearing to follow: not enough to register a glance.

Sex, however, still sells. Make no mistake, KABC radio was not selling a sympathetic story about about a #MeToo survivor when they exhumed Tweeden’s ten-year-old photo and put her name on the social media map. They were selling an obscene suggestion about a celebrity politician and a beautiful swimsuit model, a “picture of Al Franken (basically) groping Leeann Tweeden”—#SexScandal.

It would be naïve to ignore the possibility of a political influence campaign waged from the right or the left. In 2017, anything is possible. But there’s another theory that’s equally plausible and a whole lot easier to track: Tweeden’s employers took advantage of a female subordinate to boost ratings and cash in on the #MeToo tsunami. Politicians left and right attempted to capitalize.

Quid pro quo sexual harassment is when a manager or authority figure offers an employment benefit, such as a raise or promotion, in exchange for sexual favors. It can also be presented in the reverse, as when a superior suggests or tacitly implies that keeping one’s job is contingent on accepting sexual advances, whether verbal or physical, or when a subordinate is made to fear repercussions for rejecting them.

Leeann Tweeden’s employers encouraged, perhaps even pressured her to tell her story on air. To open the segment, MacIntyre referred to Republican Congressman Darryl Issa, who had been on his show earlier that week with a message: “it’s time to name names.” “We couldn’t agree more,” MacIntyre said, “our very own Leeann Tweeden posted on social media #MeToo,” and “today is the day to tell her story and name names.”

As the segment proceeded, a woman who had stopped working as a lingerie model to start a career in radio was sexually objectified before millions of listeners. It seems to me the radio station also played on Tweeden’s sympathy for #MeToo survivors and her particular sense of patriotism in thrusting upon her the responsibility for a statement that borders on defamation. And perhaps worst of all, the powerful idea of believing women was used to silence reasonable inquiry and turned against survivors.

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Lisa Sanchez-Powers

LISA SANCHEZ-POWERS is a California author whose short stories, reviews, and essays appear in the LA Review of Books, The Millions, Southeast Review, The Rumpus, and Porter Gulch Review, where her short story "Doubt" was a 2018 Pushcart Prize finalist. She completed her Ph.D. at UC Irvine and a Ford Postdoctoral Fellowship at UCLA. Her scholarly nonfiction is widely published and anthologized in law reviews and social science journals. She taught college in New York and California before turning full-time to fiction. She has written a literary thriller featuring anthropologists and Special Forces in Afghanistan and is fast at work on her second novel, a work of fabulist fiction set in Washington Heights and Puerto Rico, circa 1520 to 2020.

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