# The impossible problem of due process

*I wrote this entire post in February of 2023, during the fallout from the TIME article. I didn't post it at the time for multiple reasons:*

*   *because I had no desire to get involved in all that nonsense*
*   *because I was horribly burned out from my own community conflict investigation and couldn't stand the thought of engaging with people online*
*   *because I generally think it's bad to post on the internet out of frustration or outrage*

*But after sitting on it for a full year, I still think it's worth posting, so here it is. The only edits I have made since February 16th, 2023, were to add a couple interstitial sentences for clarity, and change 'recent articles' to 'articles from February 2023'. So, it's not intended to be commenting on anything more recent than that.*

*I am precommitting to not engaging with any comments, because I am mostly offline and I think that is good. I probably won't even look at this post again for several weeks. Do what you will. Here is the post:*

* * *

*Note: I am erring on the side of not naming **any** names in this article. There is one exception for the sake of clarity.*

In my time overseeing the global rationalist community, living in the Bay community, and just generally being a person, I've seen a lot of people face up to complicated conflicts. 

People often get really mad at each other for mishandling these cases, and will sometimes publicly point to these failures as reasons to condemn a person or group. However, I challenge you to point to a *single* entity in the world that has figured out a process for handling non-criminal misconduct that you would be happy with no matter whether you were the aggrieved or the accused party. Maybe such a thing exists, but if so I have not heard of it.

This post is a survey of the different ways that people try to resolve community conflicts, and the ways that each of them fail.

Committees/panels
=================

In cases of major conflict or disagreement, it often seems like the right thing to do to convene a panel of impartial judges and have them hear all the evidence. I personally know of at least seven specific cases of this happening in the rationalist community. Here are some of the problems with this approach.

Investigations eat up hundreds of person-hours
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The case I'm most familiar with has been investigated four different times, by different people and from different angles. Five separate reports have been written. At time of writing the situation has dragged out for three full years, and it's consumed over 100 hours of my time alone, and who knows how much time for the other like 30 people involved.

You might think "holy shit, at that point who even cares, this is obviously not worth all those precious life hours that those 30 people will never get back, just ban the guy." I'm inclined to agree, but unfortunately:

Panels generally don't have much real ability to enforce things
---------------------------------------------------------------

If the members of your community don't agree with your decision to ban someone, you can't force them to abide by your decision.

Here are the actions available to you:

*   Announce your decision to everyone in the community
*   Ban the person from spaces that you personally have control over, which may include your home, events you are organizing, and online spaces like Discord servers, Google groups, etc.
*   Make recommendations for the behavior of other people and institutions
*   Apply vague social pressure in the hope of making people follow your recommendations

Here are things you cannot do:

*   Make people stop being friends with the person
*   Make the person stop holding events in their own home or in public

Panels act like they are courts of law
--------------------------------------

In a court of law, you are presumed innocent unless and until you can definitively be proven guilty of a specific crime. But this is far too strict a standard to use in community dispute — well-kept gardens die by pacifism, and you shouldn't have to keep someone in your community if they're causing problems, even if you can't find definitive proof that they did some particular thing that everyone would agree is really bad.

On the opposite extreme, in #MeToo you are presumed guilty as soon as there's an allegation against you. The intent is to counteract the perceived phenomenon of assault allegations being dismissed by default, but obviously believing 100% of allegations uncritically would go too far in the other direction. In 2014, [Scott estimated](https://slatestarcodex.com/2014/02/17/lies-damned-lies-and-social-media-part-5-of-%e2%88%9e/) that "greater than 0.3% of men get falsely accused of rape sometime in their lives, and the most likely number is probably around 3%."

I think the best you can do is to make a holistic judgment, not relying on any one piece of evidence. You should be able to pass judgment on someone if they're just generally agreed to be terrible by many people, even if they haven't done any one provable thing that is really egregious.

But panelists often feel like they *have to *adhere to a really high standard of evidence, because:

Panels often lack a secure sense of legitimacy
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If the community disagrees with your ruling, they may not only refuse to adhere to it, but also decide that they no longer trust you. In the worst case, they may decide you need to be removed from power or even socially destroyed. I've seen this rip communities apart. Angry constituents threaten panelists' reputations and livelihoods, and the reputations of their friends and allies. People may divide into factions that never forgive each other.

With this hanging over you, it's hard to not take it into account when making your ruling.

Favorable rulings can lend legitimacy to bad actors
---------------------------------------------------

If the panel ends up officially condoning the behavior of a bad actor — something they are likely to do even if they personally think the person is terrible, if they believe they need standards for evidence and conviction comparable to those in an actual court of law — that gives the bad actor legitimacy, and can allow them to do more damage.

Extended investigations are extremely stressful for all parties involved
------------------------------------------------------------------------

More than 50% of the reason I stepped down as global organizer was that I became entangled in all these horrible conflicts with very angry people on all sides. 

The worst conflict dragged out for about 8 months. I was involved first as an investigator, then, after I passed my judgment and the accused parties took issue with my decision and my process, I became the subject of an investigation where the original accused party accused me of unfair conduct, abuse of power, and unfitness for leadership. They took their accusations both to the person they believed to be my boss, and to the people I oversaw, trying to destroy those people's trust in me. I received dozens or sometimes hundreds of messages a day from them, and was accused of stonewalling and dishonestly refusing to respond when I had really legitimate excuses like “my sister is in the hospital with internal bleeding", or "I'm on a transatlantic flight and don't have internet" or “it is literally the middle of the night where I am" or “this has been going on for four weeks and I want to live my life”.

At one of the four heights of the conflict, all I did was cry, complain to anyone who would listen, drink alcohol, and then cry more. None of this was worth it. It burned me out horribly, burned out at least two other organizers, and made me and dozens of other people miserable.

\-\-\-

After the mishandling of the Brent Dill case (details below), one of the three panelists essentially went into hiding, avoiding all social events for months.

\-\-\-

The aggrieved parties are often dredging up trauma and sometimes become too exhausted to continue.

There is often no way to find the objective truth
-------------------------------------------------

Much of the time, it just comes down to one person's word against another, and you often have no way of knowing who to trust. 

*   **You can't assume that everyone is engaging in the investigation in good faith**
    *   **The accused party has incentive to defend themselves whether or not they actually did the thing.**
    *   It's possible that the aggrieved party is lying.
*   **Remembering specific details of events that you have no record of is really hard**
    *   Your brain naturally assembles events into a narrative and will interpret or even alter memories to conform to that narrative.
*   **People can legitimately and in good faith interpret the same events very differently**
    *   In one case I'm familiar with, there was a dispute as to whether one party had attempted to blackmail the other, in a private verbal conversation where only the two parties to the dispute were present. They actually ended up publicly agreeing on approximately the words that were said, but the complainant felt that the tone implied a threat, while the other party claimed that no threat was intended. These two versions of events do not contradict each other.

* * *

Other approaches
================

Throwing out due process is also problematic
--------------------------------------------

I have had two friends thrown out of the community without due process, and it was absolutely awful for them. For one of them, I was never told enough about the situation to make my own judgment, but the other one was thrown out basically just because a couple powerful people didn't like his vibes.

I've also learned: It is easier to remove good people from your community than to remove people who are aggressive, manipulative, narcissistic, or psychopathic, because the former will remain reasonable throughout the process, while the latter will fight dirty.

Codes of conduct can't save you
-------------------------------

Sometimes people suggest that maybe you could avoid all this litigation if you just make a really good and clear code of conduct and then throw people out if they violate it. That would be nice, but it doesn't work in practice for rationalist communities, mostly because:

### You can't impose strictures unilaterally / without the consent of the governed

When joining a workplace, a university, or a club sport, you are opting into a code of conduct, including the part where there's an entity that enforces that code of conduct on you. It may not be explicitly on your mind, but at some level you're aware that that's part of the package you're choosing to sign up for.

Workplaces can have codes of conduct, because they are (often) neatly circumscribed social environments, and have a clear purpose. The same is often true of recreational sports. It is not true of the rationality community.

At a local meetup group, where the organizer is widely liked and recognized as the group leader, the leader may have the power to exclude people from their events – especially if the the meetings are held at a private location like the organizer's house. But the rationalist community also encompasses various workplaces and group houses, which have various amounts of power to exclude people.

The lack of a single institution makes the problem more difficult, but it's also not something that can be easily changed (nor do I think it should be changed).

### Introducing codes of conduct creates weird dynamics

The most common response I get from organizers when I bring up codes of conduct is: "It's true that we don't want women to be driven off by a bunch of awkward men asking them out, but if we make everyone read a document that says 'Don't ask a woman out the first time you meet her', then we'll immediately give the impression that we have a problem with men awkwardly asking women out too much — which will put women off anyway."

This is a good point and I don't know how to get around it, so I generally just don't recommend formal codes of conduct.

### It's difficult to write rules that will actually lead to the thing you want

As a (maybe weak) example, most people are assuming some implicit code of conduct in everyday interactions, like "Don't be a sexual predator", "Don't be a dickhead", and "Don't ruin other people's lives." But when you try to litigate these things, you run into problems like:

**Don't be a sexual predator** -\> What constitutes predation? What if I thought it was consensual and they didn't? What if it was technically statutory rape but the younger party was 17 and enthusiastically consented and has never regretted it? What if I didn't do anything that looks wrong if you go strictly by the book, but I nonetheless traumatized a bunch of people and feel no remorse about it?

**Don't be a dickhead **-\> What if 90% of people think I'm dickhead but I can find four witnesses who really like me? What if I provide a lot of value to your community; at what point am I so valuable that I can get away with being a dickhead? What if nonstandard social interactions are part of the way I provide value?

**Don't ruin other people's lives** -\> I didn't ruin their lives, they're just oversensitive. Also, throwing me out of the community would ruin my life, therefore, you can't do it.

Going to the authorities
------------------------

In multiple articles from February 2023, it's suggested that a responsible course of action in sexual misconduct cases would involve encouraging women to report their experiences to the police. They also mention Title IX as an example of what we should be aspiring to. I think both of these are things that just sound nice as soundbites, but are actually not good suggestions.

I'm including this section mostly in response to those articles, but it will probably be obvious that I don't actually take these suggestions seriously.

### Title IX

As a student at a US university who has experienced sexual harassment or assault, you have recourse to the university's Title IX Coordinator. If you choose to report, the university's Title IX Hearing Panel will investigate the case by talking to you, the accused, and any other relevant parties such as witnesses.

If this sounds like my description of panels above, that's because it is pretty much the same thing. It has all the pitfalls of panels, with the additional downsides that the people are more likely to be strangers to you and are less likely to be aligned with your interests. (For one thing, the college has a vested interest in making sure you do not report sexual assault to the police.)

I had several friends in college go to the school authorities after being sexually assaulted. I do not think any of them were happy with either the experience or the outcomes.

I remember reading an article (though I can't find it; it was nine years ago) about one of my friend's cases, where the assailant's father came in and said that the whole thing was preposterous and my friend was just a jilted lover who wanted attention. I don't think an ideal process would open complainants up to public defamation by the fathers of their assailants.

Other prominent incidents that happened at my school:

*   A student was expelled after being accused of sexual assault, and then sued the school for it
*   Someone anonymously posted a list on Tumblr of campus rapists, and everyone was very upset

### The police

It's confusing to me that this is even a suggestion, because I frankly don't see what the police are expected to do in most cases. If a person has been sexually assaulted in a way that left them with both injuries *and* the perpetrator's DNA on them, and they want to press charges that might result in a criminal sentencing, then that seems like the kind of thing the police are equipped to handle. Otherwise, I don't see how going to the police does much good. I couldn't find reliable statistics (I found many but they were highly varied), but the general vibe seems to be that sexual assault cases are rarely prosecuted.

Maybe the idea is that if the police receive multiple accusations against a person, they will eventually take them seriously, and maybe that person will become a registered sex offender or something? I don't really know how this works but in any case it doesn't seem like an obviously good way to resolve disputes within a community. 

This suggestion is also confusing because there's a lot of other messaging that the police are not to be trusted, so like, why should we go to them in this specific scenario?

### HR departments

HR departments exist to serve the company, not the employees, and so they are, in general, morally corrupt.

* * *

Case study
==========

Let's take a look at the case of Brent Dill. This is the only name I will be naming in this post, because I thought that obfuscating it would do little good and just be unnecessarily confusing.

I'm including this case study because I think a concrete example is a lot more helpful than just saying "Look, we've tried justice panels and they didn't work as intended, take my word for it." It's also a case where most of the important details are already public, and where the case is widely considered to be closed.

Relevant reading:

*   Mittens Cautious: [Warnings](https://medium.com/@mittenscautious)
*   CFAR: [ACDC Update and Apology](https://rationality.org/resources/updates/2018/acdc)
*   CFAR: [CFAR​​'s Mistakes Regarding Brent](https://rationality.org/resources/updates/2019/cfars-mistakes-regarding-brent)
*   Thing Of Things: [Whisper Networks, Callout Posts, and Expulsion: Three Imperfect Ways of Dealing With Abuse](https://thingofthings.wordpress.com/2018/07/09/whisper-networks-callout-posts-and-expulsion-three-imperfect-ways-of-dealing-with-abuse/)

Whisper network
---------------

When I arrived in the Bay in June of 2017, fresh out of college, Brent was still in good standing in the community. I knew many people who were friends with him or considered themselves part of his circle. 

However, even then, there were plenty of people who found Brent to be toxic and dangerous — it was not a secret or even a controversial statement that Brent had a lot of darkness in him; I'd say that pro-Brent and anti-Brent people mostly just differed in how they assessed the expected value of interactions with him.

As I was a young woman and a new member of the community, multiple people were quick to tell me to stay away from Brent; after meeting him I immediately agreed with that assessment and went on to join in warning other people about him. 

CFAR panel
----------

In 2017, CFAR convened a panel of three people (only one of whom was a CFAR employee) to hear community disputes. This panel was called the Alumni Community Dispute Council, or ACDC for short.

In January of 2018, one of Brent's ex partners came to ACDC with allegations of a pattern of abuse by Brent. ACDC investigated this case for many hours, and in April, they privately recommended to CFAR that no action be taken and that Brent remain a community member in good standing.

I knew one of the three ACDC panelists well at the time, and that person did *not* agree with the conclusion that Brent should remain in the community. They were the first to warn me and many other young women to stay away from Brent, and I had previously seen them try pretty hard to block Brent from attending a private CFAR event. The fact that this person ended up party to a pro-Brent ruling indicates that something in the process went very wrong.

Since it is now widely agreed that kicking Brent out of the community *was *the correct course of action, I think it's reasonable to ask how this ruling could have happened. 

I think the ACDC panelists were well-intentioned, but as CFAR's Executive Director put it in [CFAR​​'s Mistakes Regarding Brent](https://rationality.org/resources/updates/2019/cfars-mistakes-regarding-brent), they were "in over their heads." Panels *may* be equipped to hear cases of clear-cut assault, but it's much more difficult to make a ruling on a potentially abusive but nominally consensual relationship between two adults.

In addition, this case had some factors that made it difficult beyond just the inherent complexity of figuring out interpersonal conflicts between adults. Specifically:

*   **Brent's activities were enabled by several powerful friends**, one of whom was a senior staff member at CFAR at the time. It's likely that this created pressure on ACDC to rule in favor of Brent for fear of upsetting that person, even if this pressure was only experienced at a subconscious level.
*   **Brent was a skilled manipulator, **and seems to have successfully controlled the frame of the ACDC investigation. Quoting from CFAR's apology: "The \[ACDC\] report restated Brent’s oft-repeated narratives about himself almost verbatim, and largely read like a pro-Brent press release."

These factors are *not* unique to Brent. In most of the truly complex and protracted cases that I'm familiar with, at least one party has been significantly manipulative. Many well-intentioned people, even those who are good at dealing with conflict or have other qualities that might make them a good fit for a conflict resolution panel, are still susceptible to this kind of manipulation. It's also just very difficult to come to a conclusion when not all parties are engaging in good faith.

Medium posts
------------

In September of 2018, two of Brent's former partners and one of his former friends posted publicly about their experiences with him [on Medium](https://medium.com/@mittenscautious), under the name Mittens Cautious. The case was thereby brought before the court of public opinion, and public opinion came down firmly on the side of Mittens Cautious.

When people found out about ACDC's previous ruling on Brent, many were appalled that ACDC had seen the evidence laid out in the Medium posts and ruled that it was okay for Brent to continue on like that. ACDC was disbanded within a week of the first Medium post, and people publicly questioned whether they could trust CFAR or the members of ACDC going forward.

REACH panel
-----------

Immediately after the Medium posts went up, the Berkeley REACH (a rationalist & EA community center that existed at the time) announced the formation of a panel intended to apply actual due process to the Brent case. This panel was elected by a vote of REACH stakeholders, and carried out an investigation over the next three months.

In December, the panel released [a statement](https://www.berkeleyreach.org/blog/reach-panel-update-on-brent-case) saying that they recommended that Brent be banned from REACH, but that, following legal advice they'd received, they would not be publicly sharing their reasoning. It's not mentioned in the linked statement, but I believe the concrete worry was that publishing a statement that casts someone in a negative light opens you up to a libel lawsuit. So, the community as a whole gained very little from this repeated investigation.

* * *

When *does *community resolution work?
======================================

I *have *seen some local rationalist communities handle conflicts and bans relatively gracefully. These communities:

*   **are relatively small **— about 150 people or fewer, which probably-not-coincidentally is Dunbar's number, 
*   **have explicit structure** — most are centered around a weekly or monthly event and have one to four people in leadership positions, and 
*   **are fairly bounded** — generally strictly social, lacking the entanglement of personal and professional life found in the Bay and sometimes in EA.

In those communities, processes for hearing interpersonal complaints can sometimes actually work. Some groups (generally smaller ones) elect a benevolent dictator; others let all their members vote to elect a panel.

In a sub-Dunbar community, everyone (approximately) knows each other, which makes it easier to trust the decisionmakers and the process that chose them.

Also, in a meetup-based community, the decisionmakers have some real enforcement authority, if they find that sanctions are necessary. They can't stop anyone from being friends with the accused, but they definitely *can* exclude them from meetups and online spaces — and if the meetups (and online spaces) are the heart of the community, this is a pretty effective way of excluding the person from the community as a whole.

However, having a small, structured community is not sufficient to ensure that this will work.

What would be the elements of a good system?
============================================

Now that we've seen all the ways that things can go wrong, it should be easy to reverse those and see how things could go right! If we can't look at all the factors and then figure out the optimal course of action from first principles, how can we call ourselves rationalists?!

That's a joke; there's a reason this post is called "The **impossible** problem of due process". That said, I think that a good system for community resolution of conflicts would probably have the following elements:

*   **Trust: **The decisionmaking body needs to have legitimacy in the eyes of the community, and the process needs to have sufficient transparency to allow people to judge whether they approve of it.
*   **Enforcement ability: **If you decide a person should face consequences for their actions, you need to be able to credibly and legitimately enforce those consequences.
*   **Holistic judgment:** A person should be kicked out if they seem, on the whole, to be bad for the community. They don't need to be found guilty beyond reasonable doubt of a specific egregious crime.