When #MeToo Got It Wrong: The Al Franken Controversy, One Year Later

It’s been a year since former Senator Al Franken resigned amidst accusations of sexual misconduct, but the controversy over Democrats’ treatment of Franken remains. Senator Kirsten Gillibrand, who led the charge against Franken, has lost supporters over her handling of the situation. Those who support Gillibrand, however, argue that Democrats were smart to push Franken out. The passage of time hasn’t made the Franken episode any less polarizing, perhaps because for many, it still feels unresolved.

Since there was no meaningful investigation into the accusations against Franken, the necessary conversation was cut short. The accusations were made, one after another, and within a matter of weeks one of the most beloved and effective Democratic senators was gone. By the time people spoke up on Franken’s behalf, it was already too late.

To this day, I still believe the way Democrats turned on Franken was unjustified. So even though it may not be smart or popular to defend him, I’m going to do it anyway. The accusations against Franken were questionable. The dominant narrative that he engaged in a “troubling pattern of behavior” was false. And the way Gillibrand and her colleagues rushed to force Franken out—when only 34 percent of women polled in Minnesota thought he should resign—was alarming. The larger goals of the #MeToo movement are desirable, but in Franken’s case, #MeToo got it wrong.

To understand why, let’s consider the strength of the accusations against Franken, examine the so-called “troubling pattern of behavior,” and assess whether or not getting rid of Franken has helped Democrats. At the end I’ll offer my overall take on the Franken situation.

The Accusations

If all you’ve seen about the Franken controversy are headlines like, “An Eighth Woman Accuses Franken of Misconduct” it’s understandable why you’d assume he was a sexual predator. After all, how could someone be wrongfully accused by eight women? In cases like Harvey Weinstein’s or Bill Cosby’s—where the pattern of behavior was so clear and the alleged conduct was undeniably sexual assault—assuming they were probably guilty was reasonable. But Franken’s case is different—both in the severity of the behavior alleged and the purported pattern of conduct.

“Sexual Misconduct”

First, some of the accusations against Franken arguably do not even rise to the level of “sexual misconduct.” I’ll spare you the full details of every accusation, but a summary is that there were three accusations of “forced kissing,” five accusations of touching women while a photo was being taken, and the now infamous photo where Franken is pretending to grope Leeann Tweeden while she’s asleep.

Out of context, the photo looks terrible for Franken. With some context, however, the photo is not so damning.

The photo was taken while Franken and Tweeden were on a USO tour. That type of sexual joke was not uncommon in that environment. On the contrary, broad, raunchy comedy was the norm. Tweeden herself, as evidenced in this Imgur gallery, engaged in similar behavior by slapping men’s asses, fake humping men, and grabbing and kissing a man (presumably without his consent) on the same tour.

The photo’s context doesn’t make the joke enlightened or desirable, but it’s still just a joke. Franken’s detractors lump the photo into the vague category of “sexual misconduct” as evidence of his guilt. But that’s no more valid than saying that Chris Rock displayed “violent tendencies” because he joked that you’ve never truly loved someone unless you’ve thought about killing them.

The Waist-Squeeze

Then there’s Tina Dupuy’s accusation. Dupuy was a former Congressional staffer who wrote over 2,000 words about how Franken groped her during a photo in 2009. Again, the headline sounds bad. But what exactly did Franken do? Did he slide his hand up the back of Dupuy’s shirt? Did he grab her ass while whispering something in her ear? No. He squeezed her waist. And though Dupuy is entitled to her opinion, so are the millions of Americans who do not believe that squeezing someone’s waist amounts to “sexual misconduct.”

Prior to Dupuy’s account, I thought a person’s waist was one of the safest places to put your hand during a photo. Some people put their arm around another’s waist and pull them closer to be friendly or bring them into frame. While it’s possible that Franken squeezed Dupuy’s waist in a lecherous way, she also may have read more into the incident than was actually there.

To be clear, it’s not that I don’t “believe the women” and think that Tweeden or Dupuy are lying. It’s that because the accusations against Franken are open to interpretation, two seemingly contradictory things can be true. Franken may not be a sexual predator even if every one of his accusers is telling the truth. That’s why pushing Franken out without an investigation was so premature. The other accusations against him are similarly debatable.

Forced Kissing

            Tweeden and two other women accused Franken of at least attempted forced kissing. Tweeden claimed that Franken kissed her without her consent during a sketch rehearsal on the aforementioned USO tour. Second, a former elected official anonymously claimed that Franken tried to give her a “wet, open-mouthed kiss” during a 2006 onstage event. Lastly, a former Democratic congressional aide alleged that Franken tried to kiss her and block her exit from a taping of his radio show.

Once again, what most people probably imagined when they saw the headlines—Franken pushing a woman up against a wall and forcing himself on her—is very, very far from reality.

In Tweeden’s case, she and Franken were rehearsing a sketch with a scripted kiss. She alleged that Franken kissed her during the rehearsal without her consent, which is completely plausible. However, it’s also plausible that Franken sincerely thought the kiss was part of the rehearsal, meaning that this was a miscommunication rather than a predatory act. Given that none of the other women Franken performed with during his decades long comedy career has made a similar accusation, there is reason to believe this was simply a misunderstanding.

As for the other two accusations, based on the women’s accounts it sounds like Franken was walking toward them and they believe he intended to kiss them on the mouth. Both accusers may be right. But even if they are, an innocent explanation is that Franken was merely trying to greet his accusers with a platonic kiss on the mouth. Randi Rhodes, a former co-worker who defended Franken, said that he often greeted women that way.  Doing so is increasingly rare these days, but that does not make Franken a predator.

An investigation could have unearthed critical context for such ambiguous accusations. What did witnesses at the onstage event in 2006 think? Was Franken standing 10 feet away or 2 feet away when he allegedly tried to kiss the congressional aide? Since Franken never actually kissed either of these two women on the mouth, just how forceful was he being? More details might not fully condemn or exonerate Franken. But at the very least, those questions should have been asked before rendering judgement.

Predation Or Accident?

            The most numerous accusations against Franken are that he inappropriately touched five women during photo ops. Lindsay Menz alleged that Franken put his hand on her butt in a photo taken by her husband. Two anonymous women made similar allegations. Stephanie Kemplin, an army veteran, said Franken touched the side of her breast. And there was Dupuy’s waist-squeezing accusation.

If you assume Franken is a predator, the narrative is clear. Franken is a creep who takes touches women in sensitive areas while they’re posing for photos. For the record, even if Franken did this intentionally, that doesn’t mean he’s an irredeemable monster who is unfit for elected office. But again, when considering the context, and don’t be scared—some basic math—it’s possible that these incidents were accidents rather than attempts by Franken to cop a feel.

In response to the accusations, Franken said, “I take thousands and thousands of pictures, sometimes in chaotic and crowded situations. I can’t say I haven’t done that. I’m very sorry if these women experienced that.” It’s to Franken’s credit that he does not deny these accusations because it’s likely that he did touch a woman’s butt or the side of a woman’s breast during a photo and that he simply does not remember. But those incidents are not sexual misconduct if the contact was unintentional.

At my wedding last year, my wife and I were taking photos with our guests. During one photo the photographer told me to lower my hands and I touched our officiant’s butt. At first I didn’t even realize it. Once I did, I still kept it there for a few seconds because I didn’t want to screw up the photo. It happens. And it could have happened with Franken.

It’s definitely possible that Franken truly was trying to cop a feel. Though, if so, he certainly chose a strange time to do it—with someone standing a few feet away taking a photo of the incident. But it’s also possible that Franken may have touched the side of Kemplin’s breast or Menz’s butt and not even known what he was touching. Five accusations may sound like too many to be inadvertent, but that brings us to the most important piece of evidence in the case against Franken—the troubling pattern of behavior.

A Troubling Pattern Of Behavior?

No doubt Franken’s detractors will argue that even if one or two accusations could be explained away as misunderstandings or accidents, it wasn’t just one accusation; it was a “troubling pattern of behavior.” Or as Vox’s Editorial Director Laura McGann wrote, “strikingly similar, and disturbing, conduct.”

It’s understandable why people would jump to that conclusion—because it’s easier to lump superficially similar accusations together than to research and think critically about each accusation. But closer examination reveals that Franken did not engage in any sinister “pattern” of behavior. In fact, the only pattern of behavior that emerges supports Franken.

What Is A Pattern?

Sure, there is a general pattern to the accusations against Franken in the sense that Franken was accused of doing or trying to do something inappropriate to a woman. But that’s not a pattern in the true sense of the word—in the way evidence of other crimes is admissible in court because it reveals the criminal’s modus operandi.

A real pattern is when someone does the same thing, in the same way, over and over again. Take serial arsonist John Orr. Part of Orr’s modus operandi was to set fires in retail stores during business hours using a delay device—matches, wrapped around a cigarette, surrounded by yellow notebook paper. Investigators realized they were dealing with a serial arsonist because the same elements were present for so many different fires.

Targeting retail stores during business hours? Matches, wrapped around a cigarette, wrapped in yellow notebook paper? That’s a pattern.

Harvey Weinstein telling young actresses he wanted to meet about a role, changing the meeting to his hotel room at the last minute, greeting the woman in a bath robe and asking for a massage? That’s a pattern.

Bill Cosby giving women a drink following by them waking up as he’s assaulting them? That’s a pattern.

Franken pretending to grope Tweeden while she’s asleep, touching a woman’s butt during a photo, squeezing another’s waist, and trying to greet a fellow politician with a kiss on the mouth in front of a large crowd? That’s not a pattern.

The Real Pattern Supports Franken

In fact, if you’re looking for a pattern based on Franken’s lifetime of interactions with women, the only one you’ll find supports Franken. Eight of Franken’s female staffers came to his defense and said that he “treated them with the utmost respect.” Thirty-six former Saturday Night Live staff members said that they never experienced any inappropriate behavior from Franken. Gillibrand, Kamala Harris, and others justified asking Franken to resign by saying, “I believe the women.” But what about the dozens of women who came to Franken’s defense? Why didn’t Gillibrand and Harris believe those women?

And let’s do the math on the “groping” photos. Before becoming a senator, Franken had already been a famous performer and author for decades. By even a conservative estimate, he posed for thousands of photos with women during his career. Out of those thousands, only three women came forward publicly with accusations. One said Franken touched her butt, another the side of her breast, and Dupuy said he squeezed her waist.

Even if the conduct alleged was intentional, that’s not a criminal’s modus operandi. It’s not even the same body parts. Three photos out of thousands is not a pattern; it’s the rate at which you might accidentally touch someone in the wrong place during a photo. The real pattern is the 99.9 percent of the time Franken took uneventful photos with women.

And this whole pattern element is the key—it’s everything. None of the accusations against Franken, on its own, was bad enough to justify Franken losing his job. It was the sheer number of accusations against Franken—during the peak of #MeToo—that sealed his fate. Each accusation made the others seem more credible. People could say things like “Eight women have come forward. We cannot afford to wait for a ninth!” And who was going to argue with that?

The “pattern of troubling behavior” is what brought Al Franken down. But the pattern was bullshit.

Did Getting Rid Of Franken Help Democrats?

“So what,” you might say. Even if Franken was pushed out unfairly, getting rid of him was still a smart move politically. Matthew Yglesias wrote that Democrats established an important principle in forcing Franken out, and that not having Franken around was helpful during Brett Kavanaugh’s confirmation hearing. Others contend that ousting Franken is why Doug Jones defeated Roy Moore for Alabama’s senate seat. As McGann said, “It worked. Franken left. Jones won.”

But none of those arguments stands up to scrutiny. Regarding Doug Jones, McGann is committing a logical fallacy I used to teach LSAT students known as cause and effect. Just because Event B followed Event A doesn’t mean Event A caused Event B. Just because you did a rain dance and then it rained, doesn’t mean you actually caused the downpour. There is simply no way to know what impact Franken’s resignation had on the Alabama senate race. In all likelihood, it didn’t sway the election.

In Brett Kavanaugh’s case, Democrats don’t even have a victory to claim. The inquiry into Kavanaugh’s alleged sexual misconduct may have been less complicated with Franken gone, but Kavanaugh was ultimately confirmed anyway. And just because ousting Franken spared Democrats some difficult conversations doesn’t make it right.

Lastly, Yglesias argued that by getting rid of Franken, Democrats established “the principle that bad acts should be punished, even when it is inconvenient.” But for bad acts to be punished, we must first be certain that bad acts occurred. In Franken’s case we lack that certainty because the accusations against him were never investigated. Therefore, any punishment was premature. Rather than creating a helpful principle by being deliberate, thoughtful, and thorough, Democrats set an alarming one by being capricious and hasty.

So, while some argue that Democrats were savvy to feed Franken to the wolves, there is little evidence to substantiate that claim. More importantly, Gillibrand and her followers left Franken’s constituents out of the equation entirely, deciding that they knew better than a majority of Minnesotans, who did not think Franken should step down.

What I Think Really Happened To Al Franken

If pushing Franken out the door wasn’t morally justified or politically savvy, what was it? I think it was a combination of a conservative led attack on Franken, terrible timing, and well-intentioned but poor judgment from some senators who got caught up in the peak of #MeToo.

I think what really happened is that during a USO tour, Franken took a dumb photo with Leeann Tweeden, and then mistakenly thought Tweeden was on board with a kiss during a sketch rehearsal when she wasn’t. I doubt Tweeden thought much of it at the time, but when she—a repeat guest on Sean Hannity’s show and Fox employee—mentioned the incidents, conservative operatives saw a golden opportunity (read more here if interested). They persuaded Tweeden to come forward as Republicans were getting hammered for allegations of sexual misconduct against Donald Trump and Roy Moore.

Those operatives helped publicize Tweeden’s story and convinced a couple other conservative women who Franken may have touched in a sensitive area during photos ops, possibly by accident, to come forward or at least make anonymous accusations. Then a few other women came forward of their own accord with accusations that, as described above, could be truly inappropriate, but could also be misunderstandings. Without an investigation, we’ll never know for sure.

To be clear, I don’t fault Franken’s accusers for coming forward. Women or men who believe they were sexually assaulted and want to come forward should feel comfortable doing so. Their accusations should be taken seriously. But taking accusations seriously should not mean assuming every accusation is true and unambiguous, reaching a conclusion, and punishing the accused before an appropriate investigation.

In a different time, the accusations against Franken almost certainly would have received a more measured response. But at the peak of #MeToo, with an upcoming election against Roy Moore, Senate Democrats got carried away, let emotion and political gamesmanship prevail over cooler heads, and asked Franken to resign. He did it, not because he knew he was a sexual predator, but because he was a good soldier.

Since then, some of Gillibrand’s colleagues have admitted their mistake and stated that Franken should not have been forced to leave. Gillibrand though, stands by her decision, either because she genuinely doesn’t appreciate the complexity of the situation, or more likely, because she doesn’t stand to gain much by acknowledging it.

In the long run, the move may pay off for Democrats from a political standpoint as they try to distinguish themselves from Republicans. But what happened to Franken was an injustice. Over time, I think his story will become the primary example of when #MeToo got it wrong.