In our communities, conflicts happen. It’s inevitable. How we deal with those conflicts generally determines what kind of community we’re going to have, and what kind of behaviors we’re going to see in the future.
People generally have a dim view of trying to place blame in social communities. Often, this is because blaming others is the first defense of scared, insecure people who refuse to accept responsibility for their own actions. So it’s a good idea to take a skeptical view of anyone trying to blame others for harm that they have caused.
Placing blame also tends to be looked down upon because it’s backward-looking, not forward-looking. If a situation can be diffused without going back and examining who did what to whom, why do it? Just move forward.
However, placing blame is important, because it’s the only way that we establish accountability. Accountability is a key component of consent culture. Accountability for our actions matters, because without accountability, we allow toxic behaviors in our communities. We allow missing stairs. We allow things that we would never knowingly allow, simply because we’re unwilling to put in the effort to effectively place blame. Accountability matters. If it is known that people in our communities will not be held accountable for their actions, people will take advantage of that. When something sufficiently bad has occurred in our communities, I think we all have a responsibility to place blame with the appropriate party(-ies). The amount of effort we’re willing to put into placing blame ought to be proportionate to the amount of harm done (or potentially done, if something is likely to produce greater harm the next time).
Accurately placing blame is also important, because if blame is put with the wrong party(-ies), we fail to encourage good behavior. Studies show that positive reinforcement is more effective at changing behavior than negative reinforcement. If we are unable to accurately place blame in a situation, we not only fail to hold people accountable for bad behavior, but we also fail to reward good behavior. Combine the two, and it raises the amount of bad behavior in our communities while lowering the amount of good behavior.
Establishing an environment where accountability is the norm also creates opportunities for growth, where people can acknowledge what they’ve done wrong and seek to correct it.:
when Consent Culture started, I noticed that kinksters, especially dominants, rarely discussed when they fucked up, when they miscalculated a tie, or misunderstood body language. People were so scared to be judged for fucking up, they became wildly defensive when it was suggested they might’ve, silencing those trying to start even the gentlest discussion about it. Slowly, as more people have come out and said “I’ve fucked up, and here’s what I’ve done to learn from it and apologize”, other people have felt safer doing the same. They know that it doesn’t even usually mean banishment from the community, but an opportunity for growth. I think the same can happen in activism, if we let it. And sure, there are some assholes who are in it to hurt people, and yeah, cutting them off makes sense, of course it does. Having a sustainable, kind, yet firm personal ownership expectation tends to expose those people pretty quickly.
Accurately placing blame in these circumstances is important, because it’s the only way to distinguish between people who behaved properly, people who made innocent mistakes, and people who knowingly did harm, and that’s a really important distinction to make.
How to Place Blame
As an litigation attorney, my job mostly consists of playing a part in a system whose goal is to fairly resolve disputes. The system has some deep flaws (generally caused by the human element), but in principle, it’s the best way I’ve ever heard of to resolve disputes and place blame. I feel that the legal system has many lessons to teach us about handling and resolving conflicts that we can apply in less formal social settings.
The legal system distinguishes between different classes of wrongs. The most common types of non-criminal legal wrongs are negligence, intentionally torts, breaches of contract, and strict liability. That last category doesn’t really apply in social communities, so I won’t be dealing with it here. The other three, however, have some concepts that are very useful for our social situations.
When judging a wrong, it’s critically important to distinguish between (a) contested facts, (b) uncontested facts, and (c) disputes over what the rules are. Most cases involve a mix of all three. In court, judges decide disputes over what the law requires, the parties themselves resolve which facts are uncontested, and the factfinder (typically a jury) will determine the truth of contested facts.
The first step in resolving any dispute involves separating out the elements of a dispute. Is this a situation where people are disagreeing about what happened? What does each side say? At this stage, try to avoid acting as a factfinder, and think of yourself more as a judge. You’re not evaluating who is telling the truth. You’re just sorting out which facts are uncontested and which are not. This generally involves talking to people and getting both sides of the story. This can also involve reviewing any documentary evidence, photos, videos, chat logs, etc., if either party wishes to share them.
Also, at this stage, it’s important to get each side’s opinion about what the rules are (unspoken and implied as they generally are in social situations). Do both sides agree about what is the right and wrong thing to do in the situation? Why or why not? This is ultimately a question that you have to decide for yourself, but it’s important to get each side’s perspective before making up your mind. This is a critical step that people often miss. It’s tempting to look at the harm caused by a conflict and think that any action that caused harm is obviously wrong.
At this point, you can sometimes make up your mind just based on uncontested facts. Once you’ve decided on the rules in a situation, go back and look at the uncontested facts. Has either party admitted to all elements of wrongdoing (see below)? Is there anything left to fight about? Do you even need to determine which party is telling the truth?
If you’ve made up your mind about what the rules are, but there is a dispute over important facts, only then is it time to engage in a credibility determination. This sort of thing should only be done when absolutely necessary, because no matter how good your lie detection skills are, it’s the least reliable part of the process. There is a nontrivial chance that you will be wrong, so it’s best to focus on undisputed facts whenever possible. However, sometimes somebody really is lying, and it’s up to you to decide who you trust.
In a civil dispute, the legal system generally imposes a “preponderance of the evidence” burden of proof on the complaining party. That means that the party claiming to have been wronged has the obligation to produce evidence (even if it is just their own testimony) sufficient to create a greater-than-even chance that they’ve been wronged. A party failing to produce such evidence will have their complaint dismissed. Then, once the defendant has made their case, the plaintiff’s evidence must outweigh the defendant’s evidence in order for the defendant to be found liable. In general, this is a good standard for social setting too, though there are also defensible arguments for imposing a higher standard of proof for credibility determinations, since those are so often unreliable.
In the legal system, these are things like battery (intentionally hitting someone), false imprisonment, trespass, conversion (stealing), and similar offenses. In a social settings, intentional wrongs could be things like intentionally violating people’s boundaries, using hurtful or abusive language, any sort of threats or violence, or using people’s stuff without permission.
The elements of proving an intentional wrong are simple: (1) that the offender actually committed the act in question; (2) that the offender’s action was intentional; (3) that the actions caused the harm in question; and (4) actual harm. Defenses to intentional wrongs (useful in both legal and social settings) are things like consent, necessity (i.e., I grabbed your book to block a baseball coming at my head), defense of self or others, and defense of property.
So in order to hold someone accountable for an intentional wrong, the evidence must show that the person’s actions were intentional, that they committed an action or omission which was wrong, and that their wrongdoing caused actual harm to someone.
Causation is generally split into two questions – causation-in-fact and proximate causation. Causation-in-fact is easier. An action caused a result if, but for that action, the result would not have occurred. Proximate causation is trickier. For proximate causation, we ask if the effect flows sufficiently directly from the cause for it to be fairly said to be the actual cause. For instance, your car accident as a 25yo was caused-in-fact by your mother giving birth to you. However, that cause is remote enough that nobody would say that she is responsible for the harm done by virtue only of that fact. So generally, you have to be able to trace a direct line from wrongful act to harm done in order to hold someone accountable.
Disputes over intentional wrongs generally break down into factual disagreements or questions about causation. Most people agree that we shouldn’t intentionally harm one another. There can be disagreement at the margins, but we mostly tend to agree on the types of things that are harmful.
Negligence is an umbrella term to describe harm that a person caused by accident, but for which we will still hold them accountable. In the legal system, negligence has four elements: (1) the existence of a duty to act or refrain from acting; (2) breach of that duty; (3) causation; and (4) actual harm.
In social conflicts, there are often big disagreements about the first element – the existence of a duty. Just how careful are people expected to be? What harms are we expected to guard against? What actions are appropriate in the setting? Whose responsibility is it to make sure no harm is done? Bear in mind that any such rules must be objective – that is, they must apply to everyone equally. If you impose a standard of behavior on one person, it has to be equally imposed on every person.
Traditional social etiquette rules are deeply flawed, and are often premised on the idea that honesty and direct communication are impolite. They also show very little respect for consent culture, often favoring compulsory interaction over enthusiastic consent. Because of this, there can be wide divergence in views over the appropriate way to behave in our communities. Ultimately, it’s up to each individual to decide their own ethics, but groups often develop their own culture, with their own spoken or unspoken rules.
One of the most important concepts in the determination of a duty is foreseeability. Was it foreseeable that the harm caused would result from a breach of the duty sought to be imposed? If the specific harm is not foreseeable, there is generally no duty to guard against it. This is related to proximate causation (see above).
Once you’ve determined the existence of a duty to act or refrain from acting, the next element to determine is that the accused breached that duty. This is generally a factual question – did X do the thing? This is a question for you to answer when you’re wearing your factfinder hat. Causation and harm work the same way as they do with intentional wrongs, so that analysis is the same.
So to hold someone accountable for harm that they did not intend, you should have evidence that they had an ethical duty or act or refrain from acting, that they breached that duty, and that the breach caused harm.
There is also a legal concept called comparative negligence, whereby a factfinder can divide up responsibility by holding each party partly responsible. For instance, I could be 80% liable, but you’re 20% responsible for your injury. It’s a newer concept in the law, but a useful one, especially in social situations. It’s also dangerous, however, because there is almost always an impulse to assign culpability to both parties in a dispute, regardless of the facts. In order to hold either party responsible, even a fraction, you must establish all of the elements of negligence – an ethical duty, a breach of that duty, causation, and damages.
Breach of Contract
Breach of contract occurs in the legal sense when someone violates the terms of an agreement. The same thing can happen in the social context. I try to make as few agreements as possible, but sometimes agreements need to be made. The elements of a breach of contract claim are (1) the existence of a contract; (2) a material breach; and (3) harm done.
A contract generally consists of an offer, an acceptance, and mutual benefit (known as “consideration”). The requirement for consideration means that if an agreement did not actually benefit both parties (i.e. “I agree to pay you $1 tomorrow for nothing”), it is not enforceable. However, there is a concept called “promissory estoppel” which states that if I act in reasonable reliance upon a promise you’ve made, even without consideration, you are liable for any damages I suffer because of that reliance.
Defenses to a breach of contract include that the agreement was vague or capable of multiple interpretations, that both parties were mistaken about something material to the agreement, that one or both parties lacked capacity to consent, fraud, and unconscionability.
A breach of contract is material if the breach goes to the heart of the contract. This is a squishy term, in law and in social circumstances, but the general idea is that the breach must be big enough that it frustrates the purpose of making the contract in the first place. People are not liable for small or technical violations of the terms of a contract.
Damages in a breach of contract action are not quite the same as the previous actions. When parties make a contract, each has the right to expect that the contract will be fulfilled. A party is damaged by anything that puts them worse off than they would have been had the contract been fulfilled.
To hold someone accountable for a breach of contract, the evidence should show that a contract existed, that a material breach of the terms occurred, and that such breach negatively affected one party.
In general, when someone is liable for an action, they are responsible for compensating the person that’s been harmed for all harm done. In law, this generally consists of money damages. In social situations, compensation can take many forms. Sometimes an apology is all that’s necessary. Sometimes the harm is so great that a person needs to be removed from a social group. Sometimes it’s between those two, and it’s up to the wronged party to determine what would make it up to them.
Wronged parties generally have a duty to mitigate their damages. This is related to proximate causation. When a party has been wronged, the wrongdoer is responsible only for the harm directly caused. If the wronged party, through poor decision-making or neglect, exacerbates the harm, the wrongdoer is not responsible for the total harm caused, only the harm caused directly. For instance, if I agree to drive you somewhere, and then back out, I’m responsible for the annoyance and inconvenience you suffer by having to arrange another ride or take public transit. However, I’m not responsible for you missing an event if you could have gotten there by other means and simply failed to do so.
Juries will also sometimes impose punitive damages, which are penalties intended to punish the offender rather than compensate the victim. Punitive damages are appropriate in situations where the offender’s actions had the potential to cause great harm, but through luck or the actions of other parties, such harm was averted. Punitive damages are also imposed when we want to especially discourage the offender’s behavior, regardless of the amount of harm it caused. Punitive damages in court are always money damages, but in a social situation, they can be anything from social ostracization to helping with the bake sale. Punitive actions are meant to deter future behavior, so they should only be imposed with that goal in mind.
How to Prevent Conflicts
The goal of any system of accountability in a social group is to encourage good behavior and discourage bad behavior. The process I’ve outlined above is an attempt to adapt the concepts that form the foundation of our legal system to a system of social accountability. Our legal system, for all of its flaws, is based on solid ideas, and I think emulating its best practices is the best way to establish accountability in our social groups. With that in mind, this section discusses the ways to best implement such a system to be most effective.
1. Have Reasonable, Well-Defined, and Empowering Ethical Rules
One of the primary things that I do on this blog is discuss how I feel people should ethically behave in social & romantic interactions. I do this a lot in my personal life also. I try to be as clear as possible, and draw bright lines between acceptable and unacceptable behavior. Consequently, people tend to know what kind of behavior I expect from them and what behavior they can expect from me, and we can talk about any disagreements before there’s a violation of anyone’s ethical code. The closer the relationship, the more I talk about it. I encourage everyone to be open about what they consider good behavior with their social networks. Talking about this sort of thing is the first step in establishing an ethical environment. If you talk about it enough, you can form a community that has a pretty clear idea about what is ethical and what isn’t. The legal system uses common law (i.e. previously decided cases) for this, but hopefully your social group won’t have enough conflict to rely on the outcome of prior conflicts, so talking about the group’s ethics is important. Clearly communicating your ethical rules will prevent conflicts down the road, and it will also tend to chase off people who want to behave in ways inconsistent with the group’s ethics.
That last part–chasing people off–can be a blessing or a curse, depending on the quality of your ethical code. A good ethical code will only scare off jerks. Too many flaws, however, will scare off quality people whose influence may have improved the ethics of the group. For this reason, I recommend having as few hard-and-fast rules as possible. Your ethical rules should be the things that form the core of your ethics, and you should have a high degree of certainty that these things are necessary for your (and others’) well-being.
Individual groups are free to decide their own ethics. There isn’t yet an ethical system that is universally applicable and logically unassailable, so I tend to give groups great latitude in deciding their own ethical rules. However, any system that I willingly sign onto will be based on a foundation of consent. The ethical rules will be designed to allow for maximum individual freedom while respecting other people’s boundaries. Ethics rules will be designed to encourage direct communication and honesty, because consent isn’t valid if it isn’t informed, and boundary violations can’t be prevented if boundaries aren’t communicated. They will have maximum collective well-being in mind, but all default prohibitions will have an exception for situations in which all affected parties consent.
Having well-defined ethical rules can be the most difficult part of establishing a system of accountability for yourself. Often, things just feel wrong, and we can’t articulate why. Failing to have clear, well-thought-out rules is what leads us to blame victims instead of perpetrators for causing drama. Unless we examine those feelings, we can end up relying on prejudices and assumptions instead of reason. If you can’t frame your criticism in terms of “people in situation X should do/not do Y,” then your criticism probably needs more work.
2. Reward Good Behavior
One of the major flaws of our legal system is that it is entirely geared toward preventing bad behavior. There is no method by which to reward good behavior, even though positive reinforcement is generally more effective than negative. Don’t make this mistake in your social group. In fact, I would argue that the bulk of your effort should be directed toward rewarding positive behaviors like open communication, taking extra care to respect others’ boundaries, and being honest even when it’s difficult. Rewards don’t have to be formal or material. Often, just saying “thank you” will be sufficient.
With rewards, remember that the goal is to reward the person who did the good behavior, not to feed your own ego. Sometimes, an attempted reward will be rejected, and that’s ok. It’s sometimes hard to know what people want, so if you offer something intended as a reward, and it’s unwanted, don’t sweat it. It’s not about you.
3. Make Punishments Swift and Certain
Studies done on high-risk probationers show that the most effective punishments are “swift and certain” – that is, offenders are confident that any violation with be punished, and it will be punished immediately. So long as a punishment is swift and certain, the punishment can be mild and still be extremely effective. In fact, some studies have shown that mild punishments are more effective than severe punishments.
Mild punishments in a social setting can be something simple like a verbal reprimand, made either privately or publicly as circumstances warrant. Because more severe punishments aren’t more effective, there is no need to have any punishment more severe than that. So long as an offender adequately compensates their victims (see above), there is generally no need for additional punishment. The only exception is kicking someone out of your social circle, but that’s a step that shouldn’t be taken with the purpose of encouraging good behavior. That’s a step that should only be taken to protect yourself and/or the other group members.
With punishments, it’s also important to remember that unless the other person has consented, you have no right to impose punishments on them that go beyond your own behavior. You have the right to tell them that they are wrong, and to say so publicly. You have the right to cut off contact. But you don’t have the right to coerce them into doing anything that they don’t want to do, even if you feel the punishment would be appropriate. Consent is still important when someone has done wrong, so any punishment you impose should respect that.
4. Make the Effort
As I said at the beginning, when there is a well-thought-out system of accountability in place, conflicts are reduced. The #1 reason this doesn’t happen in most social situations is that most people aren’t willing to put in the effort. Getting both sides of the story takes effort. If necessary, deciding who to believe takes effort. Thinking about what behaviors warrant encouragement or punishment takes effort.
It also takes effort for things not to backfire. When third parties get involved in a conflict, they can often make things worse if they don’t do a good job of it. Many people have the experience of getting involved in a half-assed, non-systematic way, and having no effect, or even escalating the conflict. This leaves people believing that this is an inevitable result of trying to establish any kind of accountability for the behavior of third parties. Only by putting in the required amount of effort to gather information, analyze the situation, and make a reasonable determination can a worthwhile system be maintained.
Who Should Place Blame?
You should. Yes, you. In our legal system, we have judges, juries, and a whole branch of government to decide matters of blame and accountability. In our social lives, we don’t have that luxury. Large, formal groups will sometimes have a system in place for providing accountability. The rest of us must take that responsibility on for ourselves. If you don’t, it’s likely that nobody will. Start with holding yourself accountable for your actions, but don’t be afraid to hold others accountable when they have behaved badly (or exceptionally well).
You may only need to do this with your closest friends. Others may feel the need to help provide accountability for larger groups. It’s up to you how widely to define your social circle, and how much effort you are willing to put in to help ensure the quality of that group. The closer someone is to you, the more important that you have accountability between each other, so start close. If you’re able and willing to make the effort, branch out from there to other friends and social contacts.
Accountability is an important part of any functioning social group. We all have a responsibility to ensure that our groups can effectively place blame when there is a conflict. The outline I’ve made here is terribly simplistic, and is merely a skeleton of what a functioning ethical system looks like. However, I feel that having such a system, even if it exists on an individual level, is critically important to having a functional social life. Hopefully, the concepts I’ve discussed here are helpful with that goal.