To accuse is not proof of the truth

The flurry of accusations of sexual assault against Supreme Court nominee Brett Kavanaugh and the attendant surge in the past few days of the #MeToo and #WhyIDidntReport hashtags has resurfaced for me a topic I’ve wanted to discuss, and on this day I’m happy to say that it is a topic which has nothing to do, at least not directly, with the president we cannot shake from the headlines for even one stinking day.  (Today he had to suffer the indignity of having the United Nations General Assembly laugh at him; I admit I enjoyed that very much.)  I’ve had this thought in the past year or so as events have forced the issue of sexual violence against women into public discussion, which is for the good, but now I’m hearing a drumbeat more loudly, more certain and more forcefully stated: the belief that all right-thinking Americans must accept all accusations by women of sexual harassment or sexual assault or rape at face value, without exception and without the need of corroborating evidence.  I’ve got a problem with that.  Let me risk stirring up multiple hornet’s nests all at once.

I have no problem with the protesters who argue Black Lives Matter, because I think I understand what they mean.  They do not mean black lives matter more than white lives (or the lives of any other color), despite the counterargument from some mostly disingenuous people who are trying to diminish the BLM effort.  The protesters are trying to persuade their fellow Americans that despite our country’s clear history of treating black people as less than people—even writing it into our Constitution—an inequitable, ignorant, hateful behavior that continues today, they are appealing to our better angels to persuade us that black lives matter, too.  At least that’s how I understand it.

They’re not saying that white lives don’t matter; they’re not saying that white lives matter less than black lives.  They’re calling attention to the recent string of deaths of black people, mostly young black men, at the hands of law enforcement across the country, in questionable circumstances, to try to make us all see the unfairness which they recognize as part of their daily lives.  The protests grow out of their personal experience, and they’re arguing for a commitment on behalf of all of us to the American ideal of fair treatment for all.  That’s also what the athletes are saying when they demonstrate during the national anthem: they aren’t protesting the song, or the flag, or the military, or the country in general, despite what you hear from the president (listen instead to the many many veterans who acknowledge that the right to this protest is exactly the thing they went to war to protect).  The players are taking advantage of their position in the public eye at that moment to do the thoroughly American thing of exercising their freedom of speech.  We each of us is free to disagree with their methods if we choose.

Now, I’m not saying that women in America have been treated the same way that black people have been treated.  (To any commenters who would criticize me for saying just such a thing, I refer you now to the previous sentence where I say quite plainly that I am not saying that.)  But I think it’s clear that women have been, and still are, treated differently from men in American society—there’s a Constitution thing there, too, of course—and that today they are making another push on behalf of their equality as Americans.  Specifically, they are speaking up on the subject of how, historically and contemporaneously, they have been and still are the victims of sexual violence.

In a society devised primarily by men with laws written primarily by men, in a society in which women were not considered equal citizens to the men, it should not be surprising that the men in charge protected themselves from accusations of sexual assault by women.  We can be ashamed of it, but not surprised.  Women were treated as property, as live-in baby-makers and babysitters and household help, and as “things” to be used by a man for his pleasure.  The men of those times turned a deaf ear to any woman’s protest of mistreatment, knowing that the woman would not be taken seriously and that even if her complaint were believed, well, so what.  The women of the time came to know the likely result of speaking up, and so they didn’t.

In more modern times we like to think that we’ve become enlightened enough not to behave in that way toward women; recent examples abound that prove how wrong we have been to think that.  Even as women became more financially independent of the men in their lives and more able to sustain a public accusation, they knew that the default response of male-dominated society remained to disbelieve and to dismiss accusations, and to find ways to punish the accusers for having accused.

What is changing now—for the good, I believe—is that the public airing of accusations of sexual assault has caused the scales to fall from more men’s eyes, for us all to recognize that this is real and pervasive, and to feel at least a little sick to our stomachs that we’ve closed our eyes to this reality for so long and allowed the women in our lives to suffer.  We’re coming around, as a society, to having our default response to these accusations be to search for the truth rather than to dismiss the charge out of hand.  Yea, America!

What concerns me is those who are filled with the fervor of the rising tide of righteousness who go a step too far and treat any accusation of sexual assault as proof of the truth of the charge.  It’s the right response to take an accusation seriously, and to investigate as we do when any crime is alleged; but it’s not right to assess a guilty verdict and hand out punishment solely on the basis of an unproved accusation.

Some of the accusations of sexual assault against Brett Kavanaugh seem more believable than others; inasmuch as they are being made against a nominee for a seat on the Supreme Court of the United States, who proclaims his innocence of the charges, they deserve to be investigated to try to determine if they are true or false, and to learn what we can about the nominee in the process.  (BTW, Republicans on the Senate Judiciary Committee: that’s exactly what the FBI does; that’s what it’s there for…put it to work).   Let the system work; there is no reason to rush a vote on this nomination…well, no good reason, anyway.  The GOP proved quite clearly, thank you, when refusing to take any action at all on the nomination of Merrick Garland in 2016, that the Supreme Court can get along nicely with one seat vacant.

America’s growing recognition of the ways in which our country has not lived up to the lofty goals of our Founders, and our continuing efforts to make those wrongs right, must continue.  Reaching the ideals of equal treatment under the law and providing a level playing field for all Americans, of being the open and welcoming society of our dreams, will take longer than we would like it to but we’ve got to keep going, keep our eyes on the prize.  But we won’t get there by trashing our belief in innocence until proven otherwise.

Advertisements

You don’t need to be “deaf, dumb and blind” to be fair

Read this from Vox.com, this is very good.  It’s helped me think more clearly in considering whether there’s been a rush to judgment against men recently accused of sexual assault and harassment.

First, I’ll go out on a limb and say, I’m against sexual harassment and sexual assault.  I’m against men with professional or financial power using that power against women.  I believe the women who are making the accusations, especially when the men choose not to put up much of a defense and just disappear (anyone hear anything from Charlie Rose lately?); I do not reject the accusations just because they are being made by women, or because I believe that the men are somehow being treated unfairly.

I have wondered if there are cases in which the past has been turned on its head.  Used to be, a woman’s accusation of misconduct against her boss, for example, was dismissed out of hand as not being credible, and the justice system has long made it difficult for a woman to prosecute a case against her rapist…men in charge protecting other men lest they be the next to stand accused.  But since The New York Times and The New Yorker broke stories about movie producer Harvey Weinstein last year, the tide has turned and we’re told we must believe the woman.  #MeToo proponents and others argue that women who have been harassed or assaulted do not lie about it.  OK, I’m with you.  But are there women who were not harassed or assaulted who are lying, who are making false accusations?  In our newfound effort to correct past wrongs, are we being appropriately concerned about that possibility?

Dozens of power brokers have been the subject of allegations of abuse and sexual misconduct since Bill O’Reilly was ousted from Fox News in April 2017. And as more and more figures face consequences — financial, political, professional, and legal — for their bad behavior, one term that comes up over and over again is “due process,” referring to the legal concept enshrined in the Constitution.

Even President Donald Trump is in on it: In a tweet on Saturday, apparently prompted by the resignations of two of his aides, Rob Porter and David Sorensen following allegations of domestic abuse, the president lamented the number of “lives being shattered” by a “mere allegation” of misconduct. “Is there no such thing any longer as Due Process?” he asked, almost plaintively. But what does due process really mean today, now that people have begun to invoke it as a cultural concept?

I asked seven legal scholars and experts what due process is, with the understanding that in legal circles the question is essentially an existential one. Due process in court is one thing — in the court of public opinion, it is a much more fluid notion, entangling questions of what is fair, what is reasonable to believe, and what rings emotionally true.

The first of the seven, former federal judge Shira Scheindlin, makes a case that I find very clear and persuasive, clarifying that “due process” in a court of law is not the same as that which a reasonable man or woman should give to public accusations such as these:

The Fifth Amendment to the United States Constitution, provides, inter alia, that “No person shall be deprived of life, liberty or property without due process of law.” This legal standard means what is says. Certainly Rob Porter, and others who have been accused of sexual abuse or harassment, are not being deprived of their life or their liberty as a result of the allegations made against them. Property is a closer question in that some have lost their jobs — and the income resulting from that employment — as a result of accusations rather than proof in a court of law. Nonetheless, in most instances the question is not one of civil or criminal liability. Rather, the question is whether given the quality of the allegations, the person against whom the allegations have been made, should remain in the position of trust, confidence, and responsibility which he (and it usually is he) currently holds.

(snip)

But when a business, a government entity, or a voter must decide whether someone is fit for his position, the decision process is of necessity much less formal, quicker, and truncated. A judgment call must be made and it often must be made quickly. The due process of a court action is often a very complicated and lengthy affair, involving pre-trial discovery, witnesses, and a judicial proceeding. But given the stakes of loss of life or liberty that makes sense. In context, the accusations that cause a person to lose his job must be evaluated by the employer who must make a judgment call based on the strength of those allegations. There is nothing wrong with that. If the person removed from his position feels aggrieved he is welcome to bring a case in court in which he would have the burden of showing that he was wrongfully terminated. In that proceeding I have no doubt that the underlying accusations would be fully aired. That may be why so few — if any of the accused — have pursed this course.

Law professor and author Michael Meltsner of Northeastern University agrees that there is a distinction between due process as a legal concept as compared to a societal norm, and warns that raising that flag in these cases “can be an ideological screen behind which abusers or those defending them try to justify, deflect or delay condemnation.”  (He didn’t say it here but it made me think of President Trump, the credibly-accused, and self-confessed, harasser and assaulter of girls and women.)

What often gets lost in the wake of allegations of sexual abuse is that even the most flexible construct of due process focuses us on a struggle for fairness in the face of our human tendency to rush toward moral judgment. But just as importantly, due process isn’t deaf, dumb, and blind. It is essentially evidence-based, so where the facts have emerged — and we have a plethora of such examples now before us — no one need hesitate to pass judgment. At the same time, due process suggests being wary of broadsides that read all accusations identically. Human behavior, especially where sex, gender and power are concerned is often hard to fathom. Because one size rarely fits all, we are constantly challenged to name, call out, and demand action while at the same time accepting nuance and complexity. If this suggests closing your Twitter account, so be it.