Criminal Justice

Sexual Harassment and the Single Story

Sexual harassment allegations continue to dominate the news. I applaud the social movement to change our culture on this issue, but there is something in our national discourse that has been troubling me.

The individual tales of bad behavior are being merged into one story. There is no distinction between transgressions, whether they are isolated or part of a pattern, whether with adults or people under age, whether in a social setting or at work, whether a rebuff was followed by retaliation or not, whether it was decades ago or ongoing, whether the accusation has been carefully vetted or is just something someone posted on social media with a MeToo hashtag. All transgressions are equal, none can be examined deeply without accusations of victim blaming, and the only remedy on offer is firing the perpetrator and permanent ostracization.

The noted scholar Mary Beard wrote in the Times Literary Supplement that she is “conflicted” on the issue of public shamings.

When I say ‘conflicted’ I mean exactly that. Part of me feels that the majority of the allegations that have followed since the Harvey Weinstein cases are probably true, and — in the absence of any real likelihood of criminal prosecutions  (even in cases where that would be a technical possibility) — a bit of public naming and shaming might be the best way of changing the culture on this (and, as I said before, changing the culture in ordinary workplaces as much as in celebrity culture).

But another part of me feels that some of these allegations are probably not true (or at least there is another side to them) — and that no newspaper account is ever going to let us judge which those (albeit minority) cases are. And those innocents have no way  of putting their side of it (at least a legal trial allows you to do that).

In a recent article in Jezebel, Stassa Edwards argues against appeals to due process or any talk of redemption for the accused. She makes the case that such talk is an attempt to sweep the problem under the rug and to return to a comfortable status quo. Certainly such arguments can be, but they are not by definition, and we should not be so quick to dismiss the idea of giving the accused a fair hearing. We need to be especially careful precisely in cases where emotions and stakes are high.

Edwards argues against a New Yorker piece by Masha Gessen, who she quotes here:

“The affirmative-consent and preponderance-of-the-evidence regimes shift the burden of proof from the accuser to the accused, eliminating the presumption of innocence,” she writes, never pausing to consider that jail, suspension or expulsion from school, or job loss are hardly synonymous, or that their long-term repercussions are the same.

Indeed, jail and losing a job are not the same. But we should not be too quick to minimize the impact of social shaming, loss of career and personal identity.

Jon Ronson, who studied those who have been publicly shamed found that years later, the shamers had gone on with their lives and assumed the forgotten targets of their public shamings had too. They’d just lost a job, what’s the big deal? But, he reported, “…we want to think they’re fine, but they’re not fine. The people I met were mangled.”

So “only a job” is not a good excuse to abandon the presumption of innocence. If you were accused of something, you would want an opportunity to respond and be heard whether in court or in the court of public opinion– whether the stakes were jail or losing your job or simply a loss of face, wouldn’t you?

Are we not sophisticated enough to hold these two thoughts at once: that these offenses represent a serious, far-reaching, systemic problem and that we need to be fair to the people who are accused as well as the accusers?

Those who have, at some period in our lives, experienced unwanted sexual advances and want change, should be the most concerned with giving the accused a fair shake. Exaggerating and conflating undermine our own efforts by making us easy to dismiss. Every example of over-zealousness provides an excuse for someone to say the problem doesn’t really exist.

We are a culture that uses celebrities as symbols in our shared mythology, much as we once told tales of the gods. Politicians and film stars are a common point of reference to talk about our dreams, aspirations and values. So the celebrity who transgresses is shunned in order to demonstrate our cultural values. Symbolically, if Louis CK’s actions are forgivable, then so are your wretched boss’s, and therefore we cannot yield.

Nor do we welcome much nuance if it disturbs the important process of myth-making. If individual cases do not quite fit the pattern, they are sometimes made to. Let me give you an example. I believe Anthony Rapp’s accusation against Kevin Spacey. Spacey did not deny it. What upset people so much in that case was Rapp’s age– 14 at the time Spacey allegedly made a move on him.

Since then, many additional accounts of bad behavior have been levied against Spacey, but they have mostly been by adults, although you would be forgiven for not noticing that. To be clear here, I am passing judgment on the accusers or saying their statements are not truthful. I simply wish to make a point about how the various cases have been synthesized in the reporting to create a seamless narrative.

Consider this passage in a USA Today article on another Spacey accuser. I have edited it to remove the name and some identifying information of the accuser:

It was July in New York and [he] was just 27, in his first major job out of college [at a theater where] he was running the fledgling film program. He was in his office one day, phone in hand, when Spacey walked in and sat down at an empty desk.

 [He] knew who [Spacey] was. Then 22, Spacey was an up-and-coming actor, playing a minor role in Henry IV Part 1, according to records.

The narrator goes on to report that Spacey groped him and became angry when he was rebuffed.

The article goes on “… he was shocked, then freaked out. Would Spacey get him fired?”

I removed the accuser’s name because I do not want to make this about him or to make it appear I am trying to minimize his experience or call his story into question. That is not my point. Rather, I have some questions on how USA Today chose to relate his story.

If you scanned the article quickly, you’d be forgiven for not noticing a few things. The victim is described as being “just 27.” The word “just” emphasizes his youth, although 27 is an adult in anyone’s book.  Spacey’s age does not earn a “just” even though– take note– he was five years younger than the other man. Note also that Spacey is described as an “up-and-coming” actor. This makes him sound notable. This is in contrast to the language used to describe the 27-year-old’s job: his first out of college, a fledgling program.

Other language could have been used to describe an actor who was not-yet-famous and who had only managed to land a “minor role” in a Shakespeare production. You might go so far as to call him a “struggling actor.” In an interview years ago about his career at that time (ironically with Charlie Rose) Spacey said he couldn’t get work and was pleased to get a role as a “spear carrier” because he didn’t want to wait tables.

It is not clear whether the victim’s concerns about being fired were his own. They were not presented in the form of a direct quotation. Was this 27 year old, who ran the film program at the theater really worried that a 22 year-old, then-unknown actor in a minor (easy to recast) role would get him fired? Was that what was on his mind? Or did he simply describe behavior that he found weird and notably aggressive and the reporter speculated on his feelings? Perhaps the writer decided that a story of an awkward and unpleasant sexual advance between two co-workers (in which the person who made the advance arguably had lower status) did not fit the growing narrative of male abuses of power well enough.

These stories get reported under headlines saying that “a new accuser” has appeared.  Six out of ten people share news stories having only read the headline, which means most people will naturally assume that the stories that follow are more of the same even if there are important differences. To people who see headlines flashed across their newsfeeds, they are all Anthony Rapps.

A person does not have to be innocent to be a scapegoat. A scapegoat is someone who is made to carry the sins of others, to take on the burden of punishment to absolve an entire group. We use our celebrities this way, as symbols. We have always used them this way. They deserve it, we feel, because they courted fame in the first place. They get to be treated as small gods, and when they fall, they take on the sins of all who shared their transgressions.

But celebrities are just people. They should be held accountable for their actions in proportion to their severity, not in proportion to the severity of the social problem as a whole. Each accuser should be listened to and judged on the basis of her own story, not as a representative of the collective sufferings of women.

Edwards writes “what’s at issue here is civil rights—freedom from discrimination in the form of harassment because of gender or sex.”

She is right. Civil rights is the issue.

We can’t be champions of civil rights without having a concern for fair treatment of both the accused and the accuser.

Oscar Wilde and The Irony of Atonement

wilde-fansEngland feels really bad about what it did to Oscar Wilde.

I mentioned a couple of weeks ago that they just posthumously pardoned him, along with thousands of other gay men. The apologies continue at the National Portrait Gallery where portraits of Wilde and Lord Alfred Douglas are being displayed side by side to mark society’s change in attitudes. The Evening Standard reports that this is part of a show marking the decriminalisation of homosexuality in 1967.

We’ve come a long way since William Powell offered to paint Wilde out of his “A Private View at the Royal Academy” in the wake of Wilde’s trials.

There is a small irony, however, in using Wilde to celebrate the 1967 change in the law.
If Wilde had been tried under the Sexual Offences Act of 1967,  he would have received a five year sentence rather than the two year sentence he did under the LaBouchere Amendment. The law that decriminalized gay sex set the age of consent at 21 and almost all of Wilde’s partners mentioned in court were younger than that, the youngest being sixteen and seventeen. (In 1994, the age of homosexual consent was lowered to 18 and then, in 2000, to sixteen bringing it in line with the age of heterosexual consent.)

To paraphrase our president: Who knew that history was so complicated?

The Wrong Carlos

I have always had a great interest in stories of wrongful convictions. The judicial system presents one of the starkest examples of the power of narrative. In court two opposing sides use a handful of verifiable details to craft their own narratives explaining events. The more persuasive story wins and it becomes the officially sanctioned truth. The consequences of story-telling are never more pronounced, they can literally be a matter of life and death.

I recently read a book called The Wrong Carlos: Anatomy of a Wrongful Execution by James S. Liebman. It is the story of Carlos Deluna, whose “Some other guy named Carlos did it” murder defense seemed so absurd on its face that he was easily convicted and sent to his death for a crime… committed by some other guy named Carlos.

There was one particular detail in the story that stood out to me. The book quotes the Christian minister who accompanied DeLuna to the death chamber.

“My responsibility, according to the warden, was to be there in the Death House… when [the condemned prisoner] walked in. I was to be the face that he saw outside of the guards… [The warden’s] charge to me was, and these are his words, ‘to seduce their emotions so they won’t fight getting out of the cell or getting up on the table.'”