In the wake of We­in­stein, due process is still needed. Kay,

POST-WE­IN­STEIN, WE MUST RE­FORM DUE PROCESS, NOT ABAN­DON IT

National Post (Latest Edition) - - FRONT PAGE - Jonathan Kay

‘Cal l me ol d- f ashi o ned,” t weeted co­me­dian Kate Wil­lett over the week­end. “But I want a man who will pro­tect me like I’m the rep­u­ta­tion of a guy he’s never met.”

As of noon on Mon­day, that com­ment had 37,000 retweets and 162,000 likes. Not just be­cause it’s funny. But be­cause it per­fectly cap­tures the pre­vail­ing mood. In the wake of Har­vey We­in­stein’s dis­grace, preda­tory men around the world are be­ing outed for their sex crimes. And in many cases — We­in­stein’s in­cluded — the damn­ing ev­i­dence seems clear enough to sup­press the usual caveats about in­no­cent-till-proven-guilty.

Af­ter re­cently be­ing ac­cused of sex­ual mis­con­duct by sev­eral women, ac­tor Jeremy Piven de­nied the claims, and then went fur­ther: “We seem to be en­ter­ing dark times — al­le­ga­tions are be­ing printed as facts, and lives are be­ing put in jeop­ardy with­out a hear­ing, due process, or ev­i­dence. I hope we can give peo­ple the ben­e­fit of doubt be­fore we rush to judg­ment.”

Un­for­tu­nately for Piven, pub­lic opin­ion isn’t fol­low­ing the dic­tates of due process. This is an age when a sin­gle ca­reer can be de­stroyed with a tweet. Some peo­ple have no qualms with that. His­tor­i­cally, the prin­ci­ples of crim­i­nal pro­ce­dure haven’t done much for sex­ual as­sault vic­tims. In the We­in­stein case, for in­stance, many are ask­ing why au­thor­i­ties backed off pros­e­cu­tion in 2015, even once they’d se­cured a damn­ing record­ing of a phone call be­tween the movie pro­ducer and an Ital­ian model in a New York ho­tel.

I can also see why ap­peals to due process may ring hol­low to girls and women who’ve spent their whole lives know­ing that their so­cial stand­ing could be de­stroyed by un­sub­stan­ti­ated gos­sip about their sex lives. Slut- sham­ing and re­venge porn are com­mon tac­tics for tear­ing girls and women down. These tac­tics are not sub­ject to ap­pel­late pro­ce­dures. Seen from this per­spec­tive, any fo­cus on due process in the post-We­in­stein era can seem like an ex­er­cise in male self-in­ter­est.

But even­tu­ally, we need to have a rea­soned dis­cus­sion about the base­line “ben­e­fit of the doubt” ( to use Piven’s phrase) owed to those ac­cused of sex­ual as­sault or ha­rass­ment. The cur­rent ap­proach of trial-by-me­dia isn’t just dif­fi­cult for men. It can dis­tort the way we treat their ac­cusers, too.

One prob­lem with the sta­tus quo is that it is of­ten based on noth­ing more than crude arith­metic. Ge­orge Takei is con­tin­u­ing an Aus­tralian speak­ing tour this week, de­spite an ac­cu­sa­tion that he mo­lested a younger man in 1981. He has plausi ble de­ni­a­bil­ity be­cause there is only one ac­cuser. The same is the case, so far, with Mad Men cre­ator Matthew Weiner, and Shark Tank star Robert Her­javec. Piven is in a more ten­u­ous po­si­tion be­cause there are three ac­cusers. GOP se­nate nom­i­nee Roy Moore looked like he had a fight­ing chance at dis­cred­it­ing the ac­cu­sa­tions of the women who’d said he preyed on them when they were in their mid­teens— un­til their num­bers swelled to five. Ben­jamin Genoc­chio was re­moved as ex­ec­u­tive di­rec­tor of the pres­ti­gious Ar­mory Show art fair af­ter five women told The New York Times of un­wel­come touch­ing. Like Bill Cosby, We­in­stein has no hope of re­demp­tion, what­ever hap­pens in court, be­cause his ac­cusers num­ber in the dozens.

We all seem to have adopted an un­spo­ken con­sen­sus that once the num­ber of women ac­cus­ing a man of sex­ual mis­con­duct passes some thresh­old — five seems like a magic num­ber — the pos­si­bil­ity of in­no­cence is treated as van­ish­ingly neg­li­gi­ble. But this is prob­lem­atic, be­cause such cut- offs are ar­bi­trary. And in some cases, col­lab­o­ra­tive pile- ons can even com­pro­mise the case against the ac­cused. In the Ghome­shi trial, for in­stance, the fact that the ac­cusers had ex­changed Face­book mes­sages about their ex­pe­ri­ences be­fore the trial un­der­mined the pros­e­cu­tion’s case against Ghome­shi.

The other prob­lem is that a sys­tem based on un­struc­tured call­outs is al­ways go­ing to priv­i­lege sto­ries about wealthy and in­flu­en­tial vic­tims over sto­ries about the far more nu­mer­ous vic­tims who suf­fer anony­mously be­cause they don’t have friends in the me­dia or mil­lions of fol­low­ers on Twit­ter.

Last week, it was re­ported that lux­ury- ho­tel mag­nate An­dré Balazs has been ac­cused by nu­mer­ous women of grab­bing their crotches. But it seems un­likely these al­le­ga­tions would have been made pub­lic if one of his al­leged vic­tims hadn’t been ac­tress Amanda Anka. Com­pare the Balazs- Anka case with that of “Bishop” Wayne Jones, the 57-year-old leader of Toronto’s Trinida­dian-based United Spir­i­tual Bap­tist Church. Jones likes to sleep with his con­gre­gants, and has even ac­cepted sex in lieu of pay­ment when he per­forms ex­or­cisms or other re­li­gious ser­vices. Jones says this whole ar­range­ment was con­sen­sual, but nu­mer­ous women say it wasn’t. These al­leged rapes have been go­ing on for years — and seem to com­prise a far worse scan­dal than Jian Ghome­shi’s run at the CBC. Yet few know about Jones — be­cause his al­leged vic­tims aren’t movie or TV stars, but poor, work­ing- class black women with lit­tle ac­cess to in­flu­en­tial jour­nal­ists.

As Robyn Doolit­tle of the Globe and Mail and oth­ers have shown, our crim­i­nal jus­tice sys­tem has let down vic­tims of sex­ual as­sault and ha­rass­ment re­peat­edly. And since the Ghome­shi scan­dal broke, there has been a move­ment afoot to re­form the way po­lice and jus­tice of­fi­cials re­ceive com­plaints, in­ter­view vic­tims, and pros­e­cute cases in this area. But the prin­ci­ples that lie at the heart of the sys­tem— due process and the pre­sump­tion of in­no­cence— re­main vi­tal. And we have to find a way to in­cor­po­rate them into our treat­ment of sex­ual mis­con­duct in the post-We­in­stein era.

Per­haps the most promis­ing path is not to shrink the con­cept of due process, but rather to ex­pand it in ways that guar­an­tee women will have their con­cerns and ac­cu­sa­tions taken se­ri­ously when they are first raised, in­clud­ing at the cor­po­rate level.

Best prac­tices dic­tate that em­ploy­ees who feel vic­tim­ized by abu­sive be­hav­iour should be able to come for­ward to a hu­man re­sources di­rec­tor, or a di­rec­tor of op­er­a­tions, who is morally and pro­fes­sion­ally in­de­pen­dent of the pre­vail­ing power struc­ture. But that is of­ten not the case — es­pe­cially in small or am­a­teur­ishly run or­ga­ni­za­tions, where these of­fi­cers of­ten act as close con­fi­dantes to the CEO, and tend to treat abuse ac­cu­sa­tions as a PR prob­lem. It is a prob­lem that I have per­son­ally ob­served in my own in­dus­try.

In these sit­u­a­tions, em­ploy­ees who com­plain about sex­ual ha­rass­ment — or abu­sive be­hav­iour more gen­er­ally — are of­ten paid off and en­cour­aged to leave. De­pend­ing on the ju­ris­dic­tion, these pay­offs can come with non- dis­clo­sure pro­vi­sions that muz­zle the vic­tim. It’s dif­fi­cult for women to take the con­cept of due process se­ri­ously if the law for­bids them from warn­ing their ex­col­leagues of a rapist in their com­pany.

A cul­ture of due process has a lev­el­ling ef­fect, as­sign­ing the same rights and the same du­ties to one and all — in­clud­ing al­pha males — when it comes to base­line eth­i­cal obli­ga­tions. It’s our best hope not only for pro­tect­ing the un­justly ac­cused, but also for deal­ing swiftly and de­ci­sively with the true preda­tors who stalk our work­places.

CHRIS­TIAN PETERSEN / GETTY IMAGES FILES

Ac­tor Jeremy Piven is one of sev­eral celebri­ties re­cently ac­cused of sex­ual mis­con­duct.

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