In the wake of Weinstein, due process is still needed.
POST-WEINSTEIN, WE MUST REFORM DUE PROCESS, NOT ABANDON IT
“C all me old-fashioned,” tweeted 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 plausible 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.
Actor Jeremy Piven is one of several celebrities recently accused of sexual misconduct.