scratched the surface’
Twitter trial? Fear of public shame can’t silence victims
Critics have raised concerns that #MeToo has turned into a “trial by Twitter”, suggesting it has turned the legal principle of innocent until proven guilty on its head.
But such comments reveal an ignorance of the meaning and context of this principle. Leaving aside the fact some people on social media side with the accused, public discussion — whether it takes place on Twitter or around a water cooler — is not comparable to state punishment.
Those concerned about the failure of a legal principle in relation to #MeToo might better focus on that of justice for victims.
Broadly speaking, there are three core elements to #MeToo.
First, the sheer volume of disclosures highlights that sexual harassment and abuse are unacceptably widespread — and that institutions and society at large are failing to protect and support victims.
Then there is the practice of using the hashtag to challenge the stigma and shame that has somehow accompanied identifying as a victim.
Finally, some disclosures on Twitter have sought to name and shame perpetrators of abuse in order to seek accountability and justice.
Only this third element plausibly raises concerns around “trial by Twitter”.
So, before delving into the problematic subtext of these comments, I’m going to play devil’s advocate and consider whether these public accusations conflict with the presumption of innocence.
The presumption of innocence is enshrined in Article 14.2 of the International Covenant on Civil and Political Rights. It states simply that: “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.”
There’s a related right to: “A fair and public hearing by a competent, independent and impartial tribunal established by law.”
In relation to the public accusations levelled on #MeToo, this means if someone is charged with a criminal offence, the system would have to be set up to avoid any predetermination of guilt based on what has been written in the public domain.
This is hardly a new challenge for the judicial system and the court is empowered to impose publication restrictions, to screen jury members, and even to move the location of a trial for this reason.
It is true public shaming by Twitter can exact tangible damage. We have legal protections in place for people’s reputation — the law of defamation. Given this risk of being sued for defamation, it is worth examining why victims are turning to social media.
The problem is the criminal justice system is particularly poor at achieving its outcomes — protection, punishment, deterrence, rehabilitation — for sexual harassment and assault. There is also the fact that for many victims the system is alienating and retraumatising. Not only is their character and behaviour often placed on trial, but victims are often silenced by the justice system and denied the opportunity to shape the narrative of their own experience of assault.
This is the key reason for #MeToo. It seeks an end to the culture of impunity around sexual harassment and assault, and to demand victims be given a voice.
The #MeToo movement is a symptom of the fundamental failure of our justice system to protect victims. It might be uncomfortable, but it doesn’t make it wrong.