#MeToo v the presumption of innocence

12 Oct

I’ve written on this before; irreconcilable tensions between individual and social justice when it comes to sexual violence on women and its prosecution through the criminal justice system. These tensions come to the fore when the accused are celebrities and/or political figures, with some of us asking such questions as what did Harvey Weinstein do that Bill Clinton didn’t?

And now we’ve had the Kavaunagh circus, prompting a lengthy OffGuardian article today by Eric London: #MeToo versus the presumption of innocence

Being a Libran – not that we Librans believe in astrology – I see both sides of the matter, causing me to comment below the line with this:

Well this is a minefield. There were always dangers with #MeToo, in terms of dishonest allegations motivated venally or vindictively, and in terms of (neo-) liberal hijacking of the kind we’ve seen more generally in respect of identity politics. For instance the idea that HRC, whose decisions inflicted death and misery on millions – disproportionately brown skinned and, because they always bear the brunt of warfare, female – was less racist and sexist than DRT. Such distortion follows as night on day the removal of class and empire from the equation.

I recall having a drink with a woman friend when the Jimmy Savile scandal was hot news. Neither of us could stand the man but my friend said “we can expect a good few false accusations now”. She had a point: the irreconcilability here of social and individual justice. Who doubts that sexual offences on women, including rape, go underreported and under-convicted? But it’s not easy to see how conviction rates can rise without lowering evidential standards to bring consequent miscarriages of justice.

Eric London is right about the character damning aspect of publicly naming suspects. But this has to be balanced against the fact guilty men who’d thought themselves immune have been convicted. Why? Because women (and men abused as boys) came forward. When many victims who do not know one another give specific and strikingly similar accounts on the same man, the threshold of reasonable doubt has been crossed. I’m not negating the devastating effects on innocent lives of mischievous accusations and their publication; simply pointing out that this is a far from simple matter. Yes, the presumption of innocence is a vital aspect of fairness – Ask Bashar! Ask Vlad! – but let’s not be simplistic here.

Last point. There’s a big difference between the right of the defence to cross examine a rape victim, and the ‘right’ for such cross examination to be conducted by the accused rather than his counsel. Abuse of that right by guilty men, for further sexual or otherwise personal gratification, is a matter not of theoretical conjecture but of livid fact for women who report feeling “raped a second time” in the court room.

Anyone interested in the issues raised here might see my blog post of July 2016, Sex crime: can we ever get it right? Written in the wake of the Cliff Richard/BBC debacle, I’m far from satisfied with the lame conclusions I draw – but this is too complex for one-sided treatment.

In fact I quoted from that July 2016 post in a separate BTL comment on Eric London’s piece:

The 1992 trial of world heavyweight champ Mike Tyson highlights the problem here. Traits that made him a plausible rapist made him an equally plausible sting victim. As with most rape trials the issue was one of consent, so hard evidence barely featured. The prosecution told one story, the defence another, then the jury got to say which story it liked best. But Tyson, with thuggish past and record of savagery in the ring, was also a wealthy man. After the jury found, largely on the basis of her performance on the stand, that Desiree Washington had indeed been raped by Tyson, she sued him for millions. You see the problem …

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