In October 2017, actress Alyssa Milano unleashed a cultural tsunami when she tweeted an invitation for women across the world to share their stories of sexual harassment and assault. Tens of millions of tweets later, the #MeToo movement has had an impact at all levels of society, and signaled a huge shift in the past attitudes surrounding sexual assault and responsibility.
To say that the impact of #MeToo has been complicated would be an understatement. In some high profile cases such as Harvey Weinstein and Bill Cosby, accusations were vetted in the criminal justice system. There was discovery, testimony from the accused, cross-examination, and defense evidence that resulted in findings of guilt beyond a reasonable doubt. But those situations have been the exception. Most high profile accusations are instead being litigated in the quasi-court of public opinion. Now Joe Biden finds himself taking his turn after a former staffer accused him of sexually assaulting her 27 years ago. Editorials published in the New York Times and Washington Post among others have argued that Democrats should already be planning to kick Biden to the curb as their nominee. One can only hope that Biden's team crafts a better way to navigate this crisis than Brett Kavanaugh's approach.
We know that historically women have been blamed for many sex crimes committed against them. We share in the belief that bullshit like “she shouldn’t have been there at that time of night” or “why was she dressed like that” should be permanently cast into the garbage heap of outdated ideas. But, (here comes the but)... While the #MeToo movement should be commended for raising awareness of the prevalence of sexual assault, there is a very legitimate concern that innocent people are getting steamrolled in the process.
Some of you may be saying to yourselves “But due process rights don’t apply in the court of public opinion.” Some of you might argue that, for hundreds of years, women were shamed for rape while male aggressors paid no price. The #MeToo movement is simply a necessary correction to a skewed power dynamic that has favored men over their victims for hundreds of years. Some of you might even be onboard with #BelieveWomen and say that allegations of sexual harassment or sexual assault should always be taken at face value.
As criminal defense attorneys who have represented people thrown in jail on false accusations of sexual assault, we find that approach to be terrifying. Nobody is entitled to being believed and gender has nothing to do with credibility. We’ve seen clients who were locked in cages and had their lives destroyed based on stories that dissolved into wet mush once exposed to the slightest scrutiny. The simple fact is that accusers should be entitled to an opportunity to be heard and taken seriously. Nothing more and nothing less.
It’s true that as a legal matter, due process rights are only triggered when the government is involved. So yes, persecution/prosecution by social media mob is a different animal. But just because there are no rules in the court of public opinion doesn’t mean that we shouldn’t honor basic principles such as the presumption of innocence, a thorough evaluation of credibility, and a demand for evidence. Destroying an innocent person's reputation isn’t as bad as putting them in jail, but it’s still awful. Sometimes, rumors are worse than a trial, because no one ever knows for sure. A good witch hunt ensures that a person accused of the crime will pay a high price regardless of the outcome. Once the accusation is made, the damage is done.
It's hard enough for trained professional lawyers to try sexual assault cases in courts of law. So how do we even begin to form a functioning #Metoo Public Opinion Court? The true story of any alleged sexual assault accusation is often difficult to untangle. There’s what she said, what he said, what everyone else there said, each person’s mental stability, and sometimes years and even decades between the event and the accusation.
We have a choice to make as a society. Do we blindly believe accusers because it’s the super-woke thing to do at the moment or do we honor principles developed over hundreds of years to protect innocent people from being destroyed by mere accusation. #MeToo exposed pervasive abuses of power and gave many victims the courage to come forward. That’s a great thing. But an accusation doesn’t equal guilt and not all accusers are equally credible. Unfortunately many people don’t find an appreciation for due process until they find themselves or someone they support on the wrong side of the finger of accusation.
Blind belief in strangers is a recipe for disaster. It’s on us as a society to find a better path forward. It's certainly not easy, but we must strive to create a climate of respect and accountability where anyone with a legitimate claim can feel free to come forward; where mob rule has no place; and where due process principles are honored.