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My Thoughts on Recent Rape Apologetics in Social Media – Part I

A number of people have approached me about writing a longer piece on celebrity sexual violence based on my Facebook and Twitter posts about the Jian Ghomeshi and Bill Cosby cases. What follows is an effort based on my controversial social media posts.

Before I begin, I want to make clear that my perspectives on these issues have evolved over time. As I have got older, I have confronted both the phenomenon of false accusations of sexual violence and knee-jerk refusals to believe victims of sexual violence when they come forward. I won’t be discussing those situations in this post but the proximity of both of those phenomena to me, and their relevance to my life, may help to explain my motivation in writing this piece and the evolution of my views.

This direct experience with both phenomena has not brought me new knowledge that wasn’t already waiting for me in the wealth of clinical literature about trauma and stigma. But it has validated a foundational element of the analysis I offer here: being a survivor of sexual violence who is disbelieved is a far more traumatic experience than being the target of a false claim of sexual violence. In our hedonic calculus, it is important not to lose sight of that basic fact. Reporting sexual violence is traumatic because, for any genuine survivor, the anticipation of disbelief and dismissal, never mind the actual experience of those things intensifies the trauma already experienced, often to unendurable levels.

To begin, let us begin by clearing out the straw men.

What I am writing about is how we socially construct the truth around disputed claims about sexual violence. That means that there two things I am not doing in this piece

  1. I am not talking about what standard the courts should use to punish alleged perpetrators of sexual violence. I am talking about how we think and talk about whether claims of sexual violence are true in a social context, not in a legal context. I am talking about what is true and what is talked about, not what is legal and what people should be punished or compensated for. I am not taking the position that Jian Ghomeshi or Bill Cosby should be in jail, or that they should pay civil damages to their victims.
  2. I am not talking about whether we should enjoy or value the artistic production of celebrity rapists. I have enjoyed and continue to enjoy the films of Woody Allen and Roman Polanski and do not plan to change my artistic assessment of these men’s work, irrespective of their sexually violent acts.

When I make these points in public discourse, apologists for celebrity rapists push back and demand that I make my standards for deciding whether things are true, and my standard for when I can talk about things being true identical to those that the court system uses to convict people of criminal offenses in the English legal tradition.

Having worked as a law researcher in my twenties, this raises immediate red flags. First of all, the courts, themselves, do not use the “beyond a reasonable doubt” or “innocent until proven guilty” standard as their means of ascertaining what is true. Making findings of fact is something left to civil courts who use, depending on what they are trying to do, the standards of “balance of probabilities” or “simple probability” to make findings of fact. Courts that try to figure out what has happened, to comprehend and narrate events deliberately and explicitly eschew the “reasonable doubt” standard when they do so.

Furthermore, we need to understand the context in which the “reasonable doubt” standard came into being, in medieval England. This was a culture based around villages whose residents were highly unlikely to relocate for any reason, populated by families who had resided there for generations. Not until Enclosure began in the fifteenth century, did people have a word for strangers who lived near them. People lived in a world of close, overlapping connections of kinship, fictive kinship (god-parents and god-siblings), parochial and guild participation. In such close-knit places, having opinions about whether people were guilty of sexual violence, murder, etc. was universal and unavoidable. In this context, the “reasonable doubt” standard was created as a countervailing force.

“Reasonable doubt” was made a legal doctrine to restrain small, close-knit communities from beating, killing and incarcerating people the majority were pretty sure had done something wrong. The point of this key standard in criminal law was that it was non-identical to social truths and widely-held beliefs but was, instead, required to meet a higher standard. This higher standard was well-expressed in the John Mortimer novels, featuring a twentieth-century protagonist who defended people he thought were likely guilty because of this “golden thread that runs through British justice [that] it is better to let a hundred guilty men go free than to hang an innocent man.”

It is therefore absurd to suggest that it is even possible to collapse our standards for forming opinions about what has taken place and how it has taken place into the “reasonable doubt” standard, because the standard was made as a countervailing force to wall off questions of physical punishment from widely-held and likely correct social truths. It has never purported to be an alternative epistemology and is not used as such. Indeed, civil court cases that make findings of fact do not understand exculpation by the criminal courts to be a determination that a person did not commit an offense or cause an injury.

And that doesn’t even cover the constraints on cases reaching the courts at all. The reasonable doubt standard is already an unreasonable basis on which to base one’s epistemology before one even considers the fact that the majority of wrongs that take place in our society are never placed before the courts at all. There are very good reasons that people who have suffered sexual violence do not appear in court. Just to remind folks who forget these things when a beloved celebrity is accused of sexual violence, let’s review:

  1. Many victims of sexual violence fear reprisals from their attacker and his associates if they seek to punish him or make him accountable, even if that is just through telling someone, never mind pressing charges. And it is logical to fear that because perpetrators of sexual violence and dangerous, violent creeps.
  2. Many victims of sexual violence are so damaged by the violence that they have been deprived of the capacity—by their attacker—of successfully seeing a prosecution through to its conclusion.
  3. Many victims of sexual violence know that their reputations will be attacked by their accuser, typically before they even get to court and “rape shield” laws take effect and cannot justify having their attacker heap additional verbal abuse and shame upon them in the public square, as we saw Mr. Ghomeshi do with his former partners on Sunday.
  4. Many victims of sexual violence get no emotional payoff from seeing their obviously troubled, obviously self-hating attacker being additionally punished and shamed and, legitimately, fear that punishing them is as likely to magnify their violence and bad character as it is to correct it.
  5. Many victims of sexual violence have already lost weeks, months or years of their lives to dealing with the trauma of the attacks they have suffered to be able to justify investing additional time, money and emotional energy in grappling with an unwanted experience they never asked to have.
  6. Supposing that these five reasons are not enough to dissuade someone from pressing charges, the next hurdle must be cleared: persuading prosecutors and police officers that this case has a sufficient amount of evidence and a sufficient probability of conviction to even arrest the assailant. Given the dismal rates of conviction for sexual violence and the tendency of sexual assaults to take place in private spaces, even if prosecutors and police believe the victim of the assault, it still may be impossible to prove the case.

This list is, of course, not exhaustive. It just scratches the surface of why, in the overwhelming majority of instances of sexual violence, the courts will never have a chance to make any finding.

And the thing is that we know this. The only time we seek to conflate the judgement of the courts with our judgement of the facts is when we defend celebrity rapists. Lots of other matters come before the courts and face a “reasonable doubt” standard. War crime, crimes against humanity, theft, robbery, common assault, electoral fraud and murder are all also indictable offenses judged by this standard.

And yet, here are some phrases you never hear, from either side in a debate:

  • “Dick Cheney isn’t a war criminal. He’s never even been charged.”
  • “OJ Simpson didn’t kill his ex-wife. He was found not guilty.”
  • “The Conservative Party didn’t cheat in the last election. Nobody in charge of the campaign has been convicted.”
  • “Brian Mulroney wasn’t corrupt. He was never convicted of anything.”
  • “Loubos Vacca didn’t steal the security deposit from you and Geoff. The police never brought him to trial.”
  • “That guy didn’t spit in your face. You didn’t even file a police report.”

That’s because “innocent until proven guilty” and “beyond a reasonable doubt” are standards we use in only two places: in criminal court and when defending celebrity rapists facing public outrage. The rest of the time, we look at situations where wrongdoing has taken place and use our God-given reason to sort out what has probably happened. If we’re unsure, we express that uncertainty even as we assert what probably happened. We don’t pre-emptively silence ourselves because one of the things about wrongdoing in a social context is that our shared opinion matters. And, in order to come up with one that makes sense, it is not just helpful but vitally necessary to discuss our opinions and suspicions in a public forum, to test our reasoning and our values in a wider social context.

These behaviours are often allied with two “slippery slope” arguments: (1) that a lynch mob is forming and (2) that our loose talk, socially, will result in an unjust criminal conviction. The problem is that these things just don’t happen. Lynch mobs aren’t for dealing with famous, white millionaires. They’re for dealing with low-income people of colour. There’s never been a Woody Allen or Roman Polanski lynch mob because that’s not the social reality in which they live. Similarly, the idea that there is some slippery slope between the judgement of the crowd and the judgement of the court is an issue institutionally managed by the “reasonable doubt” standard.

No. The reason celebrity rape apologists are shushing you has nothing to do with the shabby slippery slope argument they are offering up. It is because they are, metaphorically, covering their ears and shouting “na na na na na!” They are not interested in debating the facts of a case, the means by which you reached your opinion, what evidence you used and how your used it. Their interest is in silencing you, because, given that we check our beliefs against society, their concern is to prevent views they want to hold from being checked against information and reason.

The “innocent until proven guilty” standard is only deployed outside the courts for the purpose of silencing people and silencing ideas. If people really had faith in the innocence of the rapist hero they seek to protect, they would welcome a conversation about the facts in a rational discussion. But they’re not interested in that. Their interest is in preventing themselves from having a cherished belief challenged.

Justice, social justice—not criminal punishment—is not data-averse. We do not move towards justice when our conversational intervention is to stop people from reasoning and learning, to stop information from changing hands or to stop that information from being analyzed.

Stay tuned for Part II of this essay tomorrow.

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