#MeToo & due process

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#MeToo has been a powerful force for good but in the court of social media, ‘I don’t know’ could be the fairest verdict of all, writes The Secret Barrister

An old stand-up routine – I forget whose – used to poke fun at those old-style newspaper polls where members of the public were invited to phone a premium rate number and express their view on a contentious issue of the day.


Press 1 to vote ‘For’; press 2 to vote ‘Against’; press 3 for ‘Don’t Know’. The performer riffed on the domestic scene that would accompany someone ringing in to vote for the third option. ‘Honey, I feel very strongly about this issue,’ the comedian shouted as he dialed the imaginary phone before enthusiastically, loudly and proudly yelling, ‘I don’t know!’ down the receiver.

That is where I find myself with this piece; trying to find a settled position to cleave to as the post-Weinstein #MeToo storm gathers intensity. Surrounded by polarized conclusions either automatically supporting or automatically dismissing the avalanche of complaints of sexual misconduct, I find myself increasingly convinced of the merits of the cop-out. I don’t know. And I feel quite strongly about it.

It is plain that, in many respects, #MeToo has been a powerful force for good. For too long, too many relationships of unequal power have been underscored by a subtle threat; a steady percussive sexual beat audible only to the parties involved. Social media has given a platform, and an opportunity to be heard, to victims of unwanted sexual advances – usually women – who have kept their counsel for fear of consequences, or whose complaints were dismissed at the time, or who internalized it as just One of Those Things that women are expected to take in their stride, Julia Hartley-Brewer-style, on the understanding that this is simply the unexceptional price one pays to have a vagina in the modern world.

Pernicious abuses of power

Some other canards are in need of shooting. That the allegations do not all amount to criminal offences does not diminish the importance of the issue. The Equality Act definition of sexual harassment – unwanted conduct of a sexual nature having the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment – has no equivalent in the criminal courts, but all fall on the spectrum of unacceptable behaviour. That some of the women concerned have rejected the victim label and downplayed the significance of their experiences does not impinge on the legitimacy of the grievances of others. That some ‘old school’ men are worried about ‘shades of grey’ and ‘fine lines’ buys little sympathy with me. If you’re the product of a culture that makes it difficult for you to act like a professional and get through the working day without sexual bantz or finding your hands wandering onto those you work with, that’s a matter for mitigation, not plea. A series of straw men have been erected during the debate – no-one is suggesting that rape is as serious as an unwelcome hand on the knee; they’re just saying that people shouldn’t be expected to tolerate either – and should be burned down.

The number of people who appear – or pretend – not to understand the pernicious abuse of power implicit in such misconduct – whether employer and employee; director and aspiring actor; MP and researcher; or barrister and chambers staff – suggests at best a pandemic of Stockholm Syndrome, at worst an effort by some at pre-emptive dismissal of complaints that they know are coming.

Amplification of allegations

It is self-evidently good that the social media amplification of allegations against named individuals means that they are finally, as rightly they should be, taken seriously. However. There is a thick black line between treating an allegation seriously and automatically believing its truth. And this, it seems, is where trouble arises. To not subscribe to automatic belief is painted as a continued betrayal of the vulnerable. #IBelieveHer is the hashtag to which all good progressives must adhere. And this is dangerous.

Some of the cases reported are apparently straightforward. Confessions have been made, apologies offered or curious pleadings in the alternative – if, which is not admitted, I sexually assaulted you, then I am sorry – tellingly submitted. For those, we can move swiftly to belief, condemnation and sentence. But wherever there is an allegation that is denied, it would behoove all of us who were not witnesses to the event to remind ourselves of some of the basic principles of due process.

Where we have contested claims carrying consequences for the accused which are more than trivial – where reputation, employment, financial security or liberty are on the line – the law provides a mechanism for fair resolution. In the majority of the recent allegations, formal legal action has not been, and may never be, initiated. But that does not mean that the stakes are not high for those accused. Some of the allegations aver serious criminal misconduct. Many more threaten career-ending stigma and financial ruin.

The court of social media does not however draw breath to contemplate due process; it calls for these sanctions at the close of the prosecution’s opening speech. And sanctions are duly doled out – the pressure on political parties, film studios and employers to address the wrongdoing is often acceded to before wrongdoing has been admitted or established.

The overcorrection – the eagerness to foster a receptive environment for complainants as a contrast to the barren wasteland of the past–is entirely understandable. But it is equally wrong. It evokes the ruinous Operation Midland, where an adopted ‘culture of belief’ led the Metropolitan Police into uncritically accepting the truth of serious criminal allegations and abandoning basic investigative principles. The burden of proof, Sir Richard Henriques found in his damning report of the operation’s failures, was turned on its head by officers desperate to demonstrate their victim sympathies.

Yes, it may well be the case that the majority of the #MeToo allegations are true. And the urge to instinctively believe something said which feels intuitively right, or which even mirrors one’s own experiences, is powerful. But it should be resisted. Because some complaints, inevitably, will not be true. The preponderance of truthful claims does not diminish the importance of weeding out the malicious, mistaken or confabulated; nor does it of itself tell us anything about the merits of any given allegation.

Litigation via hashtag

There’s an obvious parallel with criminal law that seems to have been lost in the fog. Most people charged in the criminal courts are probably guilty of something. But we don’t assume the correctness of the Crown’s allegation in any given case; we require it proved, for the protection of those wrongly snared in the system’s cogs. Until wrongdoing is proved, we recognize that the only just, humane and fair approach is to treat complaints seriously, but respond to questions over the merits of any contested claim with a presumption in favour of the accused. In civil cases, the burden rests on the complainant. Notwithstanding that we’re not dealing with formal litigation here, these principles should be our guide.

We must take complaints seriously. We must, where possible, offer due process to the parties and a forum to resolve contested claims. But where, for whatever reason – and I pass no judgment – people elect not to try their complaints in formal procedures, but to send up a flare into the ether of social or other media, the only fair thing to do, it appears to me, is to mimic as best we can the rubrics of due process. If, as is probably the reality, we cannot persuade the juries of social media to faithfully apply formal legal standards to every case, the very least compromise should be neutrality. #IBelieve is as dangerous and unreasonable a starting position as #They’reAllLiars. If we must litigate in hashtags, I’d respectfully suggest we vote enthusiastically, loudly and proudly for #IDon’tKnow.

Contributor The Secret Barrister, Independent Blogger of the Year, The Comment Awards 2016 & 2017, thesecretbarrister.com

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The Secret Barrister

Winner of Independent Blogger of the Year in the 2017 and 2016 Comment Awards, the Secret Barrister is a junior barrister specialising in criminal law and blogs at thesecretbarrister.com.