Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

How misapplying legal reasoning distorts social conventions

(As per my usual policy, when I’m discussing something difficult, I abandon the lyrics in the subject line.)

A story from the ACT is already doing the rounds with misogynists.  A woman has been sentenced to three years in jail for making a false sexual assault allegation against her ex-boyfriend.  It’s unusual to see these stories published so widely. This one might have been published because of its long and complex history.

The problem with reporting these cases is that they discourage women from coming forward with sexual assault/harassment allegations.  Women who make these claims should be believed, and we shouldn’t encourage an environment which is hostile to them speaking up.

Where things become difficult is the near total elision of legal norms with broader social norms.  All too frequently, we hear legal concepts being used as if they apply outside of courtrooms.  Presumptions of innocence, balances of probabilities, &c., &c. These are concepts that only make sense within a specific and narrow context and are not applicable to wider social conduct.

It’s important to get these things right because otherwise it fuels the misogynists and Mens Rights Activists who, let’s face it, never seriously believed in the broader principles to which they appeal.

The claim that nobody makes false allegations about sexual harassment and assault is obviously absurd.  Many figures circulate about the rate of false allegations, but they’re notoriously imprecise and difficult to replicate.  Historically, false allegations were part of a structure of white oppression of minorities, especially African Americans.

The interaction of false claims with other mechanisms of social violence is the part that is overlooked.  In the case of Emmett Till, for example, it wasn’t the false allegation that lynched him, but the context of violent structural racism. That is, erring on the side of believing a claimant is not itself a problem.  The problem is when claims are a trigger for actual forms of violence.

It is essential to get that part right.  Women coming forth to make complaints about, say, Harvey Weinstein did not result in Weinstein being lynched.  More than 80 women have come forward with complaints and Weinstein is still a millionaire.  Erring on the side of believing women when they complain about sexual harassment and sexual assault creates an atmosphere where people feel like they can come forward with claims.

Further, we can see in this context that false claims are not a problem.  Let’s say that fewer than one in a hundred claims is false, if the social responses are properly calibrated, then we can focus on the right responses without having to worry primarily about the veracity of the claim.  If the social responses aren’t calibrated properly, then it’s not a problem of believing women when they come forward but, clearly, a problem with the social responses.

Not all responses to believing women who come forward are legal responses.  Many of them are social: how do we make sure men check their behaviour? how do we ensure that there are mechanisms in place to protect women in the workplace? how do we change the culture to make a safer environment for everybody?  We live in a world where a woman making a complaint about a male colleague’s behaviour is still likely to result in unwanted repercussions for her.  There are numerous examples of HR departments completely dropping the ball when it comes to ensuring women who make complaints are protected, even if the woman making a complaint did not want any action taken against the perpetrator.

None of the above is a legal response, and yet we routinely see people wringing their hands complaining about ‘innocent until proven guilty’ as if we need the rules of evidence and procedure to take a complaint seriously and change the environment.  You don’t need legal procedures to empower a complainant to take control of institutional responses to her complaint, yet we routinely see women stripped of control of the response to their complaint, subjecting them to unwanted criticism, attention, and administration.

This gets us neatly back to the start.  When the complaint did enter a legal context, it is at that point that the legal norms are supposed to come into play.  He was entitled to be treated as innocent by the State until proven guilty.  Far from bringing into question the credibility of women who make allegations of sexual assault and harassment, the story should force us to think critically about how people accused of crimes are treated by the legal system.

We have politicians across the country braying for harsher penalties for people charged with criminal offences.  Commentators in the mainstream press have even called for ‘No body, no bail’ rules, effectively (and bafflingly) requiring people to confess to crimes in order to get bail…  Being charged with a crime should not be a life-ending moment if we had a legal system that was genuinely dedicated to the rights of victims and the accused.  It wasn’t the false allegation that caused four months of imprisonment awaiting trial; it was the legal system not having adequate protections for the rights of the accused.

This is, obviously, not how the MRAs want to read this case.  For them, this is an example of lying women destroying men with their lies.  It just seems so hollow when they don’t get similarly outraged about similar treatment for people charged (but not found guilty) of other crimes. It’s almost as if there’s another agenda…

False allegations are going to happen.  We shouldn’t pretend that they won’t.  But we shouldn’t focus on the nature of an allegation without taking into consideration the context in which the allegation is made.  If it’s not a legal setting, we shouldn’t be employing legal norms to discuss our response.  If it is a legal setting, we need to think about how we treat the rights of the accused generally and not specifically to particular kinds of allegation.  Nothing in the story of the false allegation should provide succour to the misogynists, but we give them a free kick if we focus on the wrong aspects of this extremely complex and multifaceted social problem.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: