The MeToo reckoning.... Invocation of proof beyond reasonable doubt and due process may end up defending male impunity

Mukul Kesavan, TT: Can you believe abused women on the strength of their testimony without condemning the men they accuse to the kangaroo court of public opinion? Since Raya Sarkar published a list of allegedly abusive academics on Facebook, the response to the  phenomenon has evolved. The main objection then was that these men were being accused of abuse without specifying the nature of their misbehaviour or identifying the victims. This was seen to violate two principles of natural justice: the right of the accused to know the nature of his crime and his right to confront, as it were, his accuser.

Since then, as people have come forward to testify in their own names, as they began to identify themselves and describe the nature of the abuse they endured, a third objection, always implicit in the initial scepticism, surfaced to become the most important objection to the MeToo template of public outing: the absence of evidence that would pass muster in a court of law, that would establish guilt beyond reasonable doubt. The criticism was that the accusers were asking to be believed on the strength of their testimony, that they were —unreasonably — asking for a level of empathetic agreement that bordered on credulity, that withheld from the accused the benefit of the doubt to which they were entitled. This could have been described as a defensive reflex but it was also pitched as a principled objection that saw the presumption of innocence as something so central to justice being done that it couldn’t be compromised.

After that first critique, three things happened. One, people began to acknowledge that the act of listing had thrown up many names that they recognized from acquaintance, rumour and/or experience as people with a reputation for abuse and harassment. Two, as women began to name themselves in their testimony, their personas and their stories became more plausible, even recognizable to people who knew those worlds. Academics in universities, journalists in newspapers, actors in the film industry and people at large surprised themselves with the number of instances that they, their friends and relatives could cite that seemed to add up to an epidemic of abuse. Finally, it became more and more obvious that given the private context of most sexual abuse, the reflexive invocation of proof beyond reasonable doubt and due process amounted to defending male impunity because the furtiveness of predators virtually guaranteed that any testimony could be trivialized as her word against his. Given the scale of abuse perpetrated by someone like Harvey Weinstein and the difficulty of proving any of it in a court of law, phrases like ‘beyond reasonable doubt’ began to seem like defensive mantras or worse, enabling clichés.

The other realization that sank in was that MeToo, both there and here, hadn’t actually sent anyone to jail. No criminal punishments had been handed out and the standards of proof required to convict people of the crime of sexual assault continued to be defined by penal codes, not the social media. The reasonable concern that innocent men would have their reputations damaged by unsubstantiated accusations, that their livelihoods would suffer by being called out on Twitter or Facebook, increasingly had to be balanced out against the vileness and scale of the abuse that women were now testifying to and the plausibility of their testimony.

The nature of this testimony gave the lie to the notion that these women were a lynch mob, licensed by public opinion to string men up. It’s striking how many of these stories of abuse read like women settling accounts with their younger selves. While they accuse men of assaulting and abusing them, the telling of their stories is often a way of coming to terms with the trauma, the guilt, the sense of inadequacy, the helplessness and the unvented rage that roiled them over all the years that they kept the stories of these assaults to themselves. These were stories told by people who had survived sexual abuse and wanted to both bear witness to those parts of their lives and to ask for a reckoning. People who heard them out, even those who remained uncertain about the nature of that reckoning, were shaken by the power and horror of their testimony. It was revealing that Republican senators and operatives wholly committed to Brett Kavanaugh’s nomination were forced to ritually acknowledge both Christine Blasey Ford’s credibility and the shocking force of her story.

The MeToo stories are about many things: coming to terms with the past, warning other women, and calling time on predators. They are about making sure that predatory men don’t continue to prey under a cloak of invisibility woven in equal parts out of unreasonable doubt and machismo. Will they damage reputations and livelihoods despite not being tested in a court of law? If people believe these stories, yes, they will. Is this a travesty of everything the rule of law has come to mean? No. If proof beyond reasonable doubt for a crime is impossible to produce because it’s committed in private by powerful men whose influence stops victims from speaking out, it becomes reasonable for people to make up their own minds about the balance of probability. If we don’t want to relax the standard of proof for crimes, one way of tackling abuse legally would be to make the judicial system more receptive to civil suits where the balance of probability suffices to determine guilt. In the absence of such a system, we are left with public opinion.

One reason why long suppressed individual stories of harassment and abuse are surfacing now is because of social media; it’s a commonplace that Facebook and Twitter have democratized the spread of news and opinion in unprecedented ways. Whatever their defects, they have made it impossible for institutional gatekeepers to keep things quiet. They also facilitate mobilization and solidarity in a way that would have been impossible before. This doesn’t necessarily make them a force for good. It isn’t just the solidarities of sisterhood that are nourished by social media. These platforms also create and sustain fraternities of fascists. So does the outing of predators on Twitter amount to licensing a mob?

No, it doesn’t. First, it’s worth noticing that the short history of the MeToo campaign has consistently shown that it doesn’t have a political axe to grind. Given that it’s seen as a campaign initiated by liberal or left-leaning women, it is significant (or ought to be) that the men it initially arraigned travelled under liberal colours. Whether it was the liberal elect of Hollywood or the broadly leftish social science establishment of Indian universities, their ideological branding didn’t protect them from the witness of MeToo survivors. Secondly, in the spate of disclosures over the past week, it’s noticeable that posts which try to weaponize MeToo politically by making up stories don’t have legs and tend to die natural deaths. Three, people are quick to sift out of the MeToo narrative stories that don’t rise to the level of harassment and this seems to happen regardless of the political affiliation of the alleged perpetrator. For example, Chetan Bhagat’s online intimacies have led to hilarity but people who aren’t sympathetic to his political opinions have intervened to make it clear that these don’t amount to abuse.

On the other hand, the avalanche of testimony triggered by Priya Ramani’s naming of M.J. Akbar, that very networked political chameleon, has brought metropolitan India to the verge of its own Weinstein moment. To read Ghazala Wahab’s harrowing account of chronic assault, to read Majlie de Puy Kamp recall the way this ‘friend’ of her father repaid him by assaulting her on her last day at work as an intern at his own paper, and then to read Akbar’s calm deflection of her father’s concern, is to know the enormous debt of gratitude that we owe to MeToo. None of this makes up for the damage done by these predators in the past but there is a profound consolation in knowing that there has been, and will be, a reckoning. If we are going to use the vocabulary of law to discuss MeToo, let it be said that this is an online class action that’s been a long time coming.