Judging Kavanaugh in the #MeToo Era

Introduction: What to Do about #MeToo?

In what could be deemed a statement of secular heresy, I must confess to being somewhat ambivalent about the #MeToo movement. One certainly can’t deny its role as a driver for widespread social change, much of it for the better. This, of course, goes beyond the exposure and condemnation of a handful of famous predators. Aided by the amplifying power of social media, #MeToo has succeeded in fundamentally shifting the conversation regarding the rights of women. It has revealed hidden attitudes, even prejudices, concerning gender relationships and the role of women in society. In many instances, those attitudes deserved to be unmasked and repudiated, such was the toxic power they possessed. #MeToo has given otherwise timid, silenced individuals the platform – the voice – to combat habits of mind that sustain a conspiracy of shame and studied ignorance. To the extent that the movement has widened the scope of justice and invigorated the ongoing project for women’s rights, it should be applauded.

But like so many mass movements, #MeToo has been prone to a slew of excesses. Righteous fury has frequently given way to uncontrolled outrage, whilst the commendable idealism with which the phenomenon began has at times mutated into a mob’s crusade against even the smallest of perceived infractions. As the notion of unforgivable transgressions has become increasingly capacious, individuals with but a distant, tangential connection to some of these heinous acts have been dragged into the movement’s orbit. Just ask Ian Buruma, who until recently edited the salubrious The New York Review of Books. He left that position after a #MeToo-inspired imbroglio – not because he raped a woman or abused his position of power for the sake of sexual gratification, but because he showed insufficient sensitivity to victims by publishing an author who’d been credibly accused of such crimes. Undoubtedly, Buruma’s decisions – including some of the things he said in a follow-up interview – represented quite serious lapses in judgment. But it is another thing entirely to argue from this that he should have fallen on his professional sword, particularly as he himself has never been accused of the kinds of acts that sparked #MeToo in the first place.

Even where an accusation concerns the perpetration of a sex crime, the need for substantiation has sometimes been curiously lacking. The role of social media – which can transform the smouldering embers of a single controversy into a raging brush-fire of online outrage – cannot be overstated here. A claim of abuse, fired off like a salvo from one’s Twitter account, appears to be a sufficient basis for indictment. Just as alarmingly, they have led to the ruination of more than one career: a single, uncorroborated allegation is all that is required to destroy another person’s employment prospects. For all the celebrated good it has accomplished, #MeToo has also provided some with the cloak of unimpeachable veracity. Invoking the movement’s imprimatur, they consider themselves exempt from deference to basic moral norms to which people generally adhere; mere accusations are elevated to the status of unquestionable truth, whilst minor deviations from the movement’s accepted narratives are met with a wave of anathemas. In such a hostile, feverish climate, how is an accused person meant to defend himself without appearing to be self-serving? How are others meant to call for restraint and sober judgement without being labelled apologists for predatory behaviour?

Accused and Accuser in the #MeToo Era

These concerns were sheeted home recently as I monitored the acrimonious congressional hearings for the next justice of the United States Supreme Court. For the previous few weeks, those proceedings had grown ever more rancorous, as an already-fierce partisan contest degenerated into the basest kind of tribalism – aided in no small measure by the deepening cultural heft the #MeToo movement enjoys. Donald Trump’s latest pick for the Supreme Court, Brett Kavanaugh, has lately been assailed with allegations of (attempted) sexual assault during his days as a hard-drinking, hard-partying youth. Kavanaugh’s eventual confirmation notwithstanding, those allegations formed the foundation for a relentless campaign against his nomination – a campaign that seemed intent, not merely on trying to block one man’s ascendancy to the highest court in the United States, but on utterly destroying his reputation in the process. Of course, if he is guilty of the crimes of which he has been accused, then a shattered reputation would be well-deserved. But that’s precisely what has been at issue: whether or not Kavanaugh actually committed such heinous acts.

I don’t think it will ever be possible to know what transpired 30-odd years ago, when Kavanaugh’s first accuser, Dr Christine Blasey Ford, claimed that he attempted to rape her at a house party. At this point in time, we only have the testimonies of the victim and her alleged assailant; tearful accusations, on the one hand, and indignant denials, on the other. Although her testimony was powerful and arresting, Blasey Ford’s claims remain uncorroborated: the four people she said were present at the time of the incident (including Kavanaugh) have all publicly said that they have no memory of the event. Moreover, the credibility of her accusations has been brought into question, a fact that should give any reasonable person pause. Short of a confession from Kavanaugh or a recantation from Blasey Ford, it’s unlikely the impasse will be conclusively resolved. Such is the paucity of information, I think personal agnosticism and the presumption of innocence (unless otherwise demonstrated) is probably the least tenuous position one can adopt with respect to Judge Kavanaugh. And given the high hysteria with which this saga has been garlanded, I also think it’s the most mature.

But in an era that is being shaped by the burgeoning zealotry of the #MeToo movement, agnosticism is seen as tantamount to a betrayal of abuse victims. Meanwhile, pleas that we cling to the foundational principles of Western jurisprudence are contemptuously dismissed as the purest sophistry – a cynical ploy, designed to protect abusers and further humiliate victims. For Kavanaugh, being accused under #MeToo’s spectral presence is enough; the mere appearance of a complaint, whatever its evidentiary value, is now adequate for many pundits, politicians, commentators, and “Believe Women” activists to condemn an individual and shred his public standing. The movement’s presence has been glimpsed in the gaggle of protesters outside Congress damning Kavanaugh as guilty. Its ethos was echoed in the words of actor and activist, Rose McGowan, who urged commentators to discard the word “alleged” when talking about this and other incidents. And its strictures were obediently aped by journalists calling on Kavanaugh to be banned from coaching his daughter’s basketball team. As Kavanaugh himself conceded, his reputation has been irrevocably tarnished already as a result of these accusations. If anyone doubts the seriousness of that rather grim prospect, we might recall the sage (if ironic) words of Iago, the primary antagonist in William Shakespeare’s play, Othello:

“Who steals my purse steals trash…But he that filches my good name/Robs me of that which not enriches him/And makes me poor indeed”.

Regardless of what happens from here – even if Kavanaugh were to be completely exonerated – this is unlikely to change. The stench of a sexual assault allegation is simply too strong to shed completely. More about that anon.

Undermining the Western Heritage

It was disturbing, then, to see a person being subjected to the most salacious attacks, even as those leading the assault (and here, I do not include Blasey Ford herself) seemed content to press on in the absence of any concrete facts whatsoever. His opponents appeared unwilling to entertain even the theoretical possibility that he may not have committed the crimes of which he is being accused. Instead, they appeared singularly devoted to his irretrievable destruction. But what we are witnessing transcends the experiences of one man. Kavanaugh is a condensed symbol of the kind of frightful turn the culture, in the US and elsewhere, is taking. The #MeToo movement cannot claim sole credit for this unwelcome state of affairs, of course (uncorroborated accusations were being made against people long before it began). We shouldn’t ignore, for example, the role that an increasingly ugly political discourse has played in this affair. Still, #MeToo has fostered the conditions required for such practices to take on an unexceptionable, even virtuous, air. Uncritical acceptance of the intrinsic sanctity of an accusation – and with it, the implicit canonisation of the accuser – is now demanded as a matter of justice. The ritual denigration of an accused man is likewise thought to be necessary if the baleful forces of an oppressive patriarchy are to be kept at bay. In the face of such beatifying authority, how are the normal processes of justice and truth meant to operate?

I for one can’t see that they can. #MeToo’s transmogrification into a kind of secular religious movement has meant the inadmissibility of doubt or scepticism. Nothing less than unalloyed faith is permissible; anything falling short of this standard is an impediment on the road to gender-based justice. Kavanaugh’s current experience is simply one manifestation of this wider phenomenon. It’s also one reason why all of us – conservative and progressive, religious and secular, male and female – should fear the consequences if some of the darker legacies of #MeToo are allowed to weave themselves into the cultural fabric. The values underpinning the movement’s more extreme edges are fundamentally at odds with the basic principles of Western jurisprudence I referred to earlier. Indeed, as the columnist Victor Davis Hanson recently wrote, what we are observing right now,

Involve[s] a strange inversion of constitutional norms:…hearsay is legitimate testimony; inexact and contradictory recall is proof of trauma, and therefore of validity; the burden of proof is on the accused, not the accuser; detail and evidence are subordinated to assumed sincerity; proof that one later relates an allegation to another is considered proof that the assault actually occurred in the manner alleged; motive is largely irrelevant;…and the individual allegation gains credence by cosmic resonance with all other such similar allegations.”

The presumption of innocence, the burden of proof, the slow, unprejudiced weighing of evidence – these principles, for which many people have fought so valiantly, lie at the heart of the Western legal system. And quite rightly, too, for they form the main bulwarks against the tyranny of the accusing finger, or the vengeful braying of the mob. Without them, people are at the mercy of rumour and hearsay, held hostage by the awareness that the mere presence of an accusation – however fanciful, however scurrilous – is enough to destroy them. Of course, Brett Kavanaugh is not on trial (at least not literally), and those principles don’t apply in quite the same way. But they are not simply the preserve of court houses and lawyers. Rather, they are part of the unwritten code of decency that governs modern life; the unseen lineaments marking out a civilized society. The more dogmatic representatives of #MeToo, fuelled by an eschatological fervour, are working assiduously to ensure those principles are abandoned.

Beneath these crucial tenets rests a fundamental belief in reason as the best tool to which we have recourse to determine the truth of the matter. It’s not perfect, by any means. All too often, we have allowed reason to succumb to hysteria, prejudice, or plain old bias. But by developing the basic architecture of rational discourse, Western culture has hit upon the surest means of forging a harmonious union between a person’s truth claims and the reality to which they allegedly point. It is also all we possess as a society if we want to ensure that justice – where the innocent is acquitted and the guilty is condemned – is truly, genuinely, dispensed. To do so, however, requires a measure of doubt and intellectual reserve when examining allegations leveled against another person. This isn’t to cast aspersions on a woman’s personal credibility; nor should anyone pretend that questioning the searing testimony of an alleged victim of abuse wouldn’t be deeply painful. But that basic position is unavoidable if we are to ensure a rigorous commitment to truth.

This cannot be underscored too frequently: the “Kavanaugh affair” represents a deliberate and widespread repudiation of crucial features of our cultural heritage (and by “our”, I mean those of us who live in, and enjoy, the fruits of Western society). Its replacement would see identity or outward sincerity become the primary criteria by which truth is to be adjudicated; automatic credence given to an otherwise unsubstantiated allegation; and reason and restraint being ruthlessly supplanted by emotion and hysteria.[1] It would be, in other words, the antithetical rejection of those cultural boundary markers that afford protection to those accused of even the gravest of crimes. If their erosion is permitted, then a terrible precedent will have been set. Again, if someone of relative power and privilege can be ground down in this way on the basis of unproven allegations (and let’s not kid ourselves that for Kavanaugh, it would end simply with his being sent back to the Court of Appeals), where does that leave ordinary people? If this way of dealing with one’s opponent is legitimized in one field (i.e., accusations of sexual assault), why should we think it won’t spill over into other domains of life? It’s partly for these reasons that I am deeply reluctant to heed voices on both the Left and the Right who argued Kavanaugh should have withdrawn his candidacy for the Supreme Court. To have done so would have represented a capitulation to forces that shroud their basic illiberalism in the robes of empathy and compassion.

The Ghost of Theophanous

Some reading this piece may still be unpersuaded. It might even be tempting to reject it as a disingenuous exercise aimed solely at preserving male privilege. And whilst others might be inclined to agree with me, talk of the Western heritage may seem like little more than a piece of abstracta. But everything that I have discussed has been borne out repeatedly in the concrete experiences of people whose lives have been utterly ruined – even ended – by the corrosive power of unfounded accusations. Many such examples could be cited; one in particular comes to mind, and it concerns a little-known Australian politician named Theo Theophanous.

A decade ago this month, The Age, a Melbourne newspaper, published an explosive story apparently exposing Theophanous as a rapist. It detailed an interview with an anonymous woman who claimed to have been sexually assaulted by Theophanous in his parliamentary office. Four days later, the same newspaper ran a damning profile of Theophanous, painting him as a manipulative and lecherous charlatan. Bear in mind that Theophanous had not been charged with any crime, or even interviewed by police. No formal complaint had been made. But a major daily news outlet nevertheless decided to run an uncorroborated story (on its front page) in the most lurid detail. Within days of these twin pieces, Theophanous stepped down from his position as a minister in the Victorian state government. About a year later, he left parliament, his ministerial career obliterated.

A subsequent court hearing, in which the magistrate dismissed a case against Theophanous at the committal stage, found that the woman who levelled the accusations against the former politician was an “entirely unreliable” witness. Her account of the alleged rape was so riddled with inconsistencies as to be simply unbelievable. It’s little wonder that sex crimes detectives required 15 months – and 15 attempts – to help the woman produce a statement that could pass even the lowest threshold of plausibility. Furthermore, she had a history of making false claims: first, in an effort to claim social security; and second, by dishonestly accusing a former boss of sexual harassment. When one of the interviewing detectives was asked in court why he’d been so credulous, despite knowing all of this, he said: “It’s incumbent upon us to believe what complainants tell us…” I doubt that a more perfect rendition of one of the #MeToo movement’s guiding principles could be found.

The Australian newspaper interviewed Theophanous about six years after the ordeal. Despite being completely exonerated, he said he was still haunted by what happened. He and his wife have been able to move on, but even today, the toxicity of a rape accusation can still succeed in warding off potential employers. One charity declined to accept his application to sit on its board, saying that although it knew him to be innocent of the charges, it did not want his presence to be a distraction. Life has regained some semblance of normality for Theo Theophanous and his wife, but the torment of that experience has left an indelible mark. The “filching” of his reputation and character (as Iago observed) has impoverished him in a way that the theft of mere possessions cannot do.

Of course, my point is not to unfavourably compare the anonymous woman in this story with Christine Blasey Ford. For one thing, Blasey Ford exposed herself, bravely appearing before a Senate committee to testify as to what she claims occurred. And unlike Theophanous’ accuser, Blasey Ford at least appears to be someone of credible character (whatever one thinks of the content of her testimony). But his experience dramatically illustrates what can happen when an unverified accusation of rape or sexual assault – even one as laughably implausible as the allegation that felled him – is leveled against another person. It also shows that not every allegation can, or should, be believed; Theophanous’ accuser plainly failed to meet the minimum standards of credibility. Contrary to what some activists might think, then, women (just as much as men) are prone to deception or confabulation. A reasonable, sane society would acknowledge this fact – not because women are particularly duplicitous, but because everyone is capable of falling into error or sinning against truth.

Theo Theophanous underwent the humiliation of being labelled a sexual predator some years prior to the genesis of #MeToo. I fear, however, that the cultural landscape has changed dramatically, at least in the United States. If left unchecked, the expansion of these perverse attitudes all but guarantees (and even legitimizes) the weaponization of hearsay and gossip as a means of inducing social death. And although the epicentre of this phenomenon lies in the US, there is no reason to think it won’t also make its presence felt in other Western societies.

Thankfully, such shifts haven’t yet been “mainstreamed” here. But if (or when) that occurs, we would likely witness a well-rehearsed litany of consequences: the substitution of accusation for evidence; the ostracism of the accused and their families from polite society; the creation of pariahs out of anyone publicly associated with them; the corruption of even the ordinary rhythms of life, eroding trust and civility between individuals; and the deepening tribalization of our politics. This potential future has already been glimpsed, fuelled by the unholy alliance of a metastasized #MeToo movement and an ugly, hyper-partisanship. The “Kavanaugh Affair” is a harbinger, even if the man at the heart of this tawdry saga has survived his brutal confirmation hearing. But for those who have gleefully watched his possible demise, or who thought that yet another powerful lecher was being justly exposed (even in the absence of all confirming evidence), I can only ask: has it been worth the cost?

[1] And no, I am not making some coded insinuation about the differences between men and women with that last warning.

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