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How #MeToo could make things worse for victims

26 October 2018

5:34 PM

26 October 2018

5:34 PM

It’s over a year since the #MeToo scandal of sexual harassment broke. It has shaken up our culture and relationships in so many ways over the past 12 months. It isn’t going away, either, as the allegations about Sir Philip Green this week have shown. But it has now reached a point where it could either improve or severely damage the way in which serious allegations are dealt with justly.

The whole movement has been extremely messy. This was inevitable, given the number of people, mostly women, who have had to put up with being ignored or belittled when they complain even about serious sexual assault, let alone more subtle harassment. As with older sex scandals, a lot of the allegations burst out into the press and onto social media because the complainants felt they had nowhere else to air their allegations. In some cases, they had tried to complain and had been rebuffed.

The problem with this sudden flow of information was that every allegation was treated as credible as soon as it was tweeted. ‘Innocent until proven guilty’ has been replaced by #BelieveAllWomen, a slogan that has very well-meaning origins but equally troubling implications. Talk to any survivor of sexual violence or abuse, and you’ll find that the words they long to hear are ‘I believe you’. Too many victims find that they aren’t believed, whether by their nearest and dearest, or even by a jury in a courtroom. Those who dare speak out in public are ridiculed, shamed and irrelevant details of their past picked over.

But the essential compassion of #BelieveAllWomen can mistakenly morph into a suggestion that every allegation is automatically true simply because someone has made it. Not many people would want to fabricate allegations. But a very small number do, though often less because they are malicious and more because something serious has occurred in their life previously. One of the reasons that defence teams are able to apply for disclosure of a complainant’s sexual history in a rape case, for instance, is if that complainant was sexually abused as a child. This may be relevant when the case rests on graphic accounts of an assault which the jury might assume could only come from someone who had actually been raped. In these instances, the person giving evidence has indeed been raped, but not by the defendant in the dock. And it’s important to be sure of that before convicting that defendant.

Many cases don’t make it to the courts, perhaps because there isn’t enough evidence, the victim doesn’t report the crime, or what has happened isn’t a crime but still constitutes the sort of sexual harassment that merits disciplinary action at work. Over the past year, we’ve seen a number of such cases appear on social media and in the press. People have lost their jobs within hours of the allegations appearing.

Once again, the vast majority of claims will come from people who are telling the truth word for word. But those making allegations will be ill-served if all #MeToo leads to is the ability for someone to tweet about being harassed and others replying saying #BelieveAllWomen. Twitter is not a form of due process, and the reason that due process is important when investigating allegations is that it protects a victim. It means that when a verdict is reached, either in the court or in a workplace, the victim knows that they have proved the truth of what happened to them. A man accused on Twitter of sexual assault can easily sow doubt about the veracity of that account. Someone found guilty at the end of a proper process cannot. A victim in the first instance will always wonder whether people believe them, but due process protects them from that worry.

Now, the reason #MeToo was necessary was that due process isn’t working at the moment. We saw in Westminster how poor the parties’ and Parliament’s structures were for investigating complaints without them being weaponised for political purposes. Too few rape victims go to the police because they fear they won’t be believed, either when they first report the crime or when a jury sees what a respectable person their attacker appears to be. In the case of Philip Green, due process is failing when those making allegations (which Green denies) are prevented from airing them further through non-disclosure agreements.

But the Green case has shown us how #MeToo can undermine due process. The case had not concluded its journey through the courts when Peter Hain raised it in the Lords yesterday. It may well be right that Green deserves all the public opprobrium for using non-disclosure agreements in this way. But it hasn’t been decided yet, and this sets quite a dangerous precedent for future #MeToo cases whereby other MPs might decide to use privilege to name figures whose behaviour is not yet proven. You might not care about the feelings of the accused, but you should care about those victims who still find that there is nowhere else to go other than a hashtag.

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