Transitional Justice Lessons Regarding Complex Victims for #MeToo


On August 19, the New York Times broke allegations that then-17-year-old Jimmy Bennett was statutorily raped by Asia Argento, alleged victim of Harvey Weinstein and vocal #MeToo advocate. Argento also stands accused of subsequently arranging a $380,000 payment to Bennett in exchange for his transferring the copyright of pictures documenting the event and surrendering the right to sue. Argento has publicly denied the sexual encounter and suggested her now-deceased boyfriend Anthony Bourdain pressured her to make the payment to avoid future economic and reputational harassment from a dangerous individual. TMZ then leaked texts supposedly from Argento acknowledging the sexual encounter, denying that she knew his age, and reiterating her shakedown claims.  Jimmy Bennett has since released a statement explaining his choice to “handle it in private with the person who wronged me” because he “was not ready to deal with the ramifications of my story becoming public. At the time I believed there was still a stigma to being in the situation as a male in our society. I didn’t think that people would understand the event that took place from the eyes of a teenage boy.”

Much ink has already been spilled on Asia Argento’s alleged hypocrisy, including a tone deaf missive from Harvey Weinstein’s lawyer, and its impact on the credibility of the #MeToo movement here and in Argento’s home country of Italy. Additional criticism has been directed at another #MeToo advocate Rose McGowan when she asked the public to “be gentle” with Argento. As the public, the state, and #MeToo advocates must decide how to process these revelations, #MeToo founder Tarana Burke has emphasized that There is no model survivor . . . . We are imperfectly human and we all have to be accountable for our individual behavior,” and #MeToo amplifier Alyssa Milano has said, the “core of the #MeToo is about ‘holding people in positions of power accountable . . . whether that be power because you’re the CEO of a company or power because you [sic] a 30-year-old woman and you’re looking at a 17-year-old boy in a sexualized way.”

As #MeToo struggles with these latest revelations, some historical perspective might help bolster intuitions about how to deal with so-called complex victims, those victims that have themselves acted as perpetrators. The transitional justice literature might be particularly helpful as the #MeToo moment shares many similarities with transitional societies, including widespread patterns of misconduct, structural inequalities, a history of denial and the normalization of wrongful behavior, and uncertainty about the way forward.  Most relevantly for the problem of complex victims, transitional justice often takes place in settings in which many of those involved in “protracted armed conflicts and political violence” are both “victimised and victimiser over a period of time.”

While much remains to be theorized and put into practice, I’ve extracted two key points emerging in the transitional justice scholarship as regards complex victims. The first is that victimhood does not per se preclude accountability for wrongdoing by complex victims.  Going back to the aftermath of World War II, many trials were held for kapos—those Jews whose supervision of fellow inmates enabled efficient functioning of concentration camps. While the informal and summary nature of some of those trials left much to be desired on the justice front, the notion that complex victims could and should be held accountable for their misdeeds continued to inform state and international transitional justice practices. For instance, the International Criminal Court concluded that Dominic Ongwen’s  abduction as a child to serve in the Lord’s Resistance Army (LRA) did not absolve him of liability for wrongdoing committed later as an adult in the LRA. Of course, not everyone agrees on what form accountability for complex victims (or any other perpetrators, for that matter) must take in transitional settings. Other approaches for accountability might look more like truth and reconciliation commissions with specific mechanisms for complex victims or for restorative justice and other alternatives to formal criminal accountability. For #MeToo, this means that while tension may still exist as to whether to pursue traditional criminal trials or more victim-centered restorative justice, the criminal investigations into Argento and other complex victims are as appropriate as investigations into any other alleged #MeToo violator. As Stephen Colbert aptly put it, “accountability is meaningless unless it’s for everybody.”

That said, one important way in which complex #MeToo victims may likely differ from many of their peers in transitional justice settings is that the vast majority of #MeToo victims, even complex victims, were unlikely to be coerced or physically forced to engage in assaults to prevent their own suffering as were some of Jews used as Kapos or child soldiers drafted into brutal forces like the LRA. So to whatever extent transitional justice promotes sentence reductions or other ways to mitigate responsibility by virtue of coercion or duress, those do not apply here.

The second point increasingly forwarded in the transitional justice literature is that complex victims deserve to be recognized as victims and included in reparations schemes that address the wrongs to which they were subjected. Though in practice, transitional justice reparations have often been limited to innocent victims, doing so perpetuates impunity for the crimes committed against complex victims. Complex victims, though they have committed wrong(s) and thus are not moral innocents, are still human beings who suffered a wrong to themselves. Those harms need to be acknowledged both for dignitary reasons, but also to help emphasize their inclusion in society moving forward. Asia Argento’s alleged rape of Jimmy Bennett does not dispel her need for justice against Harvey Weinstein or diminish her need to heal or society’s need to find a way to ultimately reintegrate offenders who have made amends, served criminal sentences, or otherwise taken the necessary steps to reenter society. While #MeToo is unlikely to generate formal financial reparations as in settings of transitional justice, legislatures and private entities like Time’s Up are generating a variety of resources for victims ranging from counseling to money for litigation and some victims may receive money from civil litigation or settlements. Complex victims ought not be denied access to such resources simply because they are not ideal victims. Rather they may find themselves in the unusual position of being eligible both as a giver and receiver of recovery resources.

An additional lesson might be wariness of doling out unduly harsh judgments by virtue of the female perpetrator’s violation of traditional gender roles. Of course, criminal sentencing and other forms of accountability, both private and public, ought to have room for nuance, but one must be careful not to let bias seep in. For instance, in the transitional justice setting, Pauline Nyiramasuhuko, Agnes Ntamabyaliro, and Euphrasie Kamatamu deserved and received harsh sentences for their prominent and substantial roles in carrying out the Rwandan genocide, but their sentences ought not and did not look meaningfully different from men with similar levels of participation. By way of analogy, Asia Argento and other alleged female #MeToo perpetrators, like Avital Ronell, also do not deserve starker penalties or harsher opprobrium than their male peers by virtue of their gender.

Like societies engaged in transitional justice, it is unclear whether America and other countries seriously grappling with #MeToo will, in fact, successfully address widespread patterns of misconduct and structural inequalities, rewrite a history of denial and create a new normal in which wrongful behavior is seen and addressed as such. But complex victims may provide an early litmus test of society’s commitment to the ideals of #MeToo accountability.

Posted in: Philosophy and Ethics

Tags: Legal, MeToo

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