We’ll admit the title reads like an inedible word salad, but if you keep reading, it all comes together. In Part I, we introduced the cy pres remedy and the Supreme Court’s ongoing interest in refining it. Though the Court punted in Frank v. Gaos, we think Justice Roberts’ questions about the remedy may be taken up soon. And if they aren’t, lower courts will need guidance from someone other than the Supreme Court. We suggested restorative justice as a lens through which courts could better understand what kinds of organizations and what kind of donations ought to count as being “as close as possible” to providing a remedy to the non-compensable or already compensated class of plaintiffs. In Part II, we move beyond formal judicial remedies to suggest how cy pres’s demands of “as near as possible” might inform contemporary concerns with assessing #MeToo perpetrators and other “cancel” comebacks. We suggest that restorative justice might help society understand both when a perpetrator of wrongdoing is coming as close as possible to restoring his victim(s) and thus, as either victims or third parties, we ought to consider at least some of the harm undone. Such a view might help re-center the #MeToo debate away from its seemingly sole punitive focus and more towards the twin purposes of victim restoration and deterrence.
Where does the show Fleabag fit into this discussion? [Warning: many, many spoilers for those who have not yet had the delight. Stop reading and go watch immediately.] In Fleabag, creator Phoebe Waller-Bridge paints the titular character as a deeply flawed, complex victim and perpetrator. Fleabag is trying desperately to find a way through the world knowing that she deeply wronged her friend and played a strong causal, if not legal, role in her death. How can she go on without the ability to directly make amends to her best friend? At first, she follows a deeply self-destructive path which seems at least partially explicable by the other spectacularly damaged people who populate her universe.
Her loathsome brother-in-law Martin serves as a foil: he shows the path of those who will not try to right their wrongs. At the beginning of the show, Fleabag adroitly introduces Martin to the audience as “He’s one of those men who is explosively sexually inappropriate with everyone but makes you feel bad if you take offense, because he was just being fun.” In addition to his repeated sexually inappropriate banter and his pointed cruelty, Martin assaults Fleabag with a nonconsensual kiss and then lies to his wife about Fleabag being the initiator. He blames the ultimate demise of his marriage on Fleabag and his wife, refusing to accept fault, noting “I am not a bad guy, I just have a bad personality, it’s not my fault, some people are born with f*cked personalities.” But even Martin is not all bad; he loves his son and wife and would never hurt an animal, even though he would punch his sister-in-law. Rather, he’s understandably complex, but over the two seasons, he refuses to apologize, he rejects the possibility of meaningful change, and perhaps worst of all, he negs his wife, stating, “I am not going to leave until you are down on your knees begging me.” We might feel some justifiable pity for Martin and many might offer him compassion or understanding, but who among us didn’t cheer when his wife ended the marriage and sought happiness elsewhere? Moreover, his parting exchange with Fleabag shows that despite his speech to his wife and the impending dissolution of his marriage, nothing has changed in his relationship with Fleabag nor has he undone the harm he inflicted on her. He has neither pursued restorative justice nor has he earned redemption.
If Martin is the absence of change and the unwillingness to initiate justice, then who embodies earned redemption and the path of restorative justice in this show? At first blush, the viewer may be tempted, like Fleabag, to find solace in the foul-mouthed Priest. Like Fleabag, he has his share of demons and darkness, but has turned to faith in God to steer him to a better path, and he uses that faith to help others. And again, like Fleabag, he’s still deeply human and makes deeply human mistakes. Reviews have made much of the way that the Priest sees Fleabag’s hidden asides and wants to better understand her dissassociative behavior that no one else has noticed. Being seen is a vital part of intimacy and the show is rightly lauded for its observations about this, but their relationship is not ultimately redemptive for either. Instead it is another abortive attempt to do better and a meaningful learning experience for them both. They can see and love one another, but in Fleabag, love is not the path of redemption for either party.
Somewhat surprisingly, it is Fleabag’s interactions with the Bank Manager that we argue exemplify the possibility of a cy pres approach to wrongdoing. In the opening scene of season one, Fleabag seeks a loan from a nameless bank manager. He quips that because of a sexual harassment case, his bank hasn’t had much opportunity to support female-owned businesses. After a sexually charged misunderstanding, he turns her down for the loan, she calls him a pervert, and he calls her a slut. At first watch, this interaction seems like another of Fleabag’s acts of self-destruction. But a chance encounter later in the season reveals that the Bank Manager was likely the perpetrator in the sexual harassment suit. In this encounter, he undertakes some early acts of restorative justice. He admits his wrongdoing—that he touched his colleague’s breast, more than once. He is eager to apologize “to everyone.” He recognizes the harm he inflicted wasn’t limited to his colleague but extends to his wife. Of course, this conversation might have been better made to his colleague and his wife, but it’s a good start.
By themselves, the Bank Manager’s admissions were laudable, but it is what happens after that really demonstrates both the possibility of cy pres and of earned redemption. After reflecting on their chance encounter, the Bank Manager unexpectedly shows up at Fleabag’s struggling café and learns more about why the café is so important to her and his loan denial so wounding. After Fleabag reveals profound vulnerability and her seemingly irremediable mistakes, the Bank Manager awkwardly exits the café- a pretty bleak perspective on the human condition and the ability to make connections. But the exit is only a brief moment of despair. The Bank Manager has actually gone to his car to retrieve Fleabag’s loan application and redoes their interview. We learn in season 2 that the loan was granted and Fleabag’s café is flourishing. While the bank manager doesn’t perfectly put Fleabag in the same position as when she first asked for the loan, he comes as close as possible. If it were a judicial remedy or true restorative justice, we’d need the Bank Manager to be undoing the harm he inflicted on his colleague, not to Fleabag. But much of his behavior suggests that he might be doing that—it’s a story that goes untold. And perhaps more importantly for Fleabag, he is showing her that even if mistakes and harms cannot be perfectly undone, recognizing them as such and trying to do better is valuable.
What really makes this such an intriguing example is that their ongoing interactions reveal something about the nature of earned redemption. The Bank Manager does not view his need to do or be better as completed by a single act. When he stops by, months later, to check on the café, he reveals that he has a new job and he has reunited with his wife. Unlike our feelings for Martin, the viewer is cheering for this relationship to continue. And the Bank Manager brings a gift that shows he was attuned to Fleabag’s needs—he brings a companion animal for her guinea pig. The Priest might have seen Fleabag, but it is the Bank Manager who really listens to her. And when, during the course of their conversation, Fleabag learns her sister is in deep distress, the Bank Manager offers to feed her pets and keep the café running, enabling Fleabag to run out to do a good turn herself. He offers an image of a man committed to learning from his bad decisions and to making better choices by engaging those he has injured and working with them towards a solution. Even though his #MeToo act was like Martin’s kiss in its lack of consent, the Bank Manager seems committed to becoming a better man, rather than demanding he be accepted for who he was.
So when we ask whether #MeToo offenders like Louis CK or Matt Lauer or Mark Halperin have done their time, we are focusing on the criminalized nature of their offenses. But in so doing, we might be focusing on the wrong question or at least ignoring some additional question. In order to determine justice in the civil, rather than the criminal, setting, we ask whether wrongdoers have put victims back in their preinjury position and when that’s not possible, if they’ve come as close as possible. Perhaps even outside of formal legal settings, we ought to be asking the same cy pres question.
