What Precisely Did Ashton Kutcher and Mila Kunis Do Wrong?

Posted in: Criminal Law

As you may have seen, Ashton Kutcher and Mila Kunis wrote character letters in support of their friend and fellow actor, Danny Masterson, who had been convicted of raping two women at his home in 2003. When the letters became public, Kutcher and Kunis were attacked on social media. In response to the criticism, the pair released a video in which they apologized and said they had not meant “to undermine the testimony of the victims or re-traumatize them in any way.” They also said they had thought their letters would be for the judge’s eyes only. Kutcher then resigned from the board of an organization he co-founded with the actor Demi Moore that worked to end child sexual abuse.

From the perspective of a forgiving society, what exactly did Kutcher and Kunis do wrong? Is it a mistake to write anything at all in support of a person convicted of rape, as a great deal of coverage seemed to imply? Or does the error have something to do with the particulars of what they wrote? From the voluminous coverage, a reader would be forgiven if they couldn’t say. But the answer matters, and the confusion tells us a great deal about the challenge of creating the world we want to inhabit.

What did they write? You can find all the letters submitted on Masterson’s behalf here. They’re not long and I encourage you to read them in full; as I have explained elsewhere, a forgiving society does not judge until it first endeavors to understand, so it is important to unearth and consider information of the sort presented in these letters. Like others who wrote, Kutcher and Kunis celebrated their friendship with Masterson over many years, praised his character and good works, lamented the tragedy of separating him from his daughter, and implored the sentencing judge to be lenient. This is the bread and butter of character letters and wholly uncontroversial. If anyone believes it is a mistake to write something like this on Masterson’s behalf—as though it were a sin even to associate yourself with someone who has committed a horrible wrong—I strongly disagree. Such a view parrots and reproduces the viciousness of the unforgiving society.

But that was not the whole of what they wrote. Other language appeared intended to cast doubt on the jury’s verdict. The prosecution alleged—and the jury agreed—that Masterson raped both women after drugging them in his home, a charge Masterson denies. In their letters, Kutcher and Kunis described at length Masterson’s vehement opposition to drugs and drug use. The apparent purpose of this commentary is to imply that the victims were either lying or mistaken, that Masterson is innocent, and that the court should be lenient in part because of doubts about the verdict itself.

It is this second part that crossed a line. Of course, Kutcher and Kunis are free to believe that Masterson is innocent. As a personal matter, no one is obligated to accept any verdict. And, like any convicted defendant, Masterson has a right to challenge his conviction on appeal and in post-conviction proceedings; Kutcher and Kunis can support that challenge in a variety of ways. Indeed, they can even go public with their views. They can say to the world, “Danny Masterson is our friend. We know his heart, and we know he would never do what he has been convicted of doing. We stand with him, and we always will.” That is a principled, courageous position they are free to take.

But what they cannot do is encourage the judge to disregard the jury’s verdict. Absent legal error, a judge has no power to set aside a jury’s verdict and she certainly cannot say that the jury got the facts wrong. Though Kutcher and Kunis don’t have to agree with the verdict, their letters have to start from the premise that the jury got it right. That’s why we have juries. Even less can they try to persuade the court on the down low. They can stand with Masterson on a hilltop but they cannot whisper in the judge’s ear.

But that is only part of the problem with their letters. I have often insisted that society should judge transgressors in a spirit of forgiveness. But to judge in a forgiving spirit does not mean closing our eyes to unpleasant facts or pretending they do not exist. Social forgiveness, in other words, is not a whitewash. Far from it. Society can and should hold wrongdoers accountable. But in a forgiving society, accountability presupposes compassionate understanding, and a forgiving society will not judge a person until it struggles to understand both the act and the actor in all their complexity.

To judge in a forgiving spirit demands that the wrong be neither minimized nor exaggerated, neither sensationalized nor diminished. As many prisoners have said to me when reflecting on their past, “What happened, happened.” The crime exists as a brute, unalterable fact. They cannot undo it and will never forget it. But they, and all of us, can endeavor to understand it, which means struggling to make sense not simply of what happened, but why. That is what it means to judge in a forgiving spirit. The effort to understand why one of us has done something horribly wrong, and to accept that while the wrong may cost them their liberty, it will not deprive them of their membership in society, is the act of social forgiveness.

So yes, Kutcher and Kunis can plead for social forgiveness, and if Masterson is their friend, they should, and they should do it publicly—or so I would argue. They can urge the court to understand the man who stands before it, and to grapple compassionately with the complexity of Masterson’s life. They can insist he is not a monster, regardless of what he may have done. But they may not urge the court to diminish the wrong that occurred and the harm the victims have endured. That is not social forgiveness; that is not a struggle to understand; it is a refusal to accept.

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When I tell people that I am writing a book that takes aim at our unforgiving society, they are invariably enthusiastic and agree that as a society, we are appallingly quick to cast people out. In fact, I have never met anyone who says I have it backwards and that society should be more unforgiving. No one says that empathy and compassion are overrated and that we should harden our hearts even more than we already have. No one says we should make even less effort to understand those who transgress. At least, no one whose worldview we admire and emulate.

The problem is we do not create a forgiving society in the abstract; we create it by adopting a forgiving attitude toward very particular people who have done very particular things, and sometimes those things are simply godawful. The question is not whether we would all like to be transported, magically, to a land that is more forgiving than our own. The answer to that question is a resounding yes. The question is whether we are willing to do the hard work it takes to get there. That question has yet to be answered. Kutcher and Kunis discovered that the challenge is more difficult than they might have thought.

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