A second Dershowitz accuser recently came forward to say that Jeffrey Epstein trafficked and directed her to have sex with Alan Dershowitz. At the end of last month, I purchased a book by Dershowitz called Guilt by Accusation. The book, written before the second allegation, promised to be about the #MeToo movement and the downside of making it too easy to prove that a man has committed a sex crime. After reading for a little while, I concluded that the book was just going to be about the accusation (singular then) against Dershowitz that he had slept with an underage girl supplied to him by Jeffrey Epstein. Dershowitz offered up his own denials as well as descriptions of evidence purporting to show that he could not have committed the offense in question. I quickly despaired of learning anything about the “con” side of the #MeToo movement from Dershowitz’s book. Guilt By Accusation was no more about the downsides of the #MeToo movement than a book describing a bathrobe is about the clothing industry in the United States.
This column, however, is not a review of the Dershowitz book. It is, instead, an exploration of why people become as exercised about the #MeToo movement as they do. Whether pro or con, many tend to have strong feelings about this movement undertaken as a way of fighting predatory (and typically male) misconduct against (typically) women. In the column, I want to suggest that both sides of the debate rest their positions on contested empirical assumptions about the behavior of men and women, respectively. What we believe to be factually true of men and of women generally, as well as how we judge their respective behavior, will determine our conclusions about the #MeToo movement and about how best to handle the accusations of those who come forward.
#MeToo
Start with advocates for #MeToo and let us define the movement as one that aims to both stigmatize previously tolerated abuse and make it easier for women who accuse men of sexual harassment, rape, and related misogynistic offenses to see justice done to their perpetrators. One can fulfill these goals by treating accusers with respect and compassion, by protecting them against the use of their sexual history to slut-shame them or to establish consent, and by reducing the burden of persuasion that they must meet in their quest to see their assailants punished or made to pay for their alleged misconduct. Making the process easier and more likely to end in victory for accusers may, in addition to helping victims heal, encourage other complainants to come forward when they might otherwise have receded into the corners of their lives, suffering in silence. And perhaps most importantly, such endings may have a deterrent effect on those considering perpetrating (or continuing to perpetrate) such abuse.
#NotAllMen
The #NotAllMen movement is complicated, and I do not wish to provide a complete analysis of what men mean when they say that not all men are rapists or sexual harassers, etc. Some may intend it as a (perhaps poorly understood) statement of support: don’t worry, they say; many of us men are on your side and want to join in your feminist battles out of an authentic commitment; we don’t all tolerate the misconduct of our fellow men.
#NotAllMen might, alternatively, have a different meaning. Some members may resent the possibility that people will, at least as an initial matter, believe a woman who accuses them of misdeeds. It may be true that most perpetrators are men, they acknowledge, but that doesn’t mean that most men are perpetrators. Women ought to stop acting like all men share collective guilt and responsibility for what a small number of men do. That is, I think, how people understand the #NotAllMen meme much of the time, as a kind of public relations gesture that shifts our focus from victims of abuse to victims of guilt by association.
Those who express concerns about and anticipate a slew of false accusations and the damage they might do to innocent men are often making a factual assumption. They are assuming that a significant number of accusations are false. In other words, they believe that the odds of a false accusation are relatively high. To bolster this assumption, some say that rape and sexual assault and other sorts of anti-female violence are extremely infrequent. When an event occurs very infrequently, then whatever test one applies to identify the event’s occurrence will yield more false positives than it would have yielded in a population in which the event was very common. This is one of the reasons that some early HIV tests were recommended only for people from high-risk groups. If low-risk individuals had taken the test, we would have wound up with many false positives (i.e., incorrect HIV-positive diagnoses).
Within an educational setting, claims of gendered abuse frequently arise under the rubric of Title IX of the Education Amendments of 1972. In the process of evidence gathering for a Title IX proceeding, a woman’s word becomes a kind of diagnostic tool for identifying male misconduct. Within the context of education, to believe a woman’s accusation against some college or graduate student in a universe of highly infrequent misconduct is to invite the likely conviction (or its equivalent) of an innocent man. If, on the other hand, the misconduct is relatively common, then the odds of a false positive diminish, and we maximize conviction of the guilty. The statistic that some on the “pro” side of the debate cite is that one in four or one in five women in college experience a sexual assault. Outside of college, advocates suggest, the numbers may be even higher.
Apart from the question of how men (though not all men) behave, a second behavioral question in need of resolution is how frequently women lie about being sexually harassed, assaulted, raped, or otherwise harmed by a man? Like the frequency of misogynistic misconduct, we want to know how often women lie about men. If it happens very often, then the accusation that such lying has occurred is more likely to prove accurate than it would be if it happened less frequently. The woman’s word is sometimes the main (or the only) evidence that the man committed misconduct against her. If false accusations occur very frequently, then the woman in a particular case is more likely to be lying. Comparing the frequency of male (abusive) misconduct and female (lying) misconduct is thus critically important to the validity of the respective assumptions among the pro and con camps.
A Tension
In thinking about male and female behavior in statistical terms, it is worth dwelling on a small paradox. Consider the words of Heather MacDonald, Thomas W. Smith Fellow at the Manhattan Institute and no fan of #MeToo. Of the frequency of sexual violence, she says the following: “it’s a lonely day, working the phones at the college rape crisis center.” McDonald maintains that rape and sexual assault are quite infrequent on college campuses. For good measure, McDonald mocks the phrase “rape culture” as invoked to describe an atmosphere that tolerates the abuse of women.
And yet a common refrain when it comes to the abuse of women is that “boys will be boys.” (BWBB) The suggestion is that the allegedly abusive conduct complained of is quite common among men, so much so that it is no more than normal boys being boys. Few are likely to say this about rape or assault and battery (though some do). But physical violence that falls short of this or verbal abuse that might qualify as sexual harassment or repeat malicious cruelty could fall into the BWBB category. The factual predicate of the #NotAllMen meme is in some tension with the BWBB idea because the first says it is limited to a small group of men while the other says it pretty much defines what it means to be a man.
Despite the logical tension between #NotAllMen and BWBB, the two memes can be deployed, perhaps disingenuously, in tandem. The two positions could then work together, in a heads-I-win-tails-you-lose strategy to undermine any claim. Either the alleged conduct strikes people as legitimately terrible, in which case #NotAllMen will deny that this is a problem found among more than just some “bad apples.” Or the claim is of more familiar misconduct, in which case BWBB comes in to say that the behavior in question is normative. How can lots of men be engaged in conduct while we insist on calling the conduct “bad”? Bad requires deviance, doesn’t it? and the statistically normal is by definition not deviant.
What’s To Stop…?
Framing the complaint of #MeToo’s opponents, which might include some members of the #NotAllMen movement, they are asking what is to stop a woman with a grudge, a woman who perhaps misses the attentions of a particular man, from bringing a false complaint against him? As the proverb adapted from The Mourning Bride by William Congreve says, Hell hath no fury like a woman scorned.
One answer to this “what’s to stop” question is that a woman’s conscience will stop her from bringing a false complaint of gender-based misconduct or violence against the man who rejected her but did nothing more. Women can express their anger and sorrow in legally permissible ways and need not commit the serious misconduct involved in leveling false accusations. Most women would feel like they cannot tell lies of this sort without feeling very guilty. And those whose lies were discovered would likely face sanctions.
If the purpose of making it difficult to bring or to succeed in a claim is to protect men against lies, in other words, extreme skepticism is unnecessary. Women can be inspired to tell the truth by a combination of their conscience and the penalties, both social and legal, attached to bringing a false complaint. People therefore need not come to the table with heightened skepticism relative to how we regard other sorts of claims.
The measures to address lies are also not always enough. Cross-examination will not prevent liars from coming forward, for example. Liars are comfortable lying no matter how adversarial the environment and no matter how skeptical the factfinders. It is often people telling the truth but feeling nervous of confrontation that falter under scrutiny. As in criminal cases, an eyewitness to a crime, including the victim, can testify about what allegedly happened to her. If she has invented the story with foresight, then she may survive the crucible of cross-examination better than a truth-telling but unpracticed witness. As in most areas of life, we cannot escape the need to be able to trust in one another’s responsiveness to conscience and the law.
How to Proceed
I am not deluded enough to think that I have the answers to the questions raised here. I would suggest, however, that we (typically) have two parties whose behavior should concern us, generally that of a man and that of a woman. To propose that the #MeToo problem is that we are too credulous when a woman complains of harassment or worse is either to trivialize the significance of gendered abuse or to simply treat every alleged victim as presumptively lying (or both). Gendered abuse, cruelty, and violence are serious and ought to be treated as such. And as I have argued elsewhere, the presumption of innocence does not require a presumption that a complainant is lying. Many people make the logical error of believing that it does, that unlike every other criminal or criminal-like case, jurors must do more than just suspend judgment until they hear the complainant’s testimony; they must go in fully expecting her testimony to be false and listen to the testimony through that filter.
At the same time, we must be mindful of the possibility of dishonesty on the part of a complainant, just as we are when dealing with any other witness. While talking to a witness, police officers and other investigators and factfinders ought to treat the person respectfully and believe him or her until some reason not to surfaces. When there is no reason for a complainant to invent stories of abuse, we ought to consider this lack of motive in assessing the complainant’s credibility. The accused, of course, has an incentive to say, “I am innocent,” regardless of where the truth lies, so assessing his credibility may call for a closer consideration of baseline frequencies of the misconduct charged.
I hope it is possible for people on either side of the divide to understand the fears of their adversaries. Just as rape and assault are grave wrongs, bearing false witness is also a grave wrong. If we can agree on these basic propositions, then we might be able to evaluate individual cases in a manner that increases our chances of getting at the truth.