In writing this follow-up column about the possibility of #MeToo informed leniency letters, I need to grapple with Professor Joe Margulies’s related column urging a more forgiving society. He writes, “a forgiving society will not judge a person until it struggles to understand both the act and the actor in all their complexity” and at the same time to judge in a forgiving spirit “demands that the wrong be neither minimized nor exaggerated, neither sensationalized nor diminished.” I worry that in a legal setting, leniency letters written to help the judge understand sexual assaulters in all their complexity too easily fall into “himpathy.” In other words, they encourage the judge to overidentify and overempathize with the defendant, particularly if the defendant is white and otherwise privileged, at the expense of the judge sufficiently identifying or empathizing with the victim. I suggest that disentangling what is viewed as appropriate context to help understand the fullness of the defendant from tropes rooted in structural misogyny might be more difficult than Professor Margulies’s column acknowledges.
But before I jump in, I want to identify some areas of agreement. As Professor Margulies notes, sufficient respect for a jury’s verdict and for the wrong committed against the victim and the state does not require casting the defendant out from society. If the state is capable of and is in fact providing sufficient punishment, then I agree that shunning is not needed and risks significant additional harms. For instance, while I found David Cross’s defense of alleged harasser Jeffrey Tambor often fell prey to himpathy, I agreed with this point, “Jeffrey’s not the only guy I know accused of shitty, bad hurtful behavior. I don’t condone it, but it’s not like, ‘Hey I’m never going to talk to you again and I’m only gonna talk shit about you.’ If I had a family member who did something bad, I’d go visit them in prison. . . .’” But opposing shunning does not answer the question of whether and how a friend or family member ought to ask for leniency from the judge. (And of course, it also doesn’t answer the question of whether the state is willing and able to provide sufficient punishment—something many, including me, have questioned in the sexual assault context).
I also suspect that Professor Margulies’s column contains an implicit assumption (perhaps explored more in his book project) that the American carceral system is too punitive and imposes too many corollary harms. Among those harms which our society ought to take much more seriously is the significant risk of additional sexual assaults for those imprisoned. Yet one can have deep skepticism about the current carceral state and simultaneously believe that juries and judges are too reluctant to believe and respect survivors. Faulty innocent verdicts and inappropriately light sentences (particularly as compared to an otherwise default of appropriate or too heavy sentences) impose an additional harm on sexual assault survivors. Such verdicts conveying the harm and the worth of sexual assault survivors as less than other kinds of victims or than that of the defendant. (For a prime example, see Judge Persky’s justification for Brock Turner’s sentence discussed in my last column.) Moreover, leniency letters are not the place to make generic objections to the horrors of the American prison system. Booker demands an individualized accounting for the offender’s characteristics and explaining the pervasive faults of American incarceration does not speak to that end.
Despite a healthy amount of common ground, I disagree with Professor Margulies’s universalizing statement “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.” But perhaps he has not encountered Professor Kate Manne, whom I admire very much. She conceptualized “himpathy” which is the overempathizing with male wrongdoers at the expense of female victims. Professor Manne’s work suggests himpathy results in both a reluctance to believe female victims of sexual assault and a reluctance to punish certain kinds of men even when juries find them guilty. She explains that in a world with social inequality, “The[] naïve deployment [of empathy and understanding] will tend to further privilege those already unjustly privileged over others. And this may come at the expense of unfairly impugning, blaming, shaming, further endangering, and erasing the less privileged among their victims.” Himpathy can render the defendant understandable not as the whole person whom the judge should consider, but rather a potential victim whose further harm we ought to avoid and erase the actual victim of the sexual assault.
That brings us back to Ashton and Mila’s letters—could they have been written in such a way that they both help a judge understand Danny Masterson in all his complexity without also minimizing or diminishing the wrong of the forcible rapes he committed or the impacts said rapes had upon their survivors? More importantly, can future letter writers who take #MeToo and survivors of sexual assault seriously do so?
First, such a letter would need to meaningfully acknowledge the wrong done to the victim as well as any additional harm done by a sentence that fails to reflect the severity of the wrong and its impact on the victim. In other words, #MeToo-informed letters ought not to treat the harm to the victim as either non-existent or a sunk cost. One familiar trope in sexual assault cases is the notion that the victim has already experienced the harm and the damage is done whereas findings of fault or punishment inflict a new harm on the accused that ought to be avoided. His future is more important than what is seen as her past. Empirical studies of Title IX offices reveal this is a common misunderstanding among those with the power to punish sexual assaulters.
But why is such an acknowledgement important in a leniency letter written as part of a larger adversarial process in which the victim and the state have the opportunity to provide evidence themselves? I contend that grappling with #MeToo means recognizing that such harms have been historically undervalued and the importance of reinforcing those concerns even as one tries to paint a fuller picture of the defendant. Of course, letter writers might do so in a pro forma way or not at all, but part of the harm inflicted by Ashton’s and Mila’s letter is the way in which people who publicly committed themselves to preventing sex trafficking and other #MeToo-related harms failed to acknowledge survivors as victims when it involved their friend. I also think that a sincere letter writer, committed to Margulies’ ideal of a forgiving society, would find that contemplating and writing such an acknowledgment would both help restore due respect to the victim (something the defendant’s crime undermined) and could help shape the rest of the letter. In other words, the act of acknowledging the harm might serve to help debias both the letter writer and the letter reader—i.e., the judge.
Second, in giving the court a fuller picture of the defendant, letter writers must tread carefully to avoid the “only monsters are rapists” trope. Professor Margulies opines that letter writers “can insist [the convicted] is not a monster, regardless of what he may have done.” While I agree with that in theory, the implementation can be difficult. Many people believe that rapists are monsters and thus draw the inference if someone is not a monster, then he also cannot be a rapist. Under this logic, emphasizing the “good guyness” of the defendant might be a more subtle way (conscious or not) of trying to vindicate the defendant rather than reflecting his completeness. So while Professor Margulies notes that Mila’s and Ashton’s letters about Masterson’s anti-drug stance might have acted to undermine the verdict, I suggest other aspects of their letters such as the emphasis on his being a good father, good husband, and good friend to women might have done the same thing. Thus, the #MeToo informed letter writer ought to be careful to bear in mind that, as Christina Ricci put it, “people we know as ‘awesome guys’ can be predators and abusers.”
Moreover, the writer ought to consider whether and how the convicted might have deployed his good guy status to undermine the believability of the survivor. That is not to say that evidence of good character cannot or should not be presented, but that a #MeToo-informed author must be very careful to first consider whether that good character that the author knows is motivating a belief that a defendant is not guilty and second to make sure to cabin such evidence as a way to present a fuller picture of the defendant as both a good person in some respects AND a rapist. Too many letters now convey the sentiment that when sentencing that you should view the defendant as a good person who is a loving father, husband, and friend rather than as a monster rapist. I think a more #MeToo-appropriate sentiment is the defendant is not only a rapist, he is also a loving father, husband, and friend and then explain specifically why his various positive relationships with others and good character traits make him capable of rehabilitation and remorse as to the more negative relationships and bad character traits.
Perhaps surprisingly, I found one such possible start among Brock Turner’s letter writers. His friend wrote, “This letter is not intended to prove Brock’s innocence or to change the image of Brock that you have come to know, but rather to show you the Brock Turner that I know and the Brock Turner that all of [sic] people around him know/I am not writing to belittle anyone involved in this case or affected by this case, all I can do is show you the Brock that I have come to know and the Brock that I can proudly call my friend.”
Another trope #MeToo-informed letter writers should avoid is the notion that women are fungible. Even if the letter writer is able to testify as to the defendant’s good relationship with women and girls in his life without overtly or implicitly suggesting the verdict was wrongful, the letter writer must also avoid the implication that the mistreatment of the female victim ought to be weighed against all the other women that the defendant has treated well and that the latter cancels out the former. Or that the pain of the wife and daughter will feel if the defendant is punished harshly ought to cancel out the pain of the survivor if he is punished too lightly. Again, this is not to say evidence of such relationships cannot be introduced, but it must be done with great care not to undermine the recognition and importance of the survivor.
In conclusion, given our fraught history with good character evidence in sexual assault cases—from its admission on the merits in good soldier defenses to letters encouraging judges to implicitly reject the verdict, letter writers who care both about presenting the wholeness of the convicted individual and the insights of #MeToo must take great care to avoid the tropes surrounding American rape culture.