The devil is in the details of the #MeToo Movement

Friday, February 02, 2018 

The #MeToo Movement, a cause so noble in its aim of correcting the historical abuse heaped on women, should never have become mired in the controversy that now threatens it.

But it did, the day that some of the movement’s proponents and publicists overstepped the boundary between “MeToo” and “YouToo.”

It’s the boundary that recognizes the divide between fingers pointed in all directions and a finger pointed in the right direction. It’s also the boundary that recognizes the difference between systemic fault and individual culpability. It’s the human sentiment that understands that the wrongs inflicted over time by a society that should have known better are not properly assuaged by disproportionate consequences or abandoning due process in individual cases. It’s the finely honed sense of justice that recognizes that supporting victims of sexual misconduct is not inconsistent with seeking truth.

Finally, it’s a boundary that Toronto Star columnist Heather Mallick overstepped when she wrote, in a recent column about the movement, that “I don’t want to hear from men, especially older men, on this subject unless it’s supportive.”

Mallick’s comments, it seems to me, run in the same vein as the criticism directed at Marie Henein, the Toronto criminal lawyer whose brilliant representation produced former CBC broadcaster Jian Ghomeshi’s acquittal on sexual assault charges. How strange it must seem to these critics that Henein, criticized for daring to be a woman who defends men accused of sex crimes, now represents the Toronto actress who is suing Harvey Weinstein for two alleged sexual assaults.

Let me be clear, especially because I’m an “older man” who is plainly a member of Mallick’s prohibited class. My point is simply that the people who are taking a broad-brush, guilty “when” charged, no punishment is harsh enough approach to sexual abuse issues are risking the MeToo movement’s momentum, if not its credibility.

Nor do I believe that there is a “range” as to what is “inappropriate.” What’s inappropriate always has the potential to be, and often is, harmful. But that doesn’t mean that everything inappropriate is criminally or civilly actionable or that we shouldn’t examine allegations of “inappropriateness” with care, especially before imposing punishment.

That said, “inappropriate” is a charge that is too often lacking definition or particularity. That’s important, because frequently, it’s all in the context: is an “inappropriate” remark made by an employer “inappropriate” in the context of a relationship? Of course not, or at least not always.

To those missing the point, I’m not talking about Weinstein and his ilk of predator. As they say in the profession, “hard cases make bad law.” In other words, be careful what you treat as precedent, especially where complex human dynamics come into play.

The nuances involved are keen. We should be grateful, for example, to the New York Times and the New Yorker for deciding that repeated allegations of similar predatory conduct justify publishing allegations of sexual misconduct. Otherwise, we’d be stuck in the “her word against his word” trenches forever, with no prospect of progress or justice.

It’s true that the law does not always admit “similar fact evidence.” But that’s in criminal cases, where due process reigns supreme, as it should. As I said earlier, however, not all cases of sexual misconduct are criminal. Some amount to harassment that gives rise to civil liability, some justify other sanctions like dismissal or suspension, and some involve momentary errors of judgment. We should strive to eliminate them all.

At the same time, we need to recognize that they’re all different and that the standards of proof and the sanctions imposed should likewise vary. Ghomeshi, after all, may not be in the clink, but he lost his job and his reputation. The investigator hired by the CBC who wrote the report that resulted in these consequences clearly applied a different standard of proof than the judge who acquitted Ghomeshi. Again, that’s how it should be.

I have no problem with the outrage; we probably need more if the systemic abuses are to be eliminated. But outrage is a consequence of the way we’ve treated women, not a justification for the way we treat the accused.

The difficulty is that the heat of outrage can confuse. The press and others compound this by routinely failing to distinguish properly between abuse, harassment, misconduct and inappropriate behaviour. It’s hard to escape the inference that anyone accused of any of these should at least lose their job or their genitals. In this frame of mind, it’s not a huge leap to confusing allegations and guilt.

Once, again, the devil is in the details. That’s all I’m saying. Supporters of MeToo, like everyone else, ignore them at their peril.

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