Court of Public Opinion

Author’s Note: At the time of this writing, Al Franken was the most recent high-profile person accused of sexual assault. Since then there have been too many to keep up with, and I suspect that trend will only continue. I ask that you keep that in mind as you read, both in terms of the immediacy of my commentary, and as you reexamine your place on the court of public opinion.

Needless to say, these are crazy times. Donald Trump is still President, Blake Shelton was just voted Sexiest Man Alive, and Burger King just schooled us all in human decency—we’ve truly gone through the looking glass.

Let’s call it the Weinstein Effect. While sexual impropriety by those in power is a tale as old as time, after the news broke about Harvey Weinstein, more people are coming forward not only with allegations against Weinstein but with other tales of exploitation, abuse, and harm done by those in positions of power. Moreso, victims are being believed.

Consider how much longer it took for public opinion to believe Bill Cosby’s accusers than say...Kevin Spacey. (One could conceivably insert any one of many beleaguered public figures currently standing accused of sexual impropriety here). According to Rolling Stone, nearly 60 women have now come forward to make allegations against Cosby, yet the first charges were levelled at the comedian over 30 years ago and seemingly ignored by the general public until recently.

In comparison, the court of public opinion has moved swiftly against Spacey. Hoping to keep public opinion on his side, Spacey issued an apology—one that was highly problematic in itself and heavily critiqued—the day after actor Anthony Rapp accused Spacey of making inappropriate sexual actions against a minor (at the time, Rapp was 14, Spacey 26). Since then, more men have spoken up about their own experiences with the actor, and retaliation against him in the court of public opinion has been swift.

Everyday, more and more people are telling their stories. Maybe they’ve been told before, but America now seems ready to listen. #MeToo is not only a trending hashtag, but it’s also a heartbreaking acknowledgement of how sexual harassment and assault permeates American culture—not just in Hollywood and political spheres but throughout all levels of society. As a movement, #MeToo shows victims that they are not alone, giving victims the confidence to speak up because there’s now hope that they will be believed. Similarly, it’s hard to ignore the numerous social media posts when it seems that so many women have a #MeToo story. Since the Weinstein allegations came to light, at least 30 high-profile men have been accused of sexual misconduct, and most of them have experienced serious repercussions beyond criminal complaints.  

This is good. This needs to happen. Society may finally be experiencing a seismic shift away from rape culture. Women are finding their voices, victims are not being painted with stigmas and are being believed rather than blamed, and consent as a concept is becoming more widely understood and taught.

We throw words like consent and rape culture around so casually these days, but what do they really mean? For me, I want to see a world where no woman has at least one story about how she was lewdly catcalled while walking down the street, where no woman is groped while posing for a photograph, or has her wardrobe choices called into question because it might mean she was “asking for” the unwanted sexaul attention she received. (I’m looking at you, Mayim Bialik and Angela Lansbury...jesus, I can’t believe this is still a thing!!)  I want a world where the only sexual attention a woman receives is that which she explicitly invites or gives her consent to. (I am using women here as the primary sufferers of rape culture because they are statistically abused more than men, but men can and are victims of rape culture too.) I don’t want it to be even a possibility that a minor would be forced to marry her rapist. Please visit www.consentiseverything.com if you’re still confused. Do it right now. Then come back and finish reading this post.

I want rape culture to end for both men and women. For too long, society has endorsed toxic masculinity and the idea that men must dominate and control through tactics that are demeaning and damaging to the other party. Men shouldn’t be encouraged to act this way, and women shouldn’t have to tolerate it as a price that they pay for being women.

However—and I strongly dread being the person to say however—I do not want our zealousness to end America’s long tradition of “innocent until proven guilty.”  I thought long and hard before starting to write this column, afraid that what I’m going to say will be taken the wrong way. I want to be very careful and very clear, and I cannot overstate enough that anyone brave enough to speak up about their own sexual assault experiences deserves to be listened to with respect.

Nevertheless, I am uncomfortable with Kangaroo courts—or those too quick to prosecute without evidence, and I feel strongly that the punishment must fit the severity of the crime. At the core of my hesitation is how quickly those accused of minor sexual misconduct have been met with vehement assertion that their actions warrant the same punishment as someone accused of major violations.

Before we get too far into this, the US Department of Justice defines sexual assault as “any type of sexual contact or behavior that occurs without the explicit consent of the recipient. Falling under the definition of sexual assault are activities such as forced sexual intercourse, forcible sodomy, child molestation, incest, fondling, and attempted rape.” While all of these things fall under the umbrella term “sexual assault,” common sense tells us that that rape is more serious than over-the-clothes fondling, and one would hope that the judicial system sees it the same way.

The court of public opinion should (but doesn’t) apply the same critical thought, and that’s of concern to me.  

For example, all of the current discussion of the allegations against Senator Al Franken (D-MN) seem to compare Franken’s actions with those of Senate candidate Roy Moore (R-AL), a comparison that makes it clear that the court of public opinion may be incapable of distinguishing the level of severity between separate sexual assault cases. What both men are accused of is inexcusable, but one cannot in good conscience place Franken’s actions on the same level as those alleged against Roy Moore. The latter has demonstrated repeated predatory behavior involving minors, while the former may be guilty of actions that society once, not that long ago, deemed “acceptable for comedic effect.”

I worry that the pendulum of how we treat allegations of sexual harassment may swing too far in the other direction. I’ve brought these thoughts up in online discussions and was swiftly labelled a rape apologist. That type of knee-jerk reaction to anyone who dares to carefully ponder the facts regarding specific sexual assault cases is flabbergasting. Before victims did not speak up for fear of being called liars...but are we now in jeopardy of assuming that all accused are guilty and should not have the right to defend themselves? Will every infraction be treated as unforgivable? I honestly don’t have all the answers, and simply writing this piece raises more questions than answers.

Again, please do not misunderstand my stance on this topic. I consider myself an ardent feminist, bleeding-heart liberal, and champion of too many social issues to count. I am the snowflakiest of your SJWs, but I’m also a skeptic and a critical thinker. I feel that believing victims does not mean that we should never question the veracity of their claims. I do not want sexual misconduct to be swept under the rug, as it has been for way too long, but I want to find a way to make certain that society’s actions moving forward do not violate the right to a fair trial.

I realize that victim-blaming and shaming have meant that so many of these cases are outside the statute of limitations and will never see a day in court, and more than once, our courts have failed rape victims. Thinking about the high profile case against rapist Brock Turner, who was only given six months in jail, makes me understand exactly why many people are giving no quarter to anyone accused of sexual transgressions. But if the judicial system isn’t the answer, what is? At least the courts have precedents. Public opinion has whims and is distracted by the latest news story.

I am struggling to balance my dislike of the court of public opinion with the knowledge that something needs to be done to stop sexual harassment and assault in all its forms. Some have told me that because I’m a Democrat and Franken’s “one of our own” that I can’t believe he’d ever do anything wrong.

No.

I’m insulted by anyone who insinuates such, as any honest, fair-minded individual should be. I see differences between these cases. I keep coming back to the idea that a pattern over time with many women is what makes the behavior dangerous and predatory. One isolated incident of a man being a jerk to a woman may mean he’s part of the culture that we’re finally working so hard to change. It doesn’t make what Franken did ok or excusable, but it maybe means if he’s willing to learn and grow (and seemingly already has since these incidents happened some years ago), that we treat him differently than the Roy Moore’s of the world.

If you want to dig into this example further, the account of Leeann Tweeden, (the woman who in mid-November accused Franken of an assault that occurred during their 2006 USO tour) is a vastly different story and set of facts than the ones told by the numerous women who have accused Moore, Cosby, Weinstein, etc. In the latter cases, clear evidence shows a long history and pattern of sexual assault with several victims, none of whom have political bias or anything else to gain by telling their stories. Whereas in the Franken case we have a single account from a woman who is regular Fox News contributor and guest on shows such as Hannity. Are those facts not important to the context of the case?

The photographic evidence shows that, yes, Franken did act as if he was fondling the breasts of  a sleeping woman (who cannot consent because she’s asleep) over her clothing and tactical gear. That picture perfectly illustrates the idea that what society used to see as juvenile humor is actually the gross disrespect women have complained about for years. It’s only recently that society has stopped dismissing this behavior as “boys being boys.” Unfortunately, that means that entire generations of men were taught that their sexual pursuits are more important than a woman’s right to control what happens to her body. I am not apologizing or justifying Franken’s actions, but the court of public opinion is failing to take nuance into consideration here.  

And what about the person taking the picture? There was a second party complicit in the act of photographing that woman, and they thought it was okay too. Will they be punished as well? So far, I see little evidence that they will be.  I think that society as a whole used to (wrongly) dismiss these types of actions, and only now is bodily autonomy being given due respect. To be blunt, since society has not previously reacted to the report of a grabbed ass so severely, we can’t feign shock and resentment now.

Contrast the specifics of the Franken allegations to a middle-aged man propositioning a minor, drugging a person in order to have sexual contact with them, or a man outright whipping his dick out when no one else wants to see said dick. No one can claim they didn’t know those things were wrong regardless of the time period in which they occurred.

If someone took that picture today, in 2017, I’d say they should know better. Just a few years ago we weren’t having the same conversations about consent and even casual contact with other individuals’ bodies that we are having now, so it’s slightly unfair to crucify someone for being part of that culture that we used to not care about.

Particularly with the Franken allegations it feels like we are overreacting to make up for past apathy. That feels dangerous to me, and more than ever it’s why we need to apply careful, critical thought to the allegations we are leveling so swiftly at people these days. The photograph of Franken was a “joke” that should not have been made, but I still find it very hard to have Franken’s actions compared with the pedophilia of Moore and Spacey.

Even the more recent report of a woman who claims Franken grabbed her ass during a photo op at the Minnesota State Fair doesn’t lend credibility to the first woman’s account, which seems wrought with political bias. However, the second account speaks to the culture as a whole that needs to change. This action, while not as detrimental as other instances of sexual assault, is still incredibly wrong, gross, and dismissive of bodily autonomy.

Unfortunately, many people in this country haven’t been able to understand this concept until recently. Franken is not the only ass-grabber out there, as even President George H.W. Bush has been accused of similar actions in recent weeks. While it may be because Bush Sr. is not an acting politician, or due to his declining health or the fact that his legacy is seemingly untouchable at this point, the uproar present in discussions of Franken’s transgressions are largely missing from talk of the former President’s actions. Instead, the elder Bush’s actions are mostly mostly viewed as those of a “harmless” and/or “senile old man.” The court of public opinion can’t even decide that it feels the same way about two very similar cases, and yet we are supposed to let it decide the fate of ALL accused of sexual assault?

I have zero doubt in my mind that, going forward, most men will now think twice about casually grabbing a woman’s ass in any situation without her consent. It’s not “boys will be boys,” or “meant as a compliment” or “not a big deal because it wasn’t ‘real’ harassment.” I think the Franken incident is a perfect example of a male in a privileged position taking advantage of the situation for his own perverse desires. I hope Franken is embarrassed and disturbed by his behavior. And I agree with his own call that the Senate Ethics Committee should investigate his actions and then provide an appropriate call for punishment because I think that will give us a much more accurate picture than the one the court of public opinion is now using to pass judgement. Again, being ignorant of a crime is no defense against punishment, but there is certainly a difference between someone who thought they were playfully grabbing an ass and someone who willfully commits sexual assault.

If more women come forward with reports of further transgressions against Franken, how I view the facts will change. That would be a clear pattern that lends credence to the first account.  I’d say the same thing if it was Roy Moore; if only one person came forward to say they were underage when Moore propositioned them, I’d want to see further evidence and/or corroboration of the accuser’s story before crucifying the accused. I don’t want to discredit single sexual assault claims, but I do believe it’s important to get all the facts.

Note: Since writing this, more women have indeed come forward and the numerous accusations seem to suggest that Senator Franken has made a habit of using his position of power to inappropriately touch women. I stand by my claim that this is not in the same realm of severity as Roy Moore’s or Kevin Spacey’s alleged pedophilia, but I do think there is a clear pattern to the Franken accusations that suggest he has much to answer for and should possibly be removed from his position of power and influence. I await the Ethics Committee’s findings.

But I’m not supposed to say that out loud, at least that’s how it feels. Because society has for so long dismissed women’s claims of sexual harassment and assault, we are now automatically casting judgement on the accused as guilty before all the facts are known. Somehow the idea of wanting to weigh the facts and the totality of evidence is now looked at as an abomination akin to slut-shaming. I know many were calling out Republicans for saying “if it’s true,” but the Wait and See model may be fairer. I want justice, and the court of public opinion rarely gives us that. I just don’t know what the better system is.

This is an incredibly fine line to walk. I get that, I really do. There must be a way to investigate these accusations without dismissing the victims in any way and without handing down premature or unfitting punishments. Even if guilty, not all crimes are equal; not every culprit deserves to have their life ruined over their transgressions. Some can apologize, learn from their mistakes, and be rehabilitated as a much better and more aware person.

So far, the reactions to revelations of sexual assault have been fair. With Weinstein and Spacey, for example, the evidence was so overwhelmingly indicative of dangerous, predatory behavior that they faced the consequences in terms of loss of employment and social stature. Moore, because of the amount of evidence against him, should drop out of the race. If the evidence against Franken mounts in the same way, his constituents can and should vote him out as consequence of his actions, or he should resign.

With all of this in mind, it’s still unbelievable that all the evidence showing Donald Trump bragging about how he used his celebrity to do whatever he wanted sexually to women was not enough to block him from the presidency.  Remember: Trump also has been accused of rape and sexual assault by over fifteen women.  Again, the court of public opinion doles out punishments inconsistently.

We are definitely reaching a tipping point in this country, one that should have happened long ago. I definitely don’t claim to have all the answers, but I am going to preach the use of judicious critical thinking. Predators should be punished and expelled from their places of power, but I’m concerned that this trend of “burn ‘em all” in terms of alleged sexual harassers may leave a stark wasteland behind us. That may be necessary when all is said and done, but I want us to get that point only after careful consideration of all the evidence.