SEX, LIES AND VIDEOTAPE

SEX, LIES AND VIDEOTAPE

We are in, I am told, a "moment."

"Moments" are today's version of what was once called a "hinge of history," a turning point.  They signal the end of one era and the beginning of another.  Some are clear at the time -- the dawning of the atomic age in 1945, the fall of the Berlin Wall in 1989.  Some only become clear years later as consequence follows event -- the stock market crash in 1929, the Dodgers signing Jackie Robinson in 1946.  And some . . .

Turn out not to be moments at all.

Over the course of the last few months, the ostensible moment that is America's current focus on the sexual harassment of women has emerged, phoenix-like, from the ashes of Harvey Weinstein's loathsome career as a serial abuser.  Since then, dozens of  men have been outed -- actors, producers, politicians, publishers -- spanning all ages and races and regions.  The "outings" themselves have not been the "news."  Outings have occurred many times in the past, and often been characterized as pivotal -- think Anita Hill and Clarence Thomas and 1992's ostensible "year of the women," when five women were elected to the US Senate.

This moment, however, is not about outing.

It's about believing.

Because the central -- and different -- feature of sexual harassment, circa 2017, is that . . .

The women are being believed.

They are presumed to be telling the truth.

I am trained as a lawyer and know a lot about "presumptions."  They are part of an attorney's stock in trade and come in many shapes and sizes.  The most famous is the "presumption of innocence," that bedrock principle of criminal law that presumes the accused innocent until found guilty beyond a reasonable doubt.  Because it is the most famous, and operates to shield the guilty as well as the innocent, it is often hijacked into political and cultural disputes, including disputes about sexual harassment.

But, as any good lawyer knows, it is not the only presumption at work in the world imposed on anyone who walks into a court.

There are a whole host of evidentiary presumptions, rules that establish what the facts are at a certain point in the process and then place the burden of contesting them on those who claim they are false.  These rules operate in large swaths of substantive law.  In antitrust law, anti-competitive effects are presumed from certain mergers. In immigration law, there is a presumption that one who commits an expatriating act does so voluntarily. The object falling from a high window under the defendant's control creates a presumption that the injury to the passer-by hit by that object was caused by the defendant's negligence. Ditto the surgical instrument left in the patient; the doctor is presumed negligent in leaving it there.  And in cases of racial discrimination, there are presumptions that require those who would dispute racial animus produce proof once apparent evidence (e.g., statistical realities) of discrimination has been introduced.

Something of the same sort has now happened to the issue of sexual harassment in the court of public opinion.

And here's the rub, boys.

There's nothing wrong with this.

Presumptions mirror common sense.  They allow us to accept as true what we all essentially know to be true, or far more likely to be true, anyway.  They save us both the time and the burden of confirming the obvious.  And they advance justice in cases where the burden of actually finding that confirming evidence is onerous but the failure to move forward would be unjust.

This last feature is most important in cases of sexual harassment.

Because . . .

If a serial harasser accosts his victims in private, and leaves no incriminating DNA evidence, there is really no absolute way to determine who is telling the truth in the subsequent "he said, she said."  If, however, that serial abuser has harassed a dozen others, all of whom come forward, how likely is it that they are all lying?

The counter-argument, of course, is that innocent men will be caught up in some sort of analogue to the "red menace" dragnet of the 1950s, that accusations will suffice, lies will be accepted, and lives will be ruined.  This is a risk.  Especially in politics, where partisanship courts both hypocrisy and a cold acceptance of the destructive effects visited upon one's opponents.

The risk, however, is small.

As last week's events more than clearly prove.

Roy Moore is the Republican Party nominee for the US Senate in Alabama.  To date, he has been accused of sexually molesting both a fourteen year old and a sixteen year old when he was in his thirties, and of having attempted to date numerous teenage girls during the same period.  All of the girls, now grown women, have come forward to report their encounters.  Moore has denied the molestation claims and been vague on the others, admitting to having known some of the girls and to having dated very young ones.  He has also stated that he never dated a teenager without first asking permission from the girl's mother. 

Al Franken is a Democratic Senator from Minnesota.  In 2006, while on a USO tour to entertain American troops, he took a picture in which he appears to be fondling the breasts of another member of the tour, Leeann Tweeden.  Ms. Tweeden also reported that, in a rehearsal of a skit the two were to perform on the tour, Franken forcibly kissed her and stuck his tongue in her mouth.  Though Franken has stated that he does not recall the rehearsal the way Tweeden does, he also said that didn't matter. He unequivocally admitted that taking the photo was wrong and that he was ashamed to have done so.  He  apologized to Tweeden, both publicly and in writing, and has asked to meet her, where he will presumably do so again in person.  He also asked the Senate Ethics Committee to investigate him and it will do so.

Donald Trump is President of the United States.  In last year's campaign, a tape was made public from an "Access Hollywood" episode in which he was featured.   In that tape, Trump boasts to Billy Bush that he, Trump, the owner of a beauty pageant and then host of "Celebrity Apprentice," often kissed women without their permission and, as a television star, could get away with anything. As he put it, "when you're a star, they let you do anything," including "grab 'em by the pussy."  After the tape was made public, a dozen women came forward to report that Trump had molested or harassed them. Trump said all of them were liars, and last week his press secretary, Sarah Huckabee Sanders, repeated that defense.

We are now in a world where all these women are presumed to be telling the truth.

Are any of these men being unfairly accused?

Franken is not claiming innocence but Moore and Trump are.  Neither, however, is.  In Moore's case, the number of accusers on either molestation (two) or cruising for teenagers (seven) is supplemented by contemporaneous reports of the molestation and by contemporaneous reports of Moore's habitual come-ons to teenagers in a mall.  With Trump, his own words in the Access Hollywood tape constitute stark admissions and many of his accusers told friends or family of the abuse at the time Trump accosted them.

As Shakespeare would say, they doth protest too much.

In tweets last Thursday night, the President condemned Franken, noting that he had fondled Tweeden's breasts and then accusing him of a lot more in what Trump called pictures "2, 3, 4, 5 and 6." In a press conference on Friday, Huckabee Sanders, pressed on the difference between Franken's case and her boss's, said that "Sen. Franken has admitted wrongdoing and the president hasn't."

No.

The difference, Sarah, is that the President is lying and Franken is telling the truth.

Meanwhile, in Alabama, Moore has hunkered down and is just reading from the old playbook.  His lawyer is asking that a victim's yearbook with Moore's apparent signature and Christmas greeting be examined by a handwriting expert, suggesting that the victim somehow forged the yearbook entry.  Nineteen of twenty-nine pastors who previously supported Moore before release of the allegations against him have reaffirmed their support, with at least one invoking the "presumption of innocence" and another labeling the charges against Moore "an attack on men."  The state's Governor has said she will still vote for Moore, even though she earlier said she believed the women.  And the state GOP has stuck with him.

So, is this a pivotal "moment" or just another mirage?

The signs are mixed.  

The fact that Trump, a pathological liar, won the Presidency even after the Access Hollywood charges were aired, and that Moore is still a good bet to win in Alabama, where his defenders are embracing either outright hypocrisy or the usual misogynistic defenses, suggest -- if they do not prove -- that nothing has changed.  Supporters of Clarence Thomas slut-shamed Anita Hill in 1992 ("a little bit nutty and a little bit slutty," said David Brock at the time, who has since repudiated his attacks on Hill), and Trump's and Moore's defenses are just as raw and offensive.  They both attack their accusers as utter liars, and they both embrace the false notion that the failure to come forward at the time of the harassment makes later reports unbelievable.  Trump's assertion that his Access Hollywood comments were mere "locker room talk" is the type of garbage he regularly spouts when facts get in his way, and Moore's admitted conduct -- involving minors and children -- is more than a little creepy.

On the plus side, however, if there was any evidence of a "moment" last week, it came in the person of Franken.  He did not dodge or weave.  He did not slut shame or attack.  His not recalling the rehearsal precisely as Tweeden had was essentially followed by a but-that-doesn't-matter. He had harassed her. And whether the photo was intended to be funny was, he admitted, beside the point.  It was wrong.

He then apologized, in both a public statement and in a letter to Tweeden.

There is a big difference between Trump and Moore on the one hand  and Franken on the other.  

Though the jury is still out, Franken could be part of the hoped for moment . . .

One in which women will be believed, and men will change and make amends.  In some cases, those amends will be terribly painful.  They may involve resignations and criminal sanctions.  In all,  they will involve sincere apologies.  

Sexual harassment is a continuum.  It moves from offensive comments, through inappropriate non-consensual contact, to heinous acts which have always been deemed criminal.  It also includes gray areas, where comments not intended to harass, or contact thought to be innocent or acceptable, in fact is not.  And it includes both the one-off and the repeated.

Where Franken falls on this continuum is, at this point, unkown.  His harassment appears to have been a singular event.  No woman in his Senate office or in his decades long association with Saturday Night Live has called him anything other than supportive in both careers, and his public record has been exemplary.   His shame last week was transparent, his apology sincere.  Indeed, Tweeden has accepted it.

If there are no other shoes to drop . . .

So should we.

If not . . .

We won't and we shouldn't.