'#MeToo' on trial

Updated January 08, 2020

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The writer is an attorney teaching constitutional law and political philosophy.
The writer is an attorney teaching constitutional law and political philosophy.

“TODAY is a day for us to honour how far we’ve come and how much we’ve endured to get here, but it is not the end,” so said actress Rose McGowan at the start of the trial that marks the beginning of the #MeToo Movement. On Monday, Jan 6, 2020, Hollywood power broker and financier, Harvey Weinstein, appeared in court. The day marked the start of Weinstein’s trial, a procedure that is expected to last two months.

While Weinstein is not the first person accused of sexual misconduct to be tried (Bill Cosby has already been tried and convicted), the outcome of the trial is likely to have a tremendous bearing on the #MeToo movement in the United States and worldwide. One crucial issue is whether the allegations made against various men, including Weinstein, are able to stand scrutiny in the justice system. As is well known, many of the allegations made in the #MeToo movement have been tried in the court of public opinion but not as many have translated into actual charges being brought against the perpetrators.

The Weinstein case itself is an example. A total of 80 women have accused Harvey Weinstein of sexual misconduct since the first accusations came to light in October 2017. The allegations ranged from sexual assault to rape to lesser charges. Most of the accusations, however, fell outside the statute of limitations or the period of time in which charges can be bought. The translation of accusations into charges was so difficult, in fact, that of the 80 women who have made accusations only two women’s cases are being heard at this current trial.

Weinstein faces charges of predatory sexual assault, criminal sexual assault, first-degree rape and third-degree rape. According to reports published in CNN, Weinstein insists that he is innocent of all the accusations and charges, and hence, is not sorry for any of his alleged actions.

The outcome of the Weinstein trial is likely to have a tremendous bearing on the #MeToo movement.

Even before the trial got under way, Weinstein, who now complains of severe back trouble and ill health (he walks with a cane), has managed to evade justice in the large number of cases in which he was accused. Others accused as part of the #MeToo movement have been even luckier in evading justice. Actor Kevin Spacey was accused of sexual misconduct by at least 15 people.

Not only have none of these accusations resulted in actual charges being filed against the actor, two of the accusers have died in the past year. The actor also settled a case brought by an unnamed accuser following the latter’s death. The latest death is of author Ari Behn who committed suicide on Christmas Day 2019. Despite the concerning event, Spacey released a video on Christmas in which he slips back into the Frank Underwood character of his once hit show House of Cards.

As the testaments of the women who accused Weinstein and the recent suicide of Kevin Spacey’s accuser show, the pressure placed on individuals making complaints and calling out the behaviour of their abusers places tremendous stress on their lives. In many cases, accusers report having their lives completely ravaged and transformed because they chose to come forward against a powerful person. At the same time, the evidentiary requirements imposed by the justice system in the United States are understandably more stringent than those that indict and convict in the court of public opinion.

The chasm between the two, the demands of actual evidence and the indictments and convictions that take place within the public sphere is likely to be the next big challenge confronted by the #MeToo movement. Everywhere that cases have been brought, be it Pakistan or India or the US, plaintiffs face tremendous costs and evidentiary requirements that are difficult and in some cases impossible to meet. This has meant that a good number of the people who have been accused have not faced any actual legal consequences.

A case in point is that of US comedian Louis C.K who admitted to being involved in misconduct, then proceeded to keep a low profile. His once cancelled show has since been resumed. Others who had been accused faced similar fates, the issues and the shame heaped upon them dissipating with the passage of time.

As the Weinstein trial progresses and more details come to light, similar conundrums are likely to emerge. One way to understand the phenomenon would be to think of the #MeToo movement as a moral rather than a legal effort. In this sense, the naming and shaming of perpetrators by victims can be understood not necessarily to obtain legal redress but to change the moral dynamics of society. In this sense, the aim is to draw attention to the fact that those having power over others in work settings can and do misuse this power for sexual exploitation. A wider social understanding of the fact that this happens, and it happens often, will then mean that the presumption is in favour of the weaker party being believed rather than being excoriated.

The goal of #MeToo then is a worldwide changing of norms in favour of the weaker of the two, in any interaction such that they are more likely to be believed than the more powerful. It is also the change of norms, such that the abuse of women in particular by powerful men becomes such a despicable act that those who would otherwise indulge in it would be deterred by the shame that a mere accusation would bring upon them. Understood this way, #MeToo in Pakistan or anywhere in the world aims to turn the tables and transform morality, in a way that it is women who are believed and men who are placed on the defensive, having to be mindful of their every action, utterance and movement in the way that women are, every single moment of every single day.

The writer is an attorney teaching constitutional law and political philosophy.

rafia.zakaria@gmail.com

Published in Dawn, January 8th, 2020