Years After #MeToo, Defamation Cases Increasingly Target Victims Who Can’t Afford to Speak Out
Years After #MeToo, Defamation Cases Increasingly Target Victims Who Can’t Afford to Speak Out
Sexual abuse victims without the resources to fight off defamation lawsuits may feel forced to recant their accusations or never speak up.
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How infuriating, and sad. The stories in this article are awful to read, like the woman whose case passed a grand jury, got dropped by a misogynistic prosecutor, then was retaliated against with no real recourse. There are a number of good points made, such as what SLAPP means, and the fact that these cases enforce the very power dynamics that lead to sexual assault in the first place. But there is one big point the author misses:
These cases are a result of the so-called justice system functioning exactly as intended.
The legal system in the US is designed to preserve existing power differentials. The laws are paid for, the proceedings opaque, and if you want any chance of success you must have money for lawyers (or find a lawyer with enough in the bank to take it pro-bono). A legal system like this is 'capitalist' in the sense that it discriminates based on access to wealth, which in a patriarchal society like the one we live under makes it especially bad for women. As we can see here. And it forces survivors to relive their trauma, over and over again as the proceedings stretch on.
"But what about false accusations?" The tired argument of trolls, chuds, and those who've bought these rapists' PR pitches everywhere, it unfortunately bears addressing here. False accusations are rare, far rarer than legitimate ones, which are themselves pretty uncommon due to all the barriers and retraumatization involved. Since they are so rare, and sexual assault so common, it makes little sense to focus on this one possibility when doing so is likely to spread further harm by hurting the percieved legitimacy of those who accuse their rapists.
But, for the sake of argument, let's think about how accusations might work (false or not), in the context of a stratified society and legal system. I see four basic situations we can start with, based on the relative wealth of the two parties in question:
Poor accuser vs rich accused. The accused can just hit the accuser with defamation lawsuit, kind of like we see here. It honestly doesn't make any sense for someone to falsely accuse someone richer than them, as it doesn't take much thought to know how it will turn out. This is also the most common scenario covered on the news, and therefore the most common place to find false accusation FUD.
Poor accuser vs poor accused. No great options for either party here, since you need money to access most the legal system. This kind of thing basically never gets beyond local news so we don't really talk about it online much. It's hard to go through a trial like this for either party, and the system is going to make it hard on both parties.
Rich accuser vs rich accused. Since both parties have money, they can drag things out into a real shit-show, similar to what we saw in Depp v. Heard. It would be hard to call the sort of process we see in a case like this "justice", especially when it is broadcast on television for everyone to gawk at. In the high-profile case we saw, both parties ended up looking like shitty people to a polarized audience.
Rich accuser vs poor accused. Now we get a situation where the worry about false accusations makes a lot more sense, since the accused has no good recourse to the legal action against them. Again, the legal system is shit. We also don't see much of this, rape relies on power dynamics, and rich people are more likely to ignore us poors than go out of their way to personally ruin us. Plus, if they wanted to there are usually better ways to ruin someone's life that don't involve the risk of hours spent in boring legal proceedings.
There are endless confounding factors in these situations, and they could end up all sorts of ways, but thinking through the dynamics gives us a bit of a picture of just how flawed the legal system is, and how little sense false accusations make. The most common place to see the idea is under stories where the accuser has less power than the accused, which is also the situation in which it doing so carries the highest risk and lowest reward. Additionally, this is one of the most common abuses of power in our society. So no more of that, this talking point hurts many people and protects rapist. If you somehow read this far and engage in this sort of behavior, know that your actions cause real harm to real people.
Okay, so the justice system is bad, what do we do about it? We abolish it, that's what, and replace it with various alternatives that don't presupose punishment as the end-all-be-all of justice. For that we have two broad frameworks to look at, restorative justice and transformative justice.
Restorative justice understands that everyone who is affected by a harmful act, victim, offender, and broader community members, is a human being worthy of dignity and respect. In the best cases the process asks what people need to be as okay as doable, and does it's best to make that happen. This involves active community engagement, and does not necessarily entail the offender ever coming face to face with their victim, as while everyone has needs in this situation the person who was hurt comes first. Restorative justice programs exist today, but often in forms tacked onto the existing legal system.
Transformative justice understands that no action occurs in isolation, that people do not simply choose to harm others out of nowhere. As a process it seeks to understand why a harmful act occurred, what about the community in which it occurred could be changed to prevent future acts, and how such a change can be made. At it's best, transformative justice prevents harm from ever happenning by preventing the conditions that cause it in the first place.
Both of these forms of justice require significant time and energy to work. It is entirely valid not to seek justice sometimes, as it is a lot of work, amd these processes might not offer any outcome that's worth that work. Though in the case of sexual assault in particular we desparately need some transformation. As long as we continue to try fixing a fundamentally broken system instead of building something better, we will see sexual assault and SLAPP suits continue.
“But what about false accusations?” The tired argument of trolls, chuds, and those who’ve bought these rapists’ PR pitches everywhere
And also those of us who believe in "innocent until proven guilty."
Calling someone out as a rapist on a public forum is, essentially, vigilantism. Vigilantism is a sign that there's something wrong with the justice system, such that people are unable to trust that it will be able to actually bring guilty people to justice. The solution to a problem like this is not to cheer on and protect the vigilantes, it's to fix the justice system so that people don't feel the need to go outside it like this.
How would you propose fixing the justice system? What changes are necessary to make survivors of sexual assault feel safe coming forward with their stories? What does "justice" look like to you?
It isn't required to have a solution to a problem in order to point out that the problem exists.
I have ideas, of course. Better public defenders and reforms to the district attorney system to ensure that cases get tried in a timely manner and to ensure plaintiffs and defendants have access to good support regardless of how wealthy they are. Better handling of anonymity on both sides, restraining orders, and so forth. There's likely no one magic bullet.
But the solution is definitely not to legitimize vigilantism or deny the presumption of innocence. That way is giving up on the justice system entirely.
Very true, it is not required to have a solution, I myself only gave a couple of broad frameworks as alternatives, alongside a call for abolition.
But consider for a moment the people you're accusing of "vigilantism" here. These are people who very often did go through the so-called justice system, for example Aubuchon reported her case, completed a rape kit, then waited a year for nothing to happen. It was only after being utterly failed by the system that she posted on social media, with the intent of warning others about this creep. He does not deny having sex with her, on the job while he is in a position of power over her no less, but says it was consensual. Remember, she was only 18 at the time, and has no wealth to speak of. What else was she supposed to do in this situation?
Or take Longhorn's case, she followed all the appropriate channels, and got nothing but grief for it. An official complaint to her work led to harrassment, and her case was dropped by the prosecutor because he thinks she should have fought him off. Here we have a member of the justice system itself advocating what could reasonably be interpreted as "vigilantism" in favor of the official legal channels. According to Wikipedia: "Vigilantism refers to the act of preventing, investigating, and punishing perceived offenses and crimes without legal authority." Fighting off one's rapist would count as prevention, and she did not possess legal authority to assault him while in his home. Then he sued her, forcing her to pay legal fees before dropping the case. What should Longhorn have done differently in this situation? At what point did she ever engage in "vigilantism"? His defamation suit against her is not due to a social media post, but rather her talking to coworkers and contacting authorities.
I'm not gonna straw-man you here, but you might want to think about the implications of calling what these women did "vigilantism" in light of the actual actions that they took. Namely, contacting the authories.
But let's leave the survivor's personal experiences aside for a minute and talk about systemic change. How should people who have been systematically abused by a system try to change it? Would revealing it's failures on social media for all to see perhaps be a step in that direction? It's not as if the levers of power that can make the changes you suggest are terribly accessible to the general population. If fact, they are far more accessible to the very people doing the raping, powerful men. Posting about rapists on social media is a tactic to change the justice system, it's just one that those currently priviledged by the system are threatened by.
Insisting that we must change the system, while decrying the powerless' efforts to do so, doen't that seem a bit contradictory?
To address your last sentence, we should give up on the so-called justice system. It does not create justice, but rather perpetuates inequality. Please understand, this does not come from a place of rejecting the concept of justice. On the contrary, I wish to see a more just world, and I am unwilling to compromise that ideal. The "justice system" is unjust. There are promising, proven alternatives. Why don't we try those instead of the promise of reforms that have never once materialized?
There's an example of the sort of thing I'm calling vigilantism, right in the first paragraph of the article:
Years after she says she was raped, and once she realized the police weren’t going to pursue her case, she decided to make a public post on Facebook naming the alleged rapist. “MY VOICE WILL BE HEARD,” she wrote. “THIS IS FOR ALL THE VICTIMS OF THIS SICK MAN!!!!”
Even if it was 100% true, this is an example of someone "taking justice into their own hands." There's no way of knowing what kind of "punishment" her target is going to endure because of this. Will it be proportional, or restorative, or anything remotely positive? Who knows? It's not being done by any sort of regulated framework, like the justice system is supposed to be. Maybe he'll just be embarrassed. Maybe he'll get divorced and lose custody of his kids. Maybe he'll be brutally murdered by someone else taking justice into their hands as well. Now add in the fact that we don't know that what she posted on Facebook was true and we have a very poor approach to justice indeed.
Part of the solution is clear in the quote. She says she did this because she didn't think the police were going to pursue her case. That's what I was suggesting above - vigilantism arises in an environment where people don't trust the "proper" justice system to actually function correctly. Same with the Longhorn case you describe, "she followed all the appropriate channels, and got nothing but grief for it." The solution is to ensure that the appropriate channels work.
Insisting that we must change the system, while decrying the powerless’ efforts to do so, doen’t that seem a bit contradictory?
Where am I decrying the powerless' efforts to change the system? I'm decrying their efforts to pursue vigilante justice. That's not changing the system, that's bypassing it entirely.
To address your last sentence, we should give up on the so-called justice system.
And so you're advocating exactly that, too. What "promising, proven alternatives" are there to the justice system? Bearing in mind that I'm not advocating we should just carry on exactly as we are, I've already stated that I think reforms are needed to make things better.
Whatever form those take, though, they must never get rid of the presumption of innocence or the opportunity for the accused to defend themselves. That sort of "justice system" leads to very dark places.