Law Is Too Powerful to Follow the Truth, Advocate, 25/10/2017

At this moment, at least, powerful conceptual and emotional spasms are pounding through our society. The long-awaited acknowledgement that Harvey Weinstein was a serial sexual predator throughout his entire career as a Hollywood mogul has caused a media exorcism of horror and shame.

Yet everyone knew about it. There were rumours swirling about Weinstein for decades. Actresses at every level of power and fame would whisper to each other, warning each other to be careful around him. Everyone knew.

It was just one feature of a climate of abuse throughout the entertainment industry. Allegations continue to confirm what everyone already knew about performers, photographers, directors.

Here's one profoundly depressing – I think because it feels so
inevitable – of Harvey Weinstein's explosion. He doesn't think he did
anything wrong, and that it was all consensual. I think he actually
believes that all the horrible, icky things we read in the accounts of
so many women are ordinary, legitimate ways to obtain consent.

In some of the long, exploding mess of discussion in the media and among more ordinary folks on the internet, a friend of mine got into a huge amount of trouble. Most of the rage directed at him was the result of his natural sarcasm being not quite appropriate for the context at the time.

But aside from putting his foot in his mouth (allowing so much of Twitter to bash it in deeper), my friend made an intriguing point. I still think he was wrong about it, but he was wrong in a way that helped me clarify some ideas about how we rely on the law.

Particularly the wrong ways we rely on the law. Legal theorist friends – shoot me some feedback if you see this.

My friend’s idea was that if Harvey Weinstein was brought to trial, we’d be able to figure out the truth. Now, I think that’s incredibly wrong-headed and ridiculous. And I’m going to tell you why.

But I’m going to say why without any more reference to patriarchal social structures, or any other concepts about systemic inequality or discrimination. Because I want to write something that will be believed by people who already don’t believe in all that.

It has to do with different standards of truth for different purposes. See, I’ve already seen this dynamic play out in Canada, and it went very badly. That was Jian Ghomeshi’s trial for sexual assault.

The film producer and his second wife, Georgina Chapman, in 2011.

Harvey Weinstein made himself out to be different from the predatory
Hollywood moguls of the past because the Weinstein Company was
cool in a way those stuffy hokey old-fashioned images could never
manage. But he showed every sign of being just another one of
those old men who used money and power to control much
younger, vulnerable women. If it looks, walks, and quacks like
a duck . . . Do I need to finish that?

Ghomeshi was found not guilty. One reason was because his defence lawyer was very good at discrediting the witnesses. Another reason was because the crown prosecutors built their case around incidents that happened about a decade before the trial, and human memory can’t remember events from so long ago with consistency, accuracy, and detail.

But his not-guilty verdict was taken, by some folks who yelled at me on Twitter about it, as proof that he was actually totally innocent of everything. There’s a popular perception that a criminal trial unveils the truth. Well, it doesn’t quite do that.

Criminal trials do not have the goal of uncovering the truth. The goal of a criminal trial is sending someone to prison . A prison sentence is the end, and the criminal trial is – in a democratic state’s legal system – the only possible means. Truth is related to this process, but only instrumentally.

Instrumentally to two degrees of abstraction. One – the trial is an instrument to inflict a prison sentence. Two – establishing the truth to a particular standard of certainty is an instrument to a successful criminal trial.

Now, sending someone to prison is a pretty serious thing. Prisons are not nice places, and they probably never will be, no matter how dedicated to restorative justice a society becomes. Prison is the most terrible place a democratic society can send someone without the death penalty.*

When OJ Simpson went to prison for robbery in 2008, I don't think
anyone commented on the irony that after being falsely brought to
trial for murder, he went to prison for this. No, we all know OJ
killed his ex-wife and her boyfriend, and we saw him beat the rap.
Yet MRA types today will never accept that Ghomeshi actually
sexually assaulted and harassed a bunch of women, because being
found not-guilty proved his total innocence.

* Itself kind of a debatable question.

So if you want to take prison as seriously as you say you do, as a democratic society, you’ll make the standard of proof to send someone there enormously high. I’m not just talking about the reasonable doubt standard, though that’s one very high standard.

In the Western legal system, we define our crimes according to specific acts carried out at specific times. You apply your standard of reasonable doubt to whether the prosecution can prove whether a particular event unfolded exactly as their account said it was.

A prosecutor has to describe and prove true a narrative of that event so detailed that very, very few humans’ memories can provide it. No one remembers the exact time and precise order of events of everything that happens in our lives.

An assault victim must consider every detail of the assault – “You’re certain that it was his right hand coming for your jaw? Your jaw first?” – as it happens, timing it at least to the minute. Human memory can’t function that way in the adrenaline of facing aggressive physical assault.

To avoid inflicting prison on those who don’t deserve it, the standard of evidence to convict someone for a sentence is monstrously high. But a not-guilty verdict only means that no one could meet quite that standard of evidence.

It’s perfectly consistent to know that someone did it – for everybody to know they did it – and for him to get a not-guilty verdict. The phrase is, “That asshole got off.” Remember?