During a press conference at the White House on November 7, 2018, President Trump responded to CNN’s Jim Acosta’s searching questions relating to the President’s diatribe against the immigrants saying, “You are a rude, terrible person. You shouldn’t be working for CNN.” Acosta persisted with his questions and refused to let go of the microphone when a White House intern tried to take it from him. The White House suspended Acosta’s press pass, also called ‘hard pass’, “until further notice,” which effectively barred his entry to the White House.
Next day, on November 8, 2018, Press Secretary Sarah Huckabee Sanders explained the suspension of Acosta’s hard pass stating, “President Trump believes in a free press and expects and welcomes tough questions of him and his Administration. We will, however, never tolerate a reporter placing his hands on a young woman just trying to do her job as a White House intern.” With the incident recorded on multiple cameras amid scores of journalists, the complete fiction of “laying his hands” failed to fly. CNN sued, and the court directed the White House to restore Acosta’s hard pass as an interim measure. The White House complied. But the incident brought something more disturbing to light.
Press Secretary Sanders tried to turn it into a misdemeanor issue with unmistakable sexual undertones deliberately introduced by the choice and order of words. Would it be alright if, say, instead of “a young woman” the intern was a “young man”? But “placing his hands on a young man just trying to do his job as a White House intern” would actually sound needlessly contorted and awfully lame because the statement would then be loaded with way too many pointless words. And that proves the point.
Ms. Sanders could not have hoped for the fiction to work, but that did not stop her from giving it a try anyway because she did not see a downside, which exposes just how easily and effectively the actual, real-life vulnerability of women to sexual harassment can be used for purposes other than bringing the guilty to justice. It says quite a lot about the possibility of its potentially devastating misuse, which might come around to not only hurt the actual victims of sexual abuse, but may also compromise the hard-fought women’s rights and liberties in general. For that reason the much talked about Me Too Movement must be seen a little more dispassionately and in terms of not only its revelatory nature and revolutionary impact but also in terms of the disruptive potential of its misuse, the possibility of which cannot be ruled out and against which it has no in-built safeguards, unlike formal legal processes.
The Me Too Movement has men confused because they don’t want to be seen as siding with the harassers, or, worse seen as yet-to-be-exposed harassers themselves, but even the most ‘decent’ of the lot are trying to recollect if they ever happened to crack a sexually coloured joke in the past within the earshot of a female colleague, which might come back to bite them a decade or so later. The only saving grace is that the Movement is about shaming the high and mighty. Others seems to have immunity of sorts. The problem is that the Me Too Movement is less about the truth and more about harassing the harasser, and to many of us that might even sound like justice, which arguably it is, but of the kind that creates more problems than it solves, if any at all.
First off, nobody in his right mind could or would say that sexual offences against women must be taken lightly or the perpetrators must be given a soft treatment. However, ‘Me Too’ is not exactly the answer because it does bring to light the specific instances of harassment by powerful men, but does not and cannot really propose a viable solution except creating a hostile work environment for the harasser to either force him to step down from the position of influence or compel the establishment or institution or employers concerned to ask him to leave thereby hurting him personally, professionally and socially.
There is nothing a man, guilty or innocent, wouldn’t do to steer clear of such devastating catastrophe, especially if he happens to be rich and famous, which the Me Too Movement requires all its villains to be. That makes all rich and powerful men, guilty and innocent alike, vulnerable to blackmail because taking a financial hit is so far better an option than the alternative that the alternative is not much of an option, guilt or innocence regardless.
If a woman harassed in the past accepts a large sum of money from her harasser and settles the issue openly or clandestinely, would the champions of women’s rights consider it a just consequence? Would such ‘win-win arrangements’ between the parties involved serve the cause of gender justice or women liberation? Asia Argento, the Italian actress and director, who has been one of the foremost leaders of the Me Too Movement, is no stranger to such murky deals.
Ms. Argento was one of the very first women to publicly accuse producer Harvey Weinstein of sexual assault, and it was Ms. Argento’s revelations from where the Me Too Movement gathered steam and spread the world over like the clichéd, proverbial wild fire. In October 2017, Ms. Argento’s allegations against Mr. Weinstein were published in a New Yorker article by Ronan Farrow according to which she had claimed to have been sexually assaulted by Harvey Weinstein in the 1990s. However, she also added that she had “had consensual sexual relations with him multiple times over the course of the next five years,” and further said that she “eventually yielded to Weinstein’s further advances and even grew close to him.”[i]
However, someone did not quite like Ms. Argento’s playing a victim of sexual abuse, and as irony would have it, less than a year later, on August 19, 2018, a New York Times article revealed that Ms. Argento had “quietly arranged to pay $380,000 to her own accuser: Jimmy Bennett, a young actor and rock musician who said she had sexually assaulted him in a California hotel room years earlier, when he was only two months past his 17th birthday. She was 37.”[ii] The settlement between Mr. Bennett and Ms. Argento was kept under wraps. Mr. Bennett and Ms. Argento had first met on the sets of the 2004 film “The Heart Is Deceitful Above All Things,” in which a 7-year-old Mr. Bennett had played Ms. Argento’s son.
In October 2017, a month after Ms. Argento accused Mr. Weinstein, Mr. Bennett sent a “notice of intent” to Ms. Argento demanding $3.5 million in damages “for the intentional infliction of emotional distress, lost wages, assault and battery.” [iii] An agreement was quickly and secretly reached between the parties and the matter was put to rest except the details of the understanding found their way to the mailbox of The New York Times, and the skeleton tumbled out of the cupboard, so to speak.
Ms. Argento tried denying the allegations of sexual assault explaining that the money paid to Mr. Bennett was “to help alleviate Bennett’s severe economic problems” and to avoid “negative publicity”.[iv] Photographs showing her topless in bed with Mr. Bennett emerged together with screenshots of text messages in which Ms. Argento admitted to having sex with Mr. Bennett to a friend of hers. “I had sex with him it felt weird. I didn’t know he was a minor until the shakedown letter,” said one of the texts.[v]
Finally, Mr. Argento’s lawyer wrote a lengthy response confirming the sexual encounter between Ms. Argento and Mr. Bennett, but accused Mr. Bennett of sexually assaulting Ms. Argento. However, no charges were admittedly pressed. It was also confirmed that while $250,000 out of the total settlement amount of $380,000 had been paid, but Ms. Argento was not going to make any further payments. On his part, Mr. Bennett told CNN through his attorney that he maintained silence because at that time he believed that “there was still a stigma to being in the situation as a male in our society.”[vi]
With the dirt already exposed, Ms. Argento had no reason to pay anymore. Had the arrangement worked, the story of Ms. Argento’s other side would have never come to light, which also means that there could always be cases of successful arrangements about which we would never get to know anything.
THE NATURE OF THE MOVEMENT
Speaking out fearlessly has been the most admired and celebrated feature of the Me Too Movement, but fearlessness come through curtailment or absence of attendant risks making it both a safe outlet and a dangerous tool, for the absence of risks also lowers the stake for the accuser, which heightens the possibility of its misuse. And that can potentially blunt the tool in the long run.
A publicly voiced allegation of sexual assault can be devastating to the accused at multiple levels, and accuse is all that the woman has to do as long as her past association with the man concerned afforded such situations and circumstances as to make sexual advances possible and plausible, and with women now working closely with men everywhere such situations and circumstances are easy to find making holding out a bogus threat of exposure only possible but also safe, easy and quite profitable.
It’s safe because even if the threat doesn’t work and the bluff is called, the episode is likely to just slide into oblivion without consequences because the accuser is not really called upon to prove her allegations, unlike in a legal challenge. A person falsely accused can only have recourse to the legal process because the Me Too Movement has no room for a defense and no sympathy for the ‘harasser’ because the informal mechanism has evolved only to let the victims of sexual abuse bring their experiences to light, and to force the society to respond prejudicially against the alleged harasser.
However, the Me Too Movement is not about the sexual oppression of the powerless and underprivileged by the powerful and influential, but of the powerful and influential by the more powerful and more influential. Here, peasant women are not being assaulted by the mighty landlords with everybody under their thumbs. Here the rich and famous personalities are being harassed by people in influential positions in the same profession, business or industry as the victims. So, access to formal legal process was not blocked or denied, but was not resorted to for professional reasons for an inordinately long time in most of the cases.
Fear of reprisal and consequent professional setback is understandable to a degree, but continued silence without a compelling explanation does severely weaken the victimhood of the victim, for to say that one chose to stay in a sexually exploitative situation, or continued suffering sexual abuse to further one’s career goals despite having the option to walk away all along sounds more like a career choice involving quid pro quo rather than continual sexual assault.
Nobody has the right to take advantage of one’s position to force himself or herself upon someone, but one cannot use a situation to one’s advantage and then turn around to point fingers saying that one couldn’t speak any earlier because the exploitative situation was helping one’s career a great deal and speaking up then could have been disadvantageous and detrimental to one’s professional goals.
However, if one still feels that there was even a single instance of sexual assault, one can always set the criminal justice system in motion at any point of time and explain the delay to the court because the law pertaining to limitation is not attracted in cases of heinous crimes. But playing a helpless victim after having used the exploitative system to one’s advantage trivializes the serious nature of such offences compromising the efficacy of the criminal justice system to deliver justice against the odds that are already quite daunting.
DESTIGMATIZATION AND BURDEN OF PROOF
The law relating to sexual offences against women in India has the standard burden of proof reversed, and instead of raising the presumption of innocence, the trial starts with a presumption of guilt. The underlying idea behind the reversal of the onus is that a girl or a woman would not lightly accuse someone of a sexual offence because of the social stigma attached to being the victim of a sex crime.
Stigmatizing the victim of a sex crime is absolutely unfair, unjust and irrational. But, like it or not, it does serve a purpose in the larger scheme of things. The stigma preemptively blocks frivolous complaints of sexual offences to some extent, which makes the courts trust the complainant’s version of the events with greater degree of confidence, and the case gets thrown out only when the story of the complainant does not hold up or concrete evidence against the complainant’s version is brought on record by the defense. But even then false rape cases for reasons such as personal enmity and extortion are not exactly unheard of. Therefore, removing social stigma, although extremely desirable, can have the effect of raising the number of false and motivated complaints filed for extra-legal purposes.
What the Me Too Movement does is destigmatize the victims and stigmatize the perpetrators of sexual offences with considerable prejudice, which is ideally how it should be because the responsibility must squarely and exclusively rest on the shoulders of the offender. But destigmatization has the undesired effect of raising the possibility of false accusations for financial gain or some other reason or purpose.
However, the most dangerous aspect of the Me Too Movement is the pressure it tends to build on the establishment, industry or the employer and also on the civil society at large to punish the alleged perpetrator extra-judicially. Apart from such a course’s being inherently perilous for want of safeguards, it’s nothing short of harassment for harassment with no allowance for proportionality. What if, just what if, the person accused is not really guilty, or is guilty only of a minor infraction, and a devastating social media post sends his personal and professional life down the drains? What option does he have other than resorting to civil and criminal remedies under the law of defamation? And such a recourse means bringing upon oneself a long and expensive legal battle. A much smoother and cheaper option would be to negotiate with the person making false allegations and pay a reasonable sum to kill the storm in the making itself. Storm dies, but a blackmail scheme is born.
LAW OF DEFAMATION
As for the remedy against false accusation under the law of defamation, one of the supporters of the Me Too Movement considers it “the tool of the powerful to blackmail, harass, and silence inconvenient speech.” The writer concludes by saying, “All that we need is for the courts to understand what is at stake, and respond with the courage and the sensitivity that these times demand of them.”[vii] What’s strange is that a formal legal process designed to elicit the truth by rigorous examination of evidence presided over by a trained, impartial judge is just a “tool of the powerful” whereas unverified, untested ‘revelations’ of sexual abuse are somehow gospel truth, above and beyond suspicion despite the fact that with the stigma substantially diluted, if not completely eliminated, the credibility of such allegations is under deeper suspicion than ever before, as discussed hereinabove. The only place where the veracity of such allegations can be impartially and rigorously tested is a court of law, and if the ‘victim’ does not approach the court, the ‘harasser’ has to, if he considers himself innocent.
The foremost job of a trial court is to find the truth by testing the evidence on the touchstone of well tested and widely accepted parameters and principles evolved over time for the specific purpose of unearthing the truth. The people involved in the process — trial lawyers on both the sides and the presiding judge — are experienced professionals rigorously trained to, metaphorically speaking, pick the grains of truth from all the irrelevant chafe thrown around. The relevant law is applied to the truth thus winnowed and a judgment pronouncing on the merits of the case is handed down. The laws — procedural, evidentiary and substantive — are already quite sensitive to sexual offences against women, and the courts have never hesitated in imposing extreme penalties in accordance with the law in cases where the offence stands proven, which is precisely what the courts are supposed to do. No less and no more.
Therefore, to call the legal process a “tool of the powerful” and to advice the courts to “respond with the courage and the sensitivity that these times demand of them” implying that the courts are not sufficiently impartial and are not already courageous and sensitive is not only beyond ridiculous but is also indicative of the naively excessive faith placed in the veracity of the untested claims of sexual assault, abuse or harassment, a large number of which might be true but some of them might still be grossly exaggerated or simply false. Why the desire to rush to conclusions? Since when is mere accusation enough to punish the accused? How come legal process is suspect and a woman’s — any and every woman’s — assertion credible? What about loads of such cases wherein the ‘rape victims’ confessed to having framed the accused leading to immediate acquittals? Don’t they show that despite the social stigma attached to being a rape victim, women can still lie about rapes, at least sometimes? Why this frenzied desire to condemn the accused unheard? Why is fact-finding on nobody’s list of priorities?
In a lawsuit for or criminal complaint of defamation, the plaintiff or the complainant, as the case may be, has to establish that there was no factual basis for the defendant or the accused to say what he or she said or wrote, and to prove that is a tall order in both civil and criminal proceedings. Furthermore, the other side is as free to defend itself as the plaintiff or complainant is to accuse. In India, trials are fair. Besides, any error of fact or law committed by the trial courts can be rectified in appeal by the superior courts. To place faith in ‘trial by media’ is akin to believing that a large group of chatty schoolgirls can deliver substantive justice through a coherent pronouncement, for the ‘court of public opinion’ is not much of a court simply because it is way too noisy and far too impassioned to approach the facts in issue rationally and dispassionately. Therefore, if A accuses B of X, B has a right to legally challenge A to prove X before an impartial forum. Such a right cannot be questioned on any ground.
Sexual offences are crimes with formal legal processes in place to bring the guilty to justice, and it’s a societal problem just as much as most of the other crimes are. If the idea is to make work and social environment safer and less hostile for women, the Me Too Movement might do the opposite by pushing the most influential and successful on the back foot and they might start avoiding female associates in order to foreclose the future possibilities of such allegations, for now they know that the allegations can surface years and even decades later. The disruptive potential of the ‘Me Too’ leverage might also make the employers prefer employing men over women, and commercial establishments and organizations might also resort to the regressive measure of segregation to purportedly ‘protect’ women, which would do more to cage women than liberate them.
As a matter of fact, men cannot really be faulted for wanting sex from women as long as they do not resort to behaviour bordering on stalking or harassment. The frenzied atmosphere that the Me Too Movement has created obscures the boundary between sexual overture and sexual harassment. All romantic and semi-romantic pursuits have a necessary sexual component to them, which is foundational to their romantic character. If men start keeping a ‘safe distance’ for the fear of being accused of sexual harassment when it’s convenient, profitable or advantageous for the ‘victim’, it would give rise to a society where men would be too afraid to say anything even remotely sexual in the vicinity of women, much less propose a ‘relationship’ of any kind. True, women don’t want to be harassed, but do they want their environment to be as ‘safe’ and as ‘sanitized’ as to feel like babies being kept clear of all ‘corrupting influences’? Would that not be so much like the patriarchal protection and condescension that women have fought so hard to defeat and dismantle, and which still tries to fight its way in wherever it can every now and then?
The Me Too Movement might have its place as a platform for an open, fearless disclosure and discussion about sexual offences committed by powerful men in their privileged cocoons, but it has no solution to offer because it was not meant to solve the problem of sexual abuse but only to expose the ‘dark side’ of the powerful. But were we really unaware? Did we think men in powerful positions would not try to leverage their positions for sexual gratification? Did we forget the sting operation on Shakti Kapoor telecast by India TV in March 2005, which brought the phenomenon of ‘casting couch’ in sharp focus back then? So, what’s new here? Social media and its ability to kick up a storm in no time?
Casting couch has existed for this long only because it worked for the parties concerned. When a shockingly ‘indecent proposal’ is made, one is free to turn it down and walk away. If one accepts the proposition and makes it a ladder to rise to the top, one loses the moral right to blame the ladder when it’s convenient to do so because such an arrangement is no harassment but simply a victimless mutual exploitation. Such a sex-for-work arrangement is sexual exploitation only in the situation where one needs work to subsist and one is left with no alternative but to submit to the unconscionable sexual demands.
Apparently, some of the vehement Indian supporters of the Me Too Movement seek to shackle male behaviour with an ultra-sanskari code of conduct. It’s well known that men do all kinds of things to woo women, like peacocks in the mating season, and some of those things are pretty clumsy. But you can’t blame a man for trying. After all, one woman’s clumsy is another’s cute. Men, on the other hand, are far simpler creatures, for what women want might be confusing and fuzzy, what men want is not. One of the things that Indian men do to impress women is recite poetry, generally, in Urdu, littered with insufferable mispronunciations. But someone found a problem with that, too.
A writer — seemingly, a passionate supporter of the Me Too Movement — recounted an incident in which a “senior bureaucrat” told a lady that she was “smart and beautiful” and then “recited couplets in Hindi and Urdu”, which the writer found to be a “blatant display of inappropriate behaviour, which makes women uncomfortable, shows that men in power enjoy the impunity that accompanies attitudes and acts entrenched in patriarchy.”[viii]
Agreed, sometimes men reciting poetry to women can be unsettlingly lame, but to put it in the same bracket as sexual harassment is needlessly extreme unless it is accompanied by oppressive persistence. Done right, a couplet recitation can work wonders, and sometimes even a badly recited couplet can elicit a smile, which, though not much, is a crack in the citadel, a window of opportunity, or just a source of fleeting joy. The point is that men push their candidature in various ways and women decide. That’s how the world works. There will always be some grey areas, but removing them altogether is neither practical, nor desirable because man-woman relationships are complex and too rigid a prescription of ‘appropriate behaviour’ for men can only be detrimental to the egalitarian interests of the society, for there can be no gender equality without closer, better and smoother man-woman interaction whereas rigid gender-centric boundaries based on squeamish notions of appropriate conduct tend to reinforce gender prejudices and fester an ulcerous gender divide that does no good to anybody.
The Me Too Movement has its value as a dialogue starter, but it is basically like a spotlight turned on a small corner of a room full of identical problems. Sexual offences against women is a serious and complex issue that calls for a broad-based socio-legal solution. To think of ‘Me Too’ as a remedy to a problem that grave and intricate is a bit like prescribing sunscreen for skin cancer.
Sources and References
[i] From Aggressive Overtures to Sexual Assault: Harvey Weinstein’s Accusers Tell Their Stories, The New Yorker, October 23, 2017, https://www.newyorker.com/news/news-desk/from-aggressive-overtures-to-sexual-assault-harvey-weinsteins-accusers-tell-their-stories, Last Accessed: November 27, 2018.
[ii] Asia Argento, a #MeToo Leader, Made a Deal With Her Own Accuser, The New York Times, August 19, 2018, https://www.nytimes.com/2018/08/19/us/asia-argento-assault-jimmy-bennett.html, Last Accessed: November 27, 2018.
[iv] Asia Argento denies sexual assault of 17-year-old actor, The Guardian, August 21, 2018, https://www.theguardian.com/film/2018/aug/21/asia-argento-denies-sexual-assault-claims-anthony-bourdain, Last Accessed: November 27, 2018.
[v] Photo, text messages appear to contradict Asia Argento’s denial of relationship, NBC News, August 23, 2018, https://www.nbcnews.com/pop-culture/celebrity/photo-text-messages-appear-contradict-asia-argento-s-denial-relationship-n902876, Last Accessed: November 27, 2018.
[vi] Asia Argento’s attorney says 17-year-old sexually ‘attacked’ her, CNN, September 5, 2018, https://edition.cnn.com/2018/09/05/entertainment/asia-argento-jimmy-bennett-sexually-assaulted-her/index.html, Last Accessed: November 27, 2018.
[vii] The judiciary’s #MeToo moment, The Hindu, October 23, 2018, https://www.thehindu.com/opinion/lead/the-judiciarys-metoo-moment/article25290498.ece, Last Accessed: November 29, 2018.
[viii] #MeToo: A gender curriculum, The Hindu, November 20, 2018, https://www.thehindu.com/opinion/op-ed/a-gender-curriculum/article25540532.ece, Last Accessed: November 30, 2018.
Originally published as Cover Story in Lawyers Update [December 2018, Vol XXIV, Part 12].