COMMENT | Due process – the opportunity for both sides to be heard, prior to an independent and impartial third party determining contested allegations – clearly applies when someone is charged with a crime in court, and facing the risk of state-sanctioned punishment such as the death penalty.
But, should this principle also apply to someone being ‘charged’ or accused in a social setting, and facing non-trivial consequences? For example, someone facing widely publicised allegations of sexual assault on social media, and so their reputation indefinitely tarnished in the eyes of many.
I’d say yes, it should apply. We can and must seriously address the harms suffered by victims, as well as the undue harms suffered by the wrongly accused. All individuals facing accusations of a crime, of committing a grave moral, public affront, are entitled to the principle of due process. This is a basic, fundamental tenet of justice.
A force for change
The #MeToo movement has, without doubt, been a watershed moment. It addressed and sought to dismantle the obstacles faced by victims of sexual crimes in obtaining remedies and, so, obtaining justice. The movement recognises the historical failures against complainants* of sexual crimes, and attempts to tackle the myriad of present-day issues faced by complainants.
As a snapshot of these obstacles; first, there may not be adequate or any complaint mechanisms for someone who has suffered sexual harm, whether within institutions (i.e. an employment setting, or university) or in our private spaces and relationships, including marriage.
Second, even if there are mechanisms in place, there’s still vast underreporting; victims may not come forward for many reasons, from not wanting to break up their family, to lacking confidence that the authorities will seriously investigate their allegations. For some, the only space they’d feel safe enough to share may be with friends, or with a therapist.
Third, the difficulty or impossibility of obtaining evidence beyond the victim’s own testimony. Sexual assault often happens in private and, as a result, allegations are heavily reliant on oral testimony, on ‘she said versus he said’. Fourth, the fears of the repercussions of speaking out, i.e. losing their jobs; the accused lashing out; and victim-blaming, re-traumatisation, and stigma.
Although there’s still a long way to go, we should acknowledge the positive impact of this global movement. In the wake of the movement, the reporting of sex crimes has increased. In turn, this shows that the movement and its use of social media have empowered people to have their voices heard.
Actions in the name of the movement range from creating new laws including international law, to establishing or improving complaint mechanisms and victim services, sharing stories of sexual assault and providing support – such as Tarana Burke using ‘Me Too’ in 2006 to raise awareness of abuse against women and Alyssa Milano’s viral tweet in 2017 – as well as making accusations against named individuals on social media.
The failure to vindicate victims for the harms they have suffered and, in many cases, continue to suffer, is perhaps not only a failure of the state but a moral, societal failure too. Victims are entitled to fairness; we must have procedures for victims to obtain justice and, throughout those procedures, they must be treated with sensitivity, and their claims seriously investigated.
And, the accused is entitled to fairness too. Where the accused denies their guilt and pleads “not guilty”, whether among peers or in a court of law, a fair process should be ensured to both sides. In those cases, and as symbolised in the scales and blindfold of Justitia or Lady Justice, the strength of the opposing claims should be balanced with impartiality, and objectivity.
Amplifying allegations
Undeniably, it’s good that the use of social media to amplify accusations has led to them being taken seriously. But, as pointed out here, ‘[t]here is a thick black line between treating an allegation seriously and automatically believing its truth’.
Why is this distinction important, and what are the implications of ‘automatically believing in the truth’ of an allegation against a named individual? The answer lies in the risk of false accusations, and harm to the accused.
When it comes to accusations, there’s the unavoidable risk of some being false. It’s possible to accept both the fact that many accusations of sexual crimes are genuine, and the fact that false accusations do happen (UK CPS’ report; US-based National Registry of Exonerations). However low or rare the occurrence, we shouldn’t ignore this risk and the harm flowing from it.
Although a ‘social’ determination of guilt is different from a legal or court determination, being perceived and treated as guilty by one’s peers is nevertheless still significant. It can have extremely damaging impacts on the accused’s reputation, financial security, and relationships, which could then snowball into their social withdrawal and isolation. Even if the accusation is later established to be unproven or false, these harms may never be fully redeemable. Once shattered or lost, reputation is difficult to rebuild.
Public accusations can even lead to a relentless ‘witch-hunt’ on social media, and the effects on the reputation and mental health of the accused could culminate in depression, or worse. Unfortunately, there’s a real-life example of this.
A Swedish theatre director Benny Fredriksson was hounded on social media due to allegations of sexual misconduct and, three months after the initial accusations, he took his own life. Stockholm city’s investigation into the allegations concluded after his death and the city found no evidence of sexual misconduct by Fredriksson.
Also, an independent evaluation concluded that the newspaper which published the initial accusations had “grossly violated good journalistic practice”. Although there are many potential factors leading to suicide, it's hard to deny the significant mental toll of having one's reputation continuously dragged through the mud, and of facing an avalanche of condemnation once the allegations gain traction.
This is not to dismiss or ignore the serious harm inflicted on victims; we must have adequate, and well-funded support services to address the range of harms suffered by victims (physical, mental, emotional, or financial); for instance, by having domestic violence shelters, or having programmes to support victims in their healing.
The earlier example just shows how trial by Twitter can have significant consequences on the accused even before wrongdoing is established or, in Frederiksson’s case, before the allegations are dismissed. It’s an example of the real, significant harms of failing to have a fair process in determining guilt, of ‘trial by media’, and of depriving the accused of the basic principle of due process.
I’d like to ask the reader to imagine a scenario:
Imagine that you’re in that very small minority who have been falsely accused, imagine you’re in their shoes. The accusations gain traction and have been seen by thousands, if not more, including by family, friends, peers, and strangers. Your ‘guilt’ is determined by everyone based on out-of-context or anonymous evidence that can’t be tested or challenged. You have no real opportunity to defend yourself; whether you make categorical denials or stay silent, your guilt is affirmed, solidified.
You’re washed over by waves of insults and condemnations; hundreds or thousands of notifications, tweet, after re-tweet, after re-tweet. You lose your job, or if you’re self-employed, you lose clients. You lose friends too, and those that stick by you are also attacked and censured. People are wary of being associated with you. Since there’s no ‘end’ point to this, all of this happens indefinitely. It feels like it will never end.
If any of us were ever in this position, what kind of process would we like to have in place? Does ‘trial by Twitter’ ensure a fair process? I think it’s also worth asking, “why we, the general public, [should be] called upon to decide the innocence or guilt” of the accused in the first place. Deciding one’s guilt is a solemn and heavy responsibility. Do we deserve to do this?
It’s possible and indeed necessary for us to appreciate both harms: the significant harm experienced by victims of sexual crimes, and the harm experienced by those who have been falsely accused. There’s a balance between these conflicting harms and risks, i.e. the risk of failing to bring a perpetrator to justice, versus the risk of falsely accusing an innocent person. The weight of each side of this balance shouldn’t be trivialised or dismissed.
Before an accused person is socially or legally sanctioned, allegations of sexual crimes should go through a fair process. That is, if we wish to properly account for these conflicting risks, and respect the principle that everyone – both the complainant and the accused – is entitled to a fair process. It’s also the best bet we have to distinguish between genuine denials of guilt by the falsely accused, and false denials of guilt by perpetrators (i.e. perpetrators using the ‘Deny, Attack, Reverse Victim and Offender (Darvo)’ tactic to deceive and be seen as innocent).
Ideally, we should have procedures that ensure complainants feel safe in coming forward, seriously investigate their allegations, and provide them support. And, the procedure should also allow the accused to be heard; “audiatur et altera pars” (the other side shall be heard as well). The heavy responsibility of determining the accused’s guilt and appropriate sanction should fall on an independent third party.
The process, like Lady Justice’s scales, should act as a balancing mechanism for the conflicting sides, and like her blindfold, the independent and impartial person should resolve the dispute and determine in whose favour the balance lies.
Believe all victims?
When ‘false accusations’ are brought up, a point I’ve seen some people raise is that women have nothing to gain from falsely accusing someone. The connotation is that there’s no motive for women, or any complainant, to make false accusations.
Acknowledging the fact that humans aren’t perfect and some lie, isn’t to be mistaken with the position that all or most accusations of sexual assault are ill-motivated and, hence, shouldn’t be taken seriously. The former is true, the latter is baseless.
Humans, of any gender, are flawed and capable of non-good faith motives. We can accept both these statements at the same time: one, that complainants face significant risks in coming forward, and that many accusations are genuine; and two, that people can have motives to make false accusations.
People can have complex motivations for falsely accusing someone of a sexual crime, ranging from wanting an alibi, to seeking revenge, sympathy or attention, or it may even be linked to a mental health issue (which should be addressed, not stigmatised). Importantly, recognising these two statements means that we should have procedures that are fair to both the complainant and the accused.
Phrases I’ve often seen on social media are ‘believe all women’, ‘believe all survivors’, or ‘believe all victims’. In this piece, I’ve taken these phrases as meaning ‘believe all complainants* of sexual crimes’. I think the broad implications of this phrase are captured aptly by ‘The Secret Barrister’: “[t]o not subscribe to automatic belief is painted as a continued betrayal of the vulnerable. #IBelieveHer is the hashtag to which all good progressives must adhere. And this is dangerous.”
What should ‘believe all complainants’ mean, or entail? It should mean that, as part of a fair and independent process, their accusations are taken seriously and investigated, and that complainants are treated fairly and with sensitivity.
But, again, there’s a line between seriously investigating claims, and believing in the truth of an allegation. Bearing in mind the balance between the potential harm to the victim and other individuals in the event of a genuine accusation, versus the potential harm to the accused in the event of a false accusation, believing complainants should not entail that we automatically and absolutely crucify the accused and their reputation.
Immediately and conclusively believing in the truth of all accusations would mean that false accusations are upheld, too. This would not challenge the patriarchy or misogyny, or vindicate structural injustices against women. It wouldn’t be in the interests of victims, either; victims have no interest in false accusations being upheld. Two wrongs don’t make a right.
I think it’s worth making a quick point on ‘credible accusations’ made on social media, or other public avenues. Accusations against named individuals don’t become credible merely by the complainant saying so, not least on the basis of out-of-context, unverified evidence like screenshots.
Accusations, especially if they can cast an indefinite shadow over the accused, should be objectively investigated, evaluated, and, if there are doubts, challenged with sensitivity.
As an example, the 2017 New York Times article that reported multiple accusations against Harvey Weinstein shows us how objective investigations are key in establishing credibility. The accusations were widely deemed to be credible, and have also been regarded as sparking the #MeToo movement.
Some of the factors for the credibility of the accusations were that they were reported by reputable and objective third parties, namely two journalists at the New York Times who had carried out thorough investigations into the accusations, and who had no bias or appearance of bias relating to the accusations.
An example of an appearance of bias may be if the journalists had personally known Weinstein or the complainants prior to their investigations, or, alternatively, if they are one of the complainants themselves.
If there are doubts relating to accusations, both fairness and objectivity require them to be scrutinised and challenged. The Rolling Stone’s 2014 piece of an alleged gang rape, and its later retraction, show how important it is for accusations to be challenged when there are doubts as to their credibility; an independent investigation into the story later found that the magazine had published the accusations without following the ‘basic journalistic practice’ of verifying the account of the complainant. The story is now widely considered to be discredited.
At the risk of sounding like a broken record, the accused should have the opportunity to be heard in a fair process, which includes an objective and independent evaluation or investigation before the social or legal determination of their guilt and sanction (i.e. inflicting lasting reputational damage). This is a legal entitlement in formal mechanisms, such as the court or police. But if we recognise the moral value of ‘due process’, it’s a moral entitlement too; one we should demand, practice and uphold in whatever setting, including social media.
Moving forward
If, at the moment, the principle of due process can’t be fully applied on social media, what can we do? To answer this, I’ve resonated a lot with what ‘The Secret Barrister’ has said:
“Where, for whatever reason – and I pass no judgement – people elect not to try their complaints in formal procedures, but to send up a flare into the ether of social or other media, the only fair thing to do, it appears to me, is to mimic as best we can the rubrics of due process. If, as is probably the reality, we cannot persuade the juries of social media to faithfully apply formal legal standards to every case, the very least compromise should be neutrality. #IBelieve is as dangerous and unreasonable a starting position as #They’reAllLiars. If we must litigate in hashtags, I’d respectfully suggest we vote enthusiastically, loudly and proudly for #IDon’tKnow.” (own emphasis)
That is, saying “I don’t know” when deciding, for ourselves, whether to believe in the truth of an allegation. It’s perhaps also recognising that we, as the general public, don’t deserve to determine someone’s guilt.
There’s, understandably, a strong “moral imperative not to ‘let down another victim’’ and an urge to believe the truth of allegations made on social media, given the history of women’s truthful claims being systematically disbelieved or even if we ourselves can personally relate to the allegations. But, this urge should be resisted. The fact that there are a lot of truthful claims “does not diminish the importance of weeding out the malicious, mistaken or confabulated; nor does it of itself tell us anything about the merits of any given allegation.” (The Secret Barrister)
Just before I end this piece, I’d like to address another point, namely how social media interactions about #MeToo allegations can become vehement, and venomous.
It’s clear that we have common values and aims. Many of us, of any gender, would agree with these statements. A person’s autonomy and consent in their private and intimate relations must be respected. Existing procedures to deal with allegations of sexual crimes are inadequate, and there must be fair and accessible procedures where complainants are taken seriously. The principle of fair process applies to everyone, and ‘everyone’ includes the complainant and the accused.
Our views on the best way to achieve these aims may differ, but our differences shouldn’t distract us or dismiss these commonalities or, worse, breed animosity and make us enemies. Disagreements are inevitable, but descending into mean-spirited, ad hominem, antagonising remarks isn’t. We can and should engage with different, opposing views graciously.
There are important conversations to be had in achieving these aims, such as whether social media is a fair way of making accusations, determining one’s guilt, and inflicting serious reputational damage. Notwithstanding its potential in creating dialogue and pushing for reform, social media has significant risks – i.e., it can promote outrage, ‘centralised echo chambers’, the role of ‘biased influencers’ in amplifying difference and bias, and polarisation. It may even be ‘downgrading our civility and our decency’. These risks can lead to real harm, as Frederiksson’s case shows us.
We should remember our common aims of ensuring fairness and justice to everyone. In striving towards these aims, we should have conversations about how to improve existing procedures or platforms, or create new ones. We should strive towards these aims in civil solidarity rather than divisive, destructive hostility.
Ultimately, the principle of due process to an individual shouldn't be sacrificed on the altar of hoping to vindicate the many. With the scales in hand and the blindfold worn, we should strive to ensure fairness and justice. For everyone.
ADEELA HARIS is a pseudonym for a Malaysian woman from Kuala Lumpur.
*In this piece, ‘victim’ refers to ‘a person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence’ (UK Government’s ‘Code of Practice for Victims in England and Wales’). It’s acknowledged that the reality of suffering harm may not result in legal recognition, i.e. a victim may not want to prove or may not succeed in proving their case in court. ‘Complainant’ refers to a person who has made an allegation of a crime; the term includes victims who have suffered harm (including those who succeed in proving their case, and those who don’t), and those who make false accusations.
