Sunday, December 17, 2017
Opinion

Column: More barroom brawl than search for justice

Welcome to the Court of Public Opinion. We have continued People vs. Bieber (2014) so that we can instead relitigate Allen vs. Farrow (1992).

To be perfectly clear, the court must state up front that in the Court of Public Opinion there are no rules of evidence, no burdens of proof, no cross-examinations and no standards of admissibility. There are no questions and also no answers. Also, please be aware that in the Court of Public Opinion, choosing silence or doubt is itself a prosecutable offense.

Look, I am as maddened as the next guy at the persistent inability of our legal system to conclusively resolve so many disputed sexual assault cases. Under the very best of circumstances, the system strains to uncover the truth. And under the strain of 20-plus years and dueling judges, the system often just buckles.

I am as aware as anyone of the baked-in asymmetry that pervades a culture that encourages violence and degradation of women, and that silences their reports with shame. But in the current debate about what happened between Woody Allen and Dylan Farrow in a Connecticut farmhouse in 1992, it massively disserves and undermines the most basic goals of the legal system when we import legal concepts into what is essentially a barroom brawl. This widespread litigation by hashtag, all dressed up in legal language and presumptions, isn't getting us any closer to justice.

After New York Times op-ed columnist Nick Kristof published Dylan Farrow's letter detailing the abuse she experienced as a child, Aaron Bady wrote a fantastic piece for the New Inquiry about rape culture and violence to women, but he rooted it in the baffling notion that Farrow must be afforded the same "presumption of innocence" as Allen. This is a nonlegal deployment of a legal notion that sets up readers to pick sides without hearing all of the actual evidence.

Evidence in this case has been destroyed. Experts were never cross-examined. Different judges came to different conclusions. What evidence are we weighing? What "court" are we convening here, and what are the rules of the road? Do we even take conflicting evidence into consideration? What kind of evidence is "admissible"? Do we consider that some of the advocates on each side are cretins? I have no idea. In the Court of Public Opinion, the one-eyed man with the most Twitter followers is king.

Let's be clear about our terms here: You are entitled to your opinions about what happened between Allen and Farrow in 1992, and you are entitled to your accompanying opinions about whether children can be coached to lie and whether rich men transgress boundaries without consequence. Failing to have an opinion about the latter suggests you live in a hole, but failing to have an opinion about the former is not a moral lapse.

You are also entitled to the many and conflicting inferences you may draw from the articles summarizing the evidence, and the articles summarizing the articles summarizing the evidence, and the statements made by the now-28-year-old Farrow herself, and by Allen responding that her accusation is "disgraceful," and now by her brother Moses Farrow claiming that Allen is being unjustly accused. I have opinions as well.

But recognize that these are opinions and inferences, not "evidence." They are not "cases," and we are not adjudicating this mess in any kind of court. Mob justice often has all the trappings of an unbiased search for truth, but it's actually just an outpouring of rage and blame. We have statutes of limitation, not to punish complaining witnesses but because the legal system recognizes that memories and evidence are degraded over time, even as umbrage burns brighter than ever.

The Court of Public Opinion is what we used to call villagers with flaming torches. It has no rules, no arbiter, no mechanism at all for separating truth from lies. So go ahead and tweet your truth or publicly shame someone who is tweeting hers, but don't believe for an instant that this is how complicated factual disputes get resolved or that this will change hearts and minds about our woefully anti-woman, anti-victim culture.

The Court of Public Opinion rarely brings about justice for the parties in a lawsuit because the Court of Public Opinion is usually more about us than them. The one thing the legal system carefully protects against is the perfect narcissism of believing that we are the only ones in the courtroom who matter. And that's the one quality our media most often rewards.

Dahlia Lithwick writes about the courts and the law. © 2014 Slate

 
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