Internet Shaming and Rape Accusations

I recently read a comment by an online poster that I found to be perfectly crafted and thoughtful. I will reprint it below, but first, some preliminary comments about the age of the Internet (and public shaming thereon) as it relates to rape accusations in particular.

There seems to be a generally category error - or perhaps equivocation would be the more accurate word - when people discuss constitutional protections, and particularly due process, in the context of informal punishment and public shaming. The same error occurs in discussions of "free speech." There are two very distinct levels of each concept: one, the formal legal level, and the other a more broad and informal scope of conceptual exploration. But because individuals tend to use the same terms ("free speech," "due process") regardless of the intended level at which a topic is being discussed, arguments often devolve into impotent screaming matches in which people are basically reduced to William James's squirrel-and-tree-musing friends. Are you going "around" the squirrel? Well, it depends on what you mean by "around," obviously.

Are due process rights implicated in social media shaming? It depends on what you mean by "due process."

What am I babbling about? A semi-public figure accused her former boyfriend of rape. She didn't name him, but his identity was quickly outed. The public outcry was swift and deafening, and it is safe to say that the man's reputation is demolished. As it turns out, another ex-girlfriend accused him of the same behavior after the initial accuser went public. It is weightier evidence to have two accusers, no doubt, but still not dispositive. The story of Emily Sulkowitz, in which she appears to have had friends level similar accusations against her alleged rapist to bolster her own story, should serve as a warning that multiple accusations alone may not be sufficient to deservedly trash an accused in the public square. (As it turns out from overwhelming text message evidence, Emily was in love with the accused and leveled her allegations after her feelings were unrequited. She also appears to have fairly significant mental health issues.)

Back to the underlying story, the accused finally issued a public statement noting that the destruction of his reputation failed to afford him any "due process." The scorn heaped upon him for this sentiment was expected, but not entirely fair. Obviously, internet shaming  isn't covered by formal legal layers of due process protections. There is no state actor involved or threat of official imposition of life, liberty, or property restriction.

If here were talking about such formal protections, his pleas would be rather nonsensical. But clearly he was not. This guy was talking about due process on a broader and more informal plane: people were assuming the accusations were true solely by virtue of the accusations having been leveled, and the internet world was effectively making it impossible for the guy to pursue any gainful career (or, hell, show his face in public). It's not as though internet shaming has no substantial effect on a person's life. Quite the contrary; such shaming can basically destroy a person's life.

And often, it's impossible to turn the clock back if a rape accusation turn out to be untrue. Or half-true. That stink just does not wash off, no matter how innocent the person might be.

Same goes with "free speech" issues. Those on the left are quick to point out that deplatforming a person who was set for a speaking engagement doesn't constitute an abridgement of "free speech," because no government actor is involved in the abridgment. And that's technically true, if we're talking about free speech in the strictly-legal First Amendment sense. But when those on the right deem this a free speech violation, they are clearly speaking in a less formal, "marketplace of ideas" sense of the term. Dismissing their complaints by pointing to the absence of official government action misses the point entirely, and it often strikes me as a way of ignoring the deleterious social effects of refusing to engage the thoughts and ideas of those whose opinions and beliefs might differ radically from one's own. Is shouting someone down really the most effective way of combating his ideas? Is refusing to listen going to progress one's own social ideology, or is it going to drive your ideological opponent to become even louder, more obnoxious, more petulant? In the age of the troll, I'm afraid the latter is more likely.

So, on to the comment that I encountered. It was made by Kinja commenter IskaralPust, who was responding to another commenter committing the error discussed above: deriding the accused for having the temerity to mention his "due process rights" in the context of social media shaming, without taking the time to consider the validity of his underlying concerns:

"Well, you’re certainly right that constitutional due process does not apply to internet shaming by private actors. But, my take on what he was saying was more that people should seriously consider the permanent and irreparable harm mass shaming in the social media age can do, given the fact that due process and other legal restrictions don’t apply. While he can sue for defamation, as a public figure he would have to prove actual malice (which in this case basically means that he would have to prove by clear and convincing evidence that his accuser was lying). Against the original accuser that would be hard, against everyone else who is now spreading the allegation without knowledge it would be impossible. 

Given the courts’ general refusal to impose prior restraints on speech not already found to be specifically defamatory, and the various obstacles to obtaining relief after the fact, people in Hartmann’s position are essentially without practical recourse for preserving their reputation. Although they can fight back with speech of their own (and media access is part of the rationale for the different defamation standard applied to public figures) once the damage is done, it is excessively hard to repair.

I’m not sure what the answer is. Hartmann may very well be a rapist and an abuser (I have no reason to think these women would lie) in which case, his reputation deserves to be tarnished. In many cases, the criminal justice system (or even civil litigation) is not a meaningful option for rape victims, and judicial process may often do more harm (by re-traumatizing victims) than good. In those cases, it may well be that public shaming is the best thing a just society can do. Still, at what point is there enough evidence, or what level of public exposure is sufficient, to justify the real emotional devastation that shaming entails? We are lying if we pretend that shame, and the destruction of a reputation, is not a real harm, even if it is not the same as a state restriction of physical liberty.
I do think that people who argue against jumping to conclusions are not necessarily wrong. First of all, no one should begin by disbelieving a victim, but neither, necessarily, should they accept a victim’s claim without inquiry. I think a lot depends on the particular role of whoever is in a position of judgment. Police officers and prosecutors should investigate and prosecute rape as they do any other accusation of crime, but with particular sensitivity to the nature of trauma. They should not harass a victim, but they should pursue all leads necessary to accomplish justice. 

Juries and judges, even more, should be impartial, and should require the state to prove its claims beyond a reasonable doubt (or, in a civil case, should require plaintiffs to prove their case by a preponderance of the evidence). College sexual misconduct panels and other administrative bodies, or employers, should consistently follow their own policies and guidelines, which may permissibly require much less rigorous procedure than a court (within the bounds of relevant law). Therapists and family/friends of a victim, on the other hand, should receive an account of rape with unconditional positive regard and support, because their particular role is not to investigate or distrust.

As for the media, and the public, I think it is probably important (if not to the same extent as for a jury) to remain unbiased, given the incredibly powerful nature of both rape and accusations of rape. There may be a time for public shaming (Cosby comes to mind) but, given the factual complexities with which many audiences (including the Gawker readership) are often unfamiliar, withholding judgment in the absence of real proof is probably advisable. I don’t think most people involved in this discussion would want their reputations obliterated on the amount of information that is usually disseminated in cases like this. Since public ridicule and scorn of accused perpetrators rarely helps the victim (or anyone else) and can, at its worst, do great damage, its application should, at a minimum, be restricted to a very few deserving situations."

Well said.