[Crossposted at TADA and Alas. Feminists only may comment on this post at “Alas.” Non-feminists and feminists are both welcome to comment at TADA.]
On her blog, Noirin Shirley writes about an after-party at ApacheCon:
And then I went to the loo, and as I was about to go in, Florian Leibert, who had been speaking in the Hadoop track, called me over, and asked if he could talk to me.
I’m on the board of Apache. I’m responsible for our conferences. I work on community development and mentoring. If you’re at an Apache event and you want help, information, encouragement, answers, I will always do my best to provide. So this wasn’t an unusual request, and it wasn’t one I expected to end the way it did.
He brought me in to the snug, and sat up on a stool. He grabbed me, pulled me in to him, and kissed me. I tried to push him off, and told him I wasn’t interested (I may have been less eloquent, but I don’t think I was less clear). He responded by jamming his hand into my underwear and fumbling.
I broke away, headed back to the group, and hid behind some of the bigger, burlier infra guys, while Bill sorted out all the people who’d left stuff in my room, so that I could reasonably escape.
Other than Noirin Shirley and Florian Leibert themselves, there were apparently no witnesses to this incident, although Greg Stein noticed Noirin looking noticeably shaken afterward, and she told him “creepy stuff happened.”
Looking through the comments on her post, there are many supportive comments. But there are also many comments attacking her. For instance, this comment from “Chuck”:
The guy who touched you is a jerk and an embarassment to the male sex.
However, I have no sympathy for you. You dress provocatively and expect men to leave you alone. When a woman does that, it’s exactly analogous to a man using his physical strength to overpower a woman. This is because just as women usually have no defense against a stronger male, men have no or little defense against their hormones when they see certain parts of the female body exposed in front of them. Dressing as you did is unfair; it puts undue burden on the men around you by taking advantage of their weak point. You’re foolish and naive for expecting to escape the evening without incident.
She was wearing a short skirt with bike shorts underneath. You know, I’m a guy. I’ve seen women wearing short skirts — or less — approximately a zillion billion times in my life. Somehow, I’ve managed to never stick my hands into any woman’s underwear if she didn’t want me to. And most men could say the same. Really not too much to ask.
Another complaint — and one that I’m focusing on in this post — is that it’s wrong of Noirin to mention her alleged attacker’s name in a blog post, when he hasn’t been proven guilty in a court of law. (I just had a debate about this with Jeff Schader on twitter.)
Schader’s ((I’m calling him “Schader,” not “Jeff,” not because I want to be unfriendly, but to distinguish Jeff Schader from Jeff my co-blogger at Alas.)) point, as I understand it, is that Noirin Shirley might be lying. We can’t know for sure. Until Leibert is proven guilty in a court of law, Schader says, it’s unfair for people to react as if Shirley is telling the truth (for instance, by saying “I’m sorry you went through this” to Shirley). For all we know, Leibert is having his reputation unjustly destroyed by a malicious or deluded liar. In Schader’s view, it’s morally wrong — and perhaps should be forbidden — for Shirley to include Leibert’s name when describing what she says happened to her.
I don’t agree.
Schader is certainly correct to say that Shirley might be lying. False accusations happen. Then again, Shirley might be telling the truth. Sexual assaults happen, too (and I’m pretty sure they happen more often).
It’s unjust for Shirley to use Leibert’s name if she’s making the thing up. But — and this is a point that Schader, bizarrely, shows no concern for — if she’s telling the truth, it’s unfair to expect Shirley to protect the reputation of her assailant by not naming him. It’s her life, and — assuming she’s telling the truth — it would be a dreadful imposition on her freedom of speech to demand that she censor herself on her own blog.
And saying “she should take it to the courts” is no answer. It’s very unlikely that any prosecutor would take this case, because it would be nearly impossible to prove; but lack of evidence isn’t proof that Shirley’s lying. ((Although going into this is beyond the scope of this post, I should note that there are legitimate reasons some victims of assault prefer not to go to the police.))
No matter which position we take, we’re potentially being unfair to someone. If Leibert is innocent, then it’s unfair for Shirley to mention his name on her blog. If Leibert is guilty, then it’s unfair to demand that Shirley censor herself to protect Leibert’s reputation. What Schader (and others who take his position) never explain is, why do they consider possible unfairness to Leibert so much more important and pressing than possible unfairness to Shirley? Why is unfairness to Leibert an enormous concern, but unfairness to Shirley no concern at all?
On her blog, Shirley wrote:
It’s not the first time something like this has happened to me, at all. It’s not the first time it’s happened to me at a tech conference. But it is the first time I’ve spoken out about it in this way, because I’m tired of the sense that some idiot can ruin my day and never have to answer for it. I’m tired of the fear. I’m tired of people who think I should wear something different. I’m tired of people who think I should avoid having a beer in case my vigilance lapses for a moment. I’m tired of people who say that guys can’t read me right and I have to read them, and avoid giving the wrong impression.
But I don’t give the wrong impression, and it’s simply not true that guys can’t read me right. I don’t want to be assaulted, and the vast majority of guys read that just fine. It is not my job to avoid getting assaulted. It is everyone else’s job to avoid assaulting me. Dozens of guys succeeded at that job, across the week. In the pub, in the stairwell, on the MARTA, in my bedroom.
One guy failed, and it’s his fault.
I believe Shirley. But Schader is right, that’s just my opinion, I don’t know for sure.
But I do know this: A terrible injustice happens every time someone is accused of committing a sexual assault. Sometimes it’s a true accusation, sometimes it’s a false accusation, but either way someone is suffering unjustly.
But what are the results of a rule (either moral or legal) such as Schader suggests — a rule saying that, unless there’s a “guilty” verdict in a courtroom, alleged assailants must never be named?
If such a rule existed, it would make things even more unfair for those who really are sexually assaulted.
That doesn’t make sense to me. We should try to help those who are falsely accused — but not at the price of making things worse for those who are sexually assaulted. That’s not making things genuinely fairer; it’s just saying that it’s okay to punish the sexually assaulted to help the falsely accused. It’s saying, in effect, that people who are falsely accused matter more than people who are sexually assaulted.
We can’t get rid of the unfairness inherent in these cases. But we can choose not to shift that burden entirely onto one party. Taking freedom of speech away from all people who are sexually assaulted is not an acceptable or fair way of helping the falsely accused.
One last point. Tellingly, I’ve never seen anyone say that men who say they’ve been falsely accused should shut up about it until they can prove the false accusation in a court of law. Why not? If women are expected to shut up to protect the reputations of men who assault them, shouldn’t men be likewise expected to shut up to protect the reputations of women who falsely accuse them?
UPDATE: Jeff Schader replies in comments at TADA.
Amp, how would you react if someone were to post a story about you sticking your hand down her pants while you were signing her copy of ‘How Mirka got her sword?’ Oh, it happened when there were no other witnesses, and she is not going to press any charges, because she could never prove it. She does have the signed book, and she was pretty upset about something that day. And because she posts on the right forum, her story comes up on the first page when your name is google’d.
I am sure that there are laws that govern what you can write about people, and in how much trouble you can get for it. Honestly, I have absolutely no clue what those laws say in Georgia. I know what they are in France and in Great Britain, and I know that there is a world of difference between those two – for example, Noirin Shirley would be better off doing what she did in France, rather than in Britain.
When they ask me to write the law for Sebastiland, it will read something like “If your accusation causes any measurable harm and you cannot prove its veracity, you’re liable for the damages” Yes, there would be a way to inform law enforcement, and if the investigators were to leak the information to anyone not involved, the liability would be theirs.
I am not a lawmaker. I do not want to be one. I would be a terrible one. But I do not think it is a good idea to allow people to destroy others’ reputation without any proof. Yes, absolutely, the burden of proof would shield some criminals. I just happen to believe that without some rules for those making accusations, many innocents will see their lives destroyed.
By the way, in this particular case, I personally believe that the woman is saying the truth. Why? Gut feeling, but mostly because she filed charges with the police, and because the accused has more or less gone into hiding. I also realize that my feelings are irrational – but hey, I have no obligation before the law to be right.
Sebastian, of course I’d feel terrible if someone made a false accusation about me.
I’d also feel terrible if someone sexually assaulted me, but there were no witnesses so I’m not allowed to say anything about it publicly.
The legal questions in this case are complicated, because she lives in Switzerland (iirc) while he lives in the US (iirc). In the USA, as I understand it (and maybe I don’t), you have to be able to prove that the statement was untrue in order to successfully sue for defamation. If so, then for the same reason she probably couldn’t successfully prosecute him for sexual assault, he probably can’t successfully sue her for defamation — in both cases, there isn’t enough evidence. However, I have no idea what the laws in Switzerland would say.
I think that free speech is really, really important. The law in Sebastianland basically errs on the side of restricting free speech; if you can’t affirmatively prove what you say is true, then you’re legally liable for saying it. In Ampersandland, the law would err on the side of allowing free speech, and would only restrict it if the speech could be proven to be false.
Regarding the accused going into hiding, my guess is that he’s waiting until his lawyers have thoroughly looked at all his options before he says anything in public. If so, he’s doing the smart thing, and to me that doesn’t imply anything one way or the other about if he’s guilty.
I don’t know how one could be critical of her decision without your underlying assumption being that she is lying. Saying, “You shouldn’t have posted that because you might be lying,” is something you could say to any blogger or writer, at any time, about any post. Shirley obviously knows whether she is lying or not. If I believe you’re telling the truth, then there’s no reason to suggest that you shouldn’t have posted, so the stance that Schader is taking is functionally equivalent to, “You’re lying.”
That’s oddly hypocritical, since he’s basically doing what he criticizes: publicly accusing a person of doing something terrible. Except in his case, he is in no position to know whether his accusation is correct.
I find it odd that she is being held responsible for the reactions of the media/other bloggers. Did she hold a gun to their heads and force them to repeat what she said? No, they have their own agency and it’s their own responsibility for wrecking his life, if it is so wrecked. The answer here isn’t that she should have kept quiet, it’s people who don’t know a damn about whether or not something is true shouldn’t pass it on.
I wonder whether people would say similar things about hollaback. Is it wrong to post the picture of someone who flashs you on the subway/ shouts innapropiete things at you on the street. Still wrong if you can actually see that they are exposing themselves? (you might have asked them to do it)
There is also a charming post available on his blog now, detailing his counterargument, which goes into more detail on why he think she was lying while stating repeatedly that he is not accusing her of lying. As with his twitter comments, the main thrust of the argument seems to be that she did not respond to the situation the way he thinks she ought to (immediately going to the police) and that because she points out the culture of rape and sexual invasiveness that she has past experience with, this indicates a consistency of bad behaviour on her part – either in terms of repeatedly provoking unwanted advances or grossly misinterpreting the actions of men (he kind of goes for both). Either way, totally not rape culture. Oh, and a woman’s every action must be handled as if it were formal criminal proceedings at all times because otherwise she might get it into her head that she is able to adequately evaluate her own experiences and a man might be shamed. He doesn’t delve more deeply into the speech restrictions than that.
There is pushback in the comments, including corrections of fact from other people present with Noirin at the bar and who helped her afterward. I’m going to go shower now and I hope that I ever feel clean again.
Your scenario about Amp has no validity as a hypothetical, because it is about Amp. Amp doesn’t go around assaulting women. Therefore, the only accusations against him would be false; his only natural hypothetical feeling would be hurt; our only appropriate hypothetical feeling would be sympathy. We all care about Amp because he is a completely different sort of man from the man described in this story.
I gather that you are like Amp, and that you therefore identify with a falsely-accused man, and not with a guilty man.
How do you think an actual attacker would feel about being called out? Do you care? Would you care very much if that hypothetical guy’s feelings were hurt? Would it bother you if his friends stopped speaking to him, or if women were afraid of him? Would it bother you if he were humiliated or ostracized, especially given that there’s no chance of him ever spending a day in jail?
Sebastian, there are no laws against making an accusation that happens to be true. In the United States, a libel plaintiff must prove deception. In other countries, plaintiffs have different obligations, but defendants have no legal duty to keep quiet because they have no proof besides their own testimony. It may be insufficient, and it may be vulnerable, but the law does not consider it invalid.
The law doesn’t prohibit anyone from speaking the truth as such, even when it’s serious and negative. Morally speaking, I see no reason to criticize someone for telling the truth–especially when it’s serious and negative. I think that’s a really dangerous standard. If an attacker does not even face social penalties, so long as he manages to commit an assault privately (you know, the usual way), then how can anyone be safe?
You admit that Noirin seems to be speaking the truth, and I note that accusers in general do not lie. They have the right to complain about the assaults that they have experienced, and their attackers have no right to insist that they wait for an unobtainable verdict when no criminal penalties attach to their words. In fact, I am grateful to Noirin for my own sake, since she has been brave enough to warn everyone.
I would also point out that women can be criticized for failing to speak up immediately and unambiguously–Noirin is irresponsible for accusing, but another woman might be irresponsible for waiting. This seems to be less about judicious use of public scrutiny and opprobrium and more about…well, the opposite.
Just to make a tangential point about Chuck’s awful rant:
Let’s see. Man uses unreasonable advantage -> woman gets hurt.
Woman uses (what Chuck considers to be) unreasonable advantage -> woman gets hurt.
I think these things are not exactly analogous.
Thanks for posting about this story. It’s a shame tech crunch pulled it. But, I think it’s going to make it’s way around the Internets anyway.
The really shocking thing about people arguing that she shouldn’t write about a crime committed against her is that the commentors are so adamantly defending someone who hasn’t even denied the events.
Favorite comment at the other site:
“As soon as we don’t name folks accused of shoplifting, murder or DUI before conviction, Jeff’s position will make perfect sense.”
Jehnhi, I am not sure what your comment means. In Britain, any journalist naming “folks accused of shoplifting, murder or DUI before conviction” has a damn good chance to end up in jail. In France, it is also very likely. It is clear that this is not the case in the US, but I assure you, many people are not aware of this. I have been living in the States for more than ten years, and I had no idea that the laws were so different.
Speaking for myself, I like our way better. Unlike some of the assholes on that blog, I believe that I can control whether I commit a crime. I also know that I have little control over being accused of many, many crimes. I would like the law to protect me, cowardly wuss that I am. I know people who will not be alone with a woman that is not their wife, and there is a woman working in Purchasing that will not be in her office alone (the door of that office stays mostly closed). I am starting to think that their behaviour is not as irrational as I’ve always believed.
Well in this case we’re not talking about journalists, we’re talking about crime victims speaking publicly about the crime and who they say committed it. Surely it is not against the law for a victim to speak publicly about what happened to her in France or Britain?
Anyone could be accused of anything at any time. But to live your life assuming that any time you are alone with a woman there is a real chance that she will accuse you of raping her is to admit that you believe women are significantly more likely to be vindictive, life-ruining liars than anybody else is. Is there really any basis in fact here? Or do you think it is possible that you (or your coworkers) have swallowed some vicious cultural narratives about women?
You know what fascinates me about this argument?
Nowhere in this little balance sheet do you mention the possibility of being raped or assaulted or otherwise victimized yourself. Being raped or assaulted is at least as harmful as being accused of rape or assault, right?
What do you want in that eventuality? As the victim of assault or rape? Do you think you should be prohibited from saying anything about what happened to you unless and until you get a conviction in court? Bearing in mind that convictions are extremely rare?
This claim appears to be false. How else would we know that Dale McAlpine was charged with causing “harassment, alarm or distress” after a homosexual police community support officer (PCSO) overheard him reciting a number of “sins” referred to in the Bible, including blasphemy, drunkenness and same sex relationships?
This sort of notice by British journalists doesn’t seem to be all that rare.
Piny, I have not been the victim of rape. On the other hand, I grew up in one of Paris’s worst arrondissements, and I have been physically assaulted several times. I have resolved each and every one of these to my satisfaction – I fully expect that I would resolve a rape the same way.
As an aside, I do not believe that being raped or assaulted is always as harmful as being falsely accused of rape. Given the choice of being subjected to what Noirin Shirley described, even by the most repulsive (non-contagious) human on Earth and being in Florian Leibert’s shoes right now, I would take the assault. This is without any regard of the veracity of the accusation, or to my ability to defend myself against that hypothetical human.
Why? Two reasons: First and foremost, because that public accusation of molestation has changed his life forever. Second, because the worst part of the physical assaults I have suffered was not the pain (irrelevant) or the damage (I fully recovered, apart from few scars that my fiancée likes) but the feeling of helplessness. And there is nothing you can do to fight an unprovable accusation – you can only hope that those you care about trust you enough to believe you.
Oh, and by the way, whoever that Chuck creature is, please do not bring him in the discussion. Anyone who admits to losing control over his actions when he sees female parts exposed is beneath contempt. Anyone who accuses other men of this should get his ass kicked.
And there is nothing you can do to fight an unprovable accusation – you can only hope that those you care about trust you enough to believe you.
Likewise, there is no way to obtain justice after you have been the subject of an unprovable assault. Assume for the moment that Shirley is telling the truth. What should she do? Smile and keep it to herself? What about the damage being done to her reputation and sense of self by Schader’s accusations? Does she deserve no consideration at all?
And, pffffft! goes any common ground for conversation.
I agree with this. When I was a kid, another (slightly older, far more sexually confident) kid reached down my underwear and felt around in an aggressive, assaultive way. I don’t think that’s worse than, say, someone who is falsely accused of rape and ends up going to prison for 20 years.
But so what? I don’t think that’s relevant at all. We don’t have to decide that one is worse than the other in order to take both sexual assault and false accusations seriously. And knowing that some of X are worse than some of Y doesn’t tell us anything at all about the questions at issue here.
Clearly, one of these two parties did something awful. Is there any utility here in implying that one of these horrible acts is better or worse than the other? Why even bring that up?
Dianne, she should do what everyone else does when victim of a crime – inform the authorities, follow the law as far as it will take her, and then decide whether she should go beyond that. Going to a public forum and making unprovable accusations would still be an option, but one that in my opinion should be punishable by law.
————–
Jake Squid, here is a statement:
Being raped or assaulted is always as harmful as being falsely accused by rape.
To prove that the above statement is untrue, it is sufficient that ONE of following statements is true.
1. Sometimes, being falsely accused of rape is more harmful than being raped.
2. Sometimes, being falsely accused of rape is more harmful than being assaulted.
As far as 1) is concerned, I was going to give an example of a recent murder in Marseille, where a father killed his daughter boyfriend because she explained her pregnancy as the consequence of rape. Her classmates testified that she had been with the boy for more than an year, and that she had been sneaking into his (and his roommates) room, apparently of her free will, during a recent trip through Italy. Or I could bring up a few cases where black men in the US have been lynched following indisputably false rape accusations. But I do not want to deal with the ‘Fate worse than death’ crowd, so I’ll pass on this one.
As for 2) lets consider the following two cases:
A) Fourth of July company party, a drunk woman who is starting to undress is asked to leave the warehouse. As she is being led out, she paws at the crotch of one of the men escorting her, and yells ‘Admit it, am I not making you hard!?’ She grabs his member through his pants, and pulls him around a bit. I saw this happen.
B) William McCaffrey in the Biurny Peguero rape case.
Now, please answer three questions:
Is A) a case of sexual assault?
Is B) a case of false accusation?
Was the man from case B harmed more than the man in case A?
If you answered yes, to all three questions, then 2 is true, and the original statement is untrue. If you answered no to any of these questions, then, yes, you are right, there is no common ground for conversation.
Ampersand, I brought it up because someone stated it in a previous post, and I disagreed.
she should do what everyone else does when victim of a crime – inform the authorities, follow the law as far as it will take her, and then decide whether she should go beyond that.
Her post strongly suggests that she went to the authorities (she notes the behavior of the Atlanta police in a positive manner). What “beyond that” are you suggesting she might decide to do?
Going to a public forum and making unprovable accusations would still be an option, but one that in my opinion should be punishable by law.
This is an un-American suggestion. Literally. The right to free speech is written into the constitution. Being unable to prove your assertions is not and not going to be illegal.
But supposing it was made illegal. Can you prove the accusation you made in your post above about the 4th of July party? What constitutes “proof”? Are people forbidden from ever discussing a trial in which the accused was acquitted? What about Daniel Faulkner’s widow? Should she be arrested for accusing Mumia Abu-Jamal of killing her husband? Should web sites telling Faulkner’s side of the story be illegal while “Free Mumia” sites are allowed since they are only defending against a possibly false accusation. (The case is, if I understand correctly, still in appeals so it can’t be taken as “proven” can it?)
Other examples: Do you want everyone who accused the Clintons of being involved in Foster’s death arrested? Should people who accuse Osama bin Laden of being involved in the 9/11 attacks be arrested-he hasn’t been convicted of it. What about the various accusations (false) that Saddam Hussein was involved? Shall we arrest Fox News?
Sebastian: All your examples prove, if all 3 statements are true, is that it is possible the one example of false accusation was worse than one example of sexual assault. Consider the following:
Scenario 1: A 90 year old man with terminal pancreatic cancer is given an overdose of morphine and dies of it after he begs a friend help him die. Active euthanasia is considered premeditated murder in the jurisdiction where this occurs.
Scenario 2: A public official takes a bribe to give a contract for the building of a bridge to a certain contractor. Unfortunately, the contractor does extremely sub-standard work and the bridge collapses during rush hour killing hundreds.
Do these two examples prove that taking a bribe is worse than premeditated murder?
Those two examples prove that a bribe can be worse than premeditated murder. Phrasing it that way would be more analogous to what Sebastian was saying.
Gosh, if “go to the law or STFU” is the standard here, then why not apply that to Leibert? If he’s been defamed by a false accusation, shouldn’t he be running to the police to report a false accusation and to a lawyer to sue Shirley?
And Sebastian, your statement that “everyone else” immediately calls the police when they’re the victim of a crime is either breathtakingly naive or completely disingenuous.
I mean, really? You think every abused husband runs right to the police the first time their wives slap them? That every woman who gets her ass grabbed on the subway immediately whips out her cellphone and calls 911 to report an assault? That every suburban homeowner who finds the neighbor kids walked in to her back yard to retrieve a lost ball is going to immediately report them for trespassing?
It’s a standard that doesn’t exist, particularly in sexual crimes, but you’re pretending it does so you can invent a gotcha.
Phil @21: Ok. But what neither example gives any indication of is how often X is worse than Y. I’m sure with a little creativity I could come up with a scenario in which littering was worse than genocide. That would not mean that littering is usually or ever has been in the real world worse than genocide only that it could be by some wild stretch of the imagination and incredibly improbable circumstances.
Likewise, Sebastian’s scenarios prove nothing but that a false accusation of sexual assault could, in some case, be worse than experiencing an assault. Ok, but again, so what? Does that mean that the average sexual assault is less “serious” than the average false accusation? Does that mean that we should imprison women who talk about being assaulted if they don’t have fifty witnesses, a DVD of the assault, and a signed confession from the assailant?
Or that we simply shouldn’t take sexual assault very seriously? Implicit in Sebastian’s statement that he has survived several assaults (none sexual, if I understand correctly) is a claim that Shirley is simply being whiny and should be tougher or more stoic or something. After all, Sebastian survived something different with a similar name several times and only mentions it to brag. I believe and hope Sebastian did not mean it that way, but the implication is there, even without conscious intent.
Dianne: What “beyond that” are you suggesting she might decide to do?
Exploring this usually ends with my being labeled a hypocrite. I do not think I am, so please hear me out.
“Beyond that” is exactly what it sounds like – you cross the line into crime, because you’re unhappy with the results of a law that you still want to keep on the books. In her case, it would include what she already did (which may not be prosecutable in the US) and, taken to extremes, would include her hiring someone to hold him down so she can humiliate him (slap him, walk over him, lecture him about what he did wrong, and ask him how he likes it)
Infantile revenge fantasy? Sure. But here are two things I ‘think’ ‘may’ have happened in a similar way. (Goes without saying, I was not involved in the planning or execution, I did not approve, I do not know for sure it happened, I will swear under oath that I find it very likely that it’s all the boasts of liars)
Case one: Elite school with a zero tolerance policy toward violence. Known asshole, mathematical genius, solid drug dealer connections. While high, sucker punches and scars the friend of an Eastern European thug and statutory rapes the sister of of his girlfriend. Next day turns up with a broken wrist, and cannot remember how it happened. Three weeks later, when high on a cocktail of drugs, (supposedly) gets a phone call to come down to the dorm desk to receive a package, and gets beaten up by (at least) the African manning the the desk. Multiple witnesses state that he used racial profanity while insisting that the desk person looks again and again for the nonexistent package, and that he started the fight by hitting the African on the back with a white cane and calling him kafir or keffer. No one ever admit to making the call or owning the cane. No one really believes that the asshole would really know what either kafir or keffer means, either.
The asshole is given a restraining order to stay away from the African, which automatically kicks him out of the Institute one term before graduation. No one else gets punished, in clear violation of the zero tolerance policy. This happened in the US, and is well documented. At least one other person on this website may recognize the case.
Case two: Case one is being discussed at a party. One of the ladies mentions a verbally abusive asshole in her lab, who is very careful to do so only when they are alone, and wonders what the person telling the story (heavily implying that it needed help to happen) could do about him. A few weeks later, on his way to the Institute (different institute) the asshole rear ends someone at a junction where such things happen at a regular basis. He claims the other car changed lanes as he was passing, and he had no chance to react. It turns out that the cops had gotten three 911 calls in the previous weeks, from people claiming that the asshole was driving dangerously near that exact junction. The three callers are unrelated (as far as everyone knows), and the rear-ended person is a poor, unemployed Hispanic who has a cousin who rooms with the brother of someone who works at a facility that is often hired by the company where the person telling the case one story works. But of course, six degrees of separation, coincidences happen, yada, yada… It’s just that at the party, the lab partner was brought up as someone who cherished his brand new car, had no history of reckless driving, and was paranoid about it getting scratched on the Institute’s parking lot, to the point of sticking flags stuff around it, and attaching foam tubes to its sides. He had been barely able to afford his car, which ended up heavily damaged, and got repossessed, badly hurting his finances and credit history.
So, to answer your question… assuming that these two incidents were really engineered, this is what I mean by ‘going beyond the law’. Going back to the original case, as far as I am concerned, what she did is right if she was assaulted, but should have happened only after she had exhausted her legal options, and should be still illegal to do if you cannot prove it. From what I understand, she went to the police after many posters questioned her posting before doing so, which by the way is perfectly understandable, given that she was shaken, angry, tired and had been drinking.
Oh, and to make something clear. I am not saying that the two stories are an example of how things should be. Assuming that the two incidents were engineered, they are examples of horrible abuse and vigilantism. They are just examples of people going beyond the law, which IS always an option. Sometimes for the good.
Illegal? You mean libel should be a criminal offense rather than an actionable tort?
No, I clearly do not understand the technical term ‘actionable tort’ well enough to use it. I always thought that there has to be a legal obligation or legal violation for something to be actionable. In my book, if something is not illegal, you should not be prosecuted for it. Persecuted is a different story.
By “actionable tort,” I mean that you would sue somebody in civil court for damages, rather than a prosecutor acting on the government’s behalf charging you with a crime.
If Leibert believes that he was defamed – that Shirley falsely accused him of misconduct – he already has the right to file a lawsuit for defamation.
What I find interesting about your “I’d rather not be in his shoes” comment is that, if we assume Shirley is telling the truth, what you’re really saying is “I’d rather be assaulted than be somebody who committed sexual assault, and then had my victim publicize what I did with my name attached.” Well okay then, but so what? Are you saying that we should pity Leibert for being called out? If what you’re saying is “I’d rather be assaulted than falsely accused,” then the real issue isn’t that Shirley ought to be gagged, it’s that you think she’s a liar.
Well said, Mythago.
Forgive my asking, and it’s fine if this is just a question you don’t know the answer to, but you’re a lawyer so I’ll ask: Do you know, if Leibert sues Shirley for defamation in an American court, who the burden of proof falls on? That is, in a defamation lawsuit, would it be up to Leibert to prove that Shirley is lying in order to win his case, or would he win by default unless Shirley can affirmatively prove that her account was true?
(Gin-and-Whiskey, what’s your take on this? Any other lawyers here?)
It varies by state, but here’s a general guide to defamation (which is the legal term for libel or slander):
http://www.nolo.com/legal-encyclopedia/article-29718.html
Note also that in a civil case, the standard of proof is “more likely than not”, rather than “beyond a reasonable doubt”. So Leibert would need to show that it is more likely than not – i.e. slightly more likely to be true than not true – that Shirley’s statement was false.
How do you prove a negative, you are about to ask? Leibert’s own statement about what happened is evidence, for one thing. If there were inconsistencies in Shirley’s account, if she told the police something very different, if others present had testimony contradicting what she said, if he has a receipt putting him in an IHOP a hundred miles away at the time, etc., that is all evidence. And “he said/she said” could indeed, to a trier of fact, prove defamation if ‘he said’ is credible but ‘she said’ is not.
Dianne, what I thought I had made it extremely clear what I was trying to do. I made a very weak claim, to disprove a very strong claim (which was clearly evident to Phil and Ampersand) All your statements are quite strong and quite unrelated to what I have stated.
But given that Ampersand asked why I brought it up in the first place, I will rehash the history of that sentence.
# 12, Piny wrote “Being raped or assaulted is at least as harmful as being accused of rape or assault, right?”. A statement that, if it is taken to be always true, would lends strength to an argument that the rights of those assaulted should be protected even at a high cost to the rights of those who are accused. Not necessarily an indefensible argument, but not one to my liking.
# 14, I wrote “I do not believe that being raped or assaulted is always as harmful as being falsely accused of rape.” to indicate that I do not accept what Piny says as an axiom. She ended the original sentence with ‘Right?’ which I took to indicate that she expected me to either agree with it, and keep my arguments compatible, or to state that I disagree.
#16 Jake Squid quotes that single sentence and writes “And, pffffft! goes any common ground for conversation.” Now, as far as I understand him, he means that, based on that single sentence, our worldviews are so different that it is a waste of his time to talk to me. I also assume that he thinks that his worldview is the superior one. I have seen this approach used many many times, including on this website, where it was at the core of at least one major discussion, and spawned at least two other threads.
#18 I took that single sentence, and attempted to construct a chain of reasoning to prove it. I was trying to understand where our ways of thinking diverge so much that Jake Squid would consider me beneath contempt based on that sentence.
#17, 19, 21, … Well, some people find no fault with the reasoning, but correctly point out that all I’ve proved is a very weak statement which carries little weight in the argument. Other people either failed to understand my reasoning, or deliberately construct and attack claims that I have never made. But that is not why I focused on that statement. I wanted, and still want to know, how, based on one very weakly worded statement that can be, and is proven by real world facts, Jake Squid decided that I cannot be reasoned with.
Sebastian, I’m not focused on questions about which-is-worse, but about your assertion here:
In other words, you believe that someone who is genuinely a victim of a sexual assault should be prohibited by law from discussing their assault in public unless until there is either a) a criminal conviction or b) a civil lawsuit against the attacker that results in a finding of liability, or a settlement with an admission of wrongdoing.
In the US this would be an enormous and, frankly, insane change in the law.
Sebastian: I may have misunderstood what you meant about saying that Shirley’s statement should be illegal. If you’re saying that Liebert should have the right to sue her for defamation then I agree with you. He should and does have that right. If he can prove his case within the limits of what a civil suit requires then he should receive restitution for the wrong done him. If he can’t, that’s his problem and Shirley’s statements stand. A civil case is easier to make than a criminal one (the level of confidence required is lower) so if she is lying he has a better chance of putting the wrong right than she does if she is telling the truth and he did assault her: he is probably safe from any criminal prosecution.
Thanks, Mythago!
Mythago, and Dianne, I think I see where we disagree.
There are two possible situations. Before we start, in this case, I personally believe that the first one is correct, and if I were on the jury, I would go with the first one. I also know that I would hate having to do so, because I only believe that I am correct through arrogant faith in my own judgment.
1. She was assaulted, i.e. he touched her without an invitation, and persisted in molesting her after she explicitly told him to stop .
2. No one saw a thing, there is no physical evidence that cannot be explained by things that happened in plain sight that night.
3. She accuses him, publicly, because she wants to protect others, and because she wants him to pay for what he did.
4. Because she wants justice, she contacts the police as soon as can be reasonably expected. The same night is unreasonable, because she was exhausted, inebriated, and understandably angry.
5. She understands that there is no evidence of any kind that her account of the incident is correct.
6. He denies all charges, and sues her for defamation.
OR, what happened was:
1. He never touched her, but she for some nebulous reason wants to harm him.
2. No one saw a thing, there is no physical evidence that cannot be explained by things that happened in plain sight that night.
3. She accuses him, publicly, because that has been her goal all along.
4. She contacts the police the next morning, because commenters have attacked her for not doing so. Her explanation is that she was exhausted, inebriated, and understandably angry.
5. She understands that there is no evidence of any kind that her account of the incident isn’t correct.
6. Innocent of all charges, he sues her for defamation.
Now, the law cannot tell the two situations apart, and so a bunch of people are gathered to decide. The bunch of people are socially inept and can’t tell which is the likelier situation. Which way should it go? This is where we differ. I think that the law should be on his side, and that she should pay for the harm she has caused him.
Why, because I expect the law to be the same for all cases, and I know that if you want to harm someone, a bit of preparation will allow to make an accusation that cannot be disproved.
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Fuck it, you know what, you are right and I am wrong. The false accusation is the crime, and if you are accused of a crime in front of the law, the accuser has to bear the burden of proof. Sucks, because I am a lot more likely to be accused falsely than to assault someone, but yeah, it’s right, and internally consistent. But hey, I still insist that she should be subject to prosecution, and that free speech is not a defense. She just has to be more likely to be right than wrong.
Oh, and I still would like to know Jake Squid found wrong with my thinking.
Sebastian, a couple quibbles with your post above (not meaning to beat on you, but trying to be accurate here).
Again, in the US, this isn’t “prosecution”. Falsely stating that somebody assaulted you is defamatory, which is a tort, meaning you can be sued in civil court. Now, deliberately making a false police report is generally a crime, so if scenario #2 were correct, the accuser could be charged with a crime – by a prosecutor, NOT by the accused – only as a result of step #4. I’m not sure what “free speech is not a defense” is supposed to be about – although truth is a defense.
Where I differ with you on scenario #1 is in your assumption in #4, which is contradicted by #5. “Because she wants justice, she contacts the police as soon as can be reasonably expected” – that’s a big one. She might realize that, as you note in #5, there is no physical evidence and no immediate witness to the act, so the police will take a report but do nothing. She might decide not to call the police because that will disrupt the convention, or because she’s afraid of further assault. She might decide that the meat grinder of pressing charges (particularly internationally) is not worth it, and the best way to handle the asshole is to go by step #3, community condemnation.
Because here’s the thing in scenario #1 – if he sues her for defamation, he’s doing so knowing that it’s not actually defamation because it’s true. That makes it a bit harder for him to prove it’s false, unlike in scenario #2, where both of them know nothing happened and that he’s right about it being defamation.
So yes, it would suck to be falsely accused. I think we all agree on that. But the remedy is not “gag accusers until there is a verdict”.
Amp, one of your most important posts, and a very thoughtful (and entirely correct, IMO) take on the intersecting issues of privacy, assault, free speech, and human dignity.
Thank you.
I’m going to say something completely selfish:
I like looking at women in short skirts. I like bike shorts. I like bare midriffs and deep necklines and rising hemlines and boobs and butts and every other part of the female anatomy on display.
Anybody who calls this an invitation to sexual assault is wrong, disgusting, and also ruining my fun.
Interesting discussion.
One thing no one brought up is how technology amplified the consequences to the man accused. A couple decades ago Shirley would have gotten support and processed her experience of being violated by speaking with friends, relatives, therapists. Yes, some of these friends would have been Leibert’s friends, too . . . but the damage to his reputation would be somewhat contained, unless Shirley went to the trouble of writing a letter to the editor of the local paper and contacting Leibert’s relatives and employers. Or filing a police report.
For most of the late 20th century people in rich societies were able to segregate our social, family, and economic lives somewhat, but the internet is changing that. There’s a very fine line between a blog and a newspaper and it’s getting fuzzier every day. Also, if Shirley maintains her blog for decades to come, Leibert’s potential employers, scholastic institutions, spouses, etc. may be able to find Shirley’s accusation (true or untrue), and it could influence his life for a long time to come.
I agree with most posters here that Shirley has every right to write what she will on her blog, and that Leibert has the right to challenge defamation in court. He can even refute the accusation himself, elsewhere on the internet. But the internet could bring us closer to a pre-20th century small agrarian community ethic in which social reputation was easy to loose and hard to regain.
That is an interesting issue, but it is also worth pointing out that there aren’t always terrible social consequences for being accused of rape or sexual assault. Ask a woman who has to dissociate from her abuser: it isn’t normal that their friends will side with her, or that their social circle will divest from him. I’m not saying that accusations like this don’t carry stigma, but it’s not reliable. The accuser must also face stigma, and potential notoriety.
A couple of people have mentioned Britain. I think it’s worth pointing out that there’s a campaign right now to make libel laws in Britain less stringent.