The ethics of uncertainty

In a recent article entitled ‘Kevin Spacey is innocent’, Sp!ked editor Brendan O’Neill argues against the quickness of many to presume Spacey’s guilt of the alleged assault of the then 14-year-old actor Anthony Rapp:

“‘What he did’. The arrogance. The mob thinking. How do we know Spacey did this thing? Because one person said he did. If we had any kind of attachment to the ideals of reason and justice, the building blocks of civilisation, this wouldn’t be enough. It would be so far from being enough.”

This echoes some of my thoughts about how the Kevin Spacey case has been treated in the public sphere: I also fear that we are losing our belief in the presumption of innocence. And yet, follow O’Neill’s argument, and we must also follow the same logic for Harvey Weinstein: a jaw-droppingly prolific serial sexual abuser who, to this day — mostly by virtue of his wealth and power — hasn’t had to face a court of law and may well never have to. To defend his right to public presumption of innocence in the face of so many accusations would seem perverse and illogical, and would greatly reduce the power of his victims’ testimony (which, in the absence of justice, remains their only recourse).

Some will argue that the presumption of innocence is solely a matter for the courtroom, and that the general public need not adhere to it — that our onus is to weigh the facts as they are presented to us, or, as many increasingly argue, to simply believe the victim.

Following that principle makes sense on a lot of levels: we know that it’s important for victims to be believed; we also know that false accusations, mistaken memories and unfortunate misunderstandings are relatively uncommon; and we also know that a great many — indeed, perhaps the vast majority of — sexual assaults don’t result in convictions. If we want to make accurate assessments of these cases from afar, it makes a lot more mathematical sense to believe victims than to give the accused the benefit of the doubt. And it sidesteps the murky territory of calling victims’ (often courageously offered) testimony into question.

But the fact remains that a presumption of guilt has consequences beyond the courtroom, too (and also beyond the relevant problem of prejudicing juries). For the accused, it can result in ostracisation, vilification, loss of work and work opportunities, threats of public retribution and, of course, lifelong reputational damage (as even disproven allegations can have the tendency to stick, as, for instance, in the case of Lindy Chamberlain, who many to this day still believe murdered her daughter despite several inquests establishing her innocence). That is not only a hypothetical harm, but an inevitable one if the public takes on a policy of always believing claims of victimisation: innocent people will suffer, and not just a small handful; if we even look solely at false or mistaken allegations — which make up at least 2% and potentially as many as 10% of all sexual assault allegations — then it becomes inevitable that a universal paradigm of public presumption of guilt will cause serious harm to a great many people. We are choosing to cause harm.

I’ve seen a few people shrug this off as either the necessary collateral damage of progress, or simply an opportunity for men (the demographic to which most accused sexual abusers belong) to get a taste of what women (the demographic to which most victims of sexual abuse belong) have suffered for generations — that is, not being believed. These are both essentially utilitarian arguments, and I have some sympathy for the first (the second less so, as I don’t believe in making people suffer for the sins of others). But I also feel like the dichotomy being offered — absolute presumption of innocence for the accused vs believing all claims of victimhood — ignores a great deal of middle ground.

Years back, before he died and was bizarrely turned into a saint, Michael Jackson faced several claims of sexual abuse of young boys. At the time, I recall many people — fans, generally — expressing with great confidence that they knew he was innocent, while others “could just tell” that he was guilty. Both of these positions seemed absurd to me, and still do: these assertions of fact were being made by people who weren’t there, had no idea what had happened and really — beyond the superficiality of tabloid gossip and celebrity interviews — knew nothing whatsoever about either Jackson or the young men accusing him. It was, in so many cases, an act of hubris to assert knowledge under such conditions.

In cases like those of Chamberlain and Jackson, we see an aspect of human nature that doesn’t get acknowledged as much in contemporary debates: the human desire to believe in one’s own intuition, and to guess correctly in the absence of facts. More often than not, this is an expression of prejudice that goes back to “just knowing” that the lonely widow down the road is a witch. This is the dark side of a policy of always believing the victim; it also unleashes our inner desire to judge and find guilty. That’s a dark impulse, and one that the legal system has long defended us from.

In many such cases, there’s the question of why, exactly, we need to know. How does it change anything for us to know that Woody Allen is guilty or innocent, beyond our knowledge that Dylan Farrow has made a claim against him, that such crimes occur often, and that he could be — but also may not be — guilty? Is it the question of whether we get to see him as a ‘good’ or ‘bad’ person? What gives us the position to make such claims, and why — as people who will likely never meet him and know little about his life — is it necessary for us to do so? Even if he is guilty, we have no idea whether he poses a risk to anyone else, any more than anyone who has never committed such a crime. Surely the question of his guilt or innocence is a matter for the police and the justice system.

In the area of sexual assault, though, it is true that the justice system has often failed victims. Likewise, our culture of silence and sexual shame has failed victims; our systems of power imbalance, both gendered and capitalistic, have failed victims. All of those problems can and must be rectified; I believe we can work towards fixing them, listen to victims’ testimony with respect and empathy and still accept a (humbling) awareness of our lack of objective knowledge, while retaining faith in the legal system to prove guilt (and to campaign for better legal processes for assessing these crimes, as required).

Perhaps it is too much for us to presume Kevin Spacey’s innocence. It shouldn’t, though, be too much for us to accept that we just don’t know. Sometimes, it is necessary to be uncertain.