Naming Names Isn’t Enough — Sexual Harassers Should Have to Face the Law (Column)

Everywhere I look, colleagues are in a crisis.

Week after week, reports of sexual misconduct flood the headlines; another day brings another fallen figure, another set of victims, another depressingly familiar pattern of abuse and cover-up. It’s hard to imagine that anyone who follows the news hasn’t been deeply disappointed by at least one of these revelations; academics, athletes, journalists, politicians and comedians have all been drawn into Hollywood’s moment of reckoning. In media it feels especially exhausting: The blight is so widespread that cogent articles about the offending men are running in publications that are dealing with their own internal crises about sexual harassment — spawning more articles, at other institutions, that trigger more scrutiny and more accusations.

So many of us — the Hollywood-adjacent — are struggling to square the art we love, and the artists we admired, with the violence done at their hands. Are we all monsters? Do we have to pack up and exile ourselves from this industry because we once thought “Manhattan” was a good movie? Can we trust corporations, and ourselves, to navigate the incredibly sensitive and complex territory of systemic sexual intimidation, an injustice older than Eden?

These are important questions to ask. But we shouldn’t have to be asking them of ourselves. This has been a crisis — a crisis of morals, of ethics, of language. It’s also been a crisis of faith in the American justice system. It’s difficult to imagine a prior point in American history where so many crimes have been discussed openly and publicly, and yet actual criminal charges are so scant on the ground.

In the most egregious example, the Manhattan district attorney — the recently reelected Cyrus Vance Jr. — declined to prosecute Harvey Weinstein, even though, as The New Yorker’s Jeannie Suk Gersen explained, “a run-of-the-mill misdemeanor case of nonconsensual sexual touching is routinely prosecuted on far less than a recording in which the accused admits to the conduct.”

David Dayen, a journalist who typically covers financial fraud, went so far as to argue in The New Republic that our “broken justice system” led to the current sexual harassment crisis. “The burst of allegations since the Weinstein scandal broke — which bears parallels to the failure of similar allegations to stop Donald Trump from becoming president — springs from frustrations with the justice system. The crowd isn’t good at enforcing the law because it’s not their job. But what are people supposed to do when they have no other choice?”

Speaking to Variety, Dayen elaborates: “This is a legal matter. Or at least, it should be. You can’t have true accountability without accessing the legal system. Sure, people can lose their jobs and their careers and livelihoods. But there’s no mechanism for sentencing in the public square. It’s not like ‘Louis C.K.: Five years, you don’t get to do a movie, and then you can come back.’ That doesn’t exist.”

It was simpler when the accusations were clearer-cut: Heinous crimes, controversial figures and rumored indiscretions made it easier to wash our hands of the ur-predators of this moment. But this was never strictly a story of a few bad men; it was about a blight that infects most of the working world, in varying degrees. It’s been staggering, and cleansing, to air out the dirty secrets of the patriarchy — to confront the stark reality of misogyny and to finally hear from long-silenced victims. But the role of media, I think, is ending. The role of the courts has to begin.

The problem is that not all accusations are alike, and yet the machinery of a media reckoning with widespread sexual violence cannot but frame it that way. Some people who are making headlines have been accused of rape. Others have been accused of unwanted touching. Other accusations are verbal in nature — inappropriate language or lewd “jokes.” And yet what tends to float to the surface, in trying to keep up with the headlines, is not the burden of proof undertaken by the institution publishing the accusation or even the type of harm described in the accusation. Instead it’s simply the names of the accused.

This is a legal matter. Or at least, it should be. You can’t have true accountability without accessing the legal system.”
David Dayen, Journalist

Naming and shaming the guilty is a crowd’s way of circumventing the court system, and it is empowering, at first. But it will become a liability — indeed, it has already. The bigger the list gets, and the less carefully it is curated, the less potent it becomes.

Witness what happened to the short-lived but endlessly covered Shitty Media Men list, which attempted to keep track of stories anonymous women had about men on the media scene. It first blew up, as more and more women heard about it, and then disappeared right before BuzzFeed wrote an exposé outing the spreadsheet. (Complicating matters further, several employees at BuzzFeed were on the list.)

Then witness what happened just two weeks ago, when “Girls” writer Murray Miller was accused of rape. Lena Dunham — a champion of feminism so bona fide that she was one of the first Hollywood types to address the scandal in the pages of The New York Times — categorically denied that such an accusation could even be possible, citing the saddest of all reasons: She trusted Miller, so of course, he must be a good guy. (She has since retracted the statement.)

That all of us, even and especially women, are more invested in the possible innocence of some men, over the probable victimization of most women, is frustratingly indicative of how deeply ingrained the biases of patriarchy are. But at the same time, it is hard to blame anyone for hoping that their men are innocent — their brothers, lovers, fathers, friends — not the monsters of the headlines but the mensches next door.

We’re not built for this. We are a crowd, not a system of processes; we are creatives and journalists and corporate executives, not ethicists and judges. It is important, in media, to hear the voices of the disenfranchised and marginalized. It is also important, legally, that anyone accused be considered innocent until proven guilty. It’s both incredibly hopeful and incredibly worrying that companies are cutting ties with men like Charlie Rose, Louis C.K., Harvey Weinstein, Kevin Spacey and Jeffrey Tambor simply because of accusations reported in the media. The power of this moment is stunning. But corporate ethics have no principle except market value, and we are going to need more than that if we are to protect future generations of women.

The problem is that for too long, Hollywood’s elite have held themselves above the rules. We used to have circus-like celebrity trials; now we don’t even see those, because of how much happens behind closed doors. Which is ironic, because much of Hollywood storytelling is about the justice system — courtroom dramas and buddy-cop comedies, prison life and the drug trade. We know exactly how the world works.

“Hollywood has been able to talk about this in terms of the entertainment that it has provided,” Dayen points out. “But it hasn’t been able to talk about it in terms of members of its own ranks.”

Hollywood has been an example for other industries before. It can seize the mantle again, by demanding more from our legal system. We can expect our district attorneys to prosecute crimes, even those of rich and powerful men. We can expect our law enforcement system to believe victims. We have taken on a burden that we’re not equipped for, because the legal system isn’t doing its job — and hundreds if not thousands of women in the industry have paid the price as a result. At this crossroads, we have to decide how to hold ourselves accountable.

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