Identity and Due Process
in the #MeToo eraby Fabia Chenivesse-Wong 1185 October 20
The election that saw Donald Trump become the President of the United States brought on an intensive period of soul searching, understandably and necessarily, for those who had opposed him. One theory that caught traction early on to explain the failure of the liberal Left to mobilize effectively set responsibility on the shoulders of “identity politics” – social movements grouping people in relation to whatever trait they may share. The general argument was that the Left had lost much of its mainstream appeal and political clout by splintering into factions defined by identity: feminist groups, LGBT groups, disability-rights groups, etc. This devolution of a consolidated Left led to policies of exclusion, resulting in cloistered thinking that people not belonging to the group could simply not relate to. The process of defining an identity, however, can be seen as a precursor to meaningful resistance. One can resist only in terms of the identity that is under attack, as Hannah Arendt has pointed out. A sense of identity can give gravity to an experience – belonging to a group by way of shared experience can anchor us, help us make sense of the chaos, like a routine can generate a sense of purpose out of the passage of a day. In the context of social justice, it can bring about solidarity from shared, lived experiences, and can infuse much-needed nuance and authenticity into the conversation. The notion of identity is potent and conceptually vague. Taken at its most fundamental, it is how we perceive and understand ourselves. It is equally about the construction of an individual – socially, culturally and politically – and can be seen as the specific space one occupies, as the result of characteristics as diverse as his race, his wealth, his sexual orientation, profession, faith, or appearance. Its specter can be seen behind a number of sociological theories – from nativism to feminism. The #MeToo movement is an example of the power of identity to generate solidarity: women in their shared experience have found the strength to break the silence about sexual misconduct and to bring about individual instances of accountability, as well as an international discussion. Nearly two years on from the election and the mobilization of the Women’s March and one year after the mainstream explosion of #MeToo, it is worth examining how identity has come into play, and how the limits of identity politics have been tested. The extraordinary events surrounding the confirmation of Brett Kavanaugh to the Supreme Court provide a rich and confounding example. It was impossible to look away as the allegations of Christine Blasey Ford first surfaced and then became the focal point of the contentious process. For anyone seeking to critique what happened, several aspects of the process were low hanging fruit, ranging from the degree of politicization of the appointment process and the candidates themselves; the haphazard, pseudo-judicial process the confirmation hearing evolved, or devolved, into; the seeming absence of any kind of meaningful procedure during the hearing; or ultimately, the fact that after the grotesque spectacle captivated the nation, senators voted as expected, along party lines, with only two exceptions. It was, though, the believability of Mr. Kavanaugh versus Dr. Blasey Ford that instigated a feeding frenzy of writing, with every expert pundit, non-expert pundit and everyone in between explicating why one or the other was clearly more credible. The hybrid “reporting”-commentary proffered by writers on either end of the political spectrum on the testimony qua closing statement of Mr. Kavanaugh was a study in contradiction, reflecting the ugly partisanship during the Senate hearing that so effectively obstructed the truth-seeking process. Even in the confines of a judicial proceeding, where impartiality is at least formally required and there are procedural safeguards in place, a sound credibility assessment is an incredibly difficult thing to achieve. It requires competent and persistent questioning by diligent and informed counsel, as well as guidance by an impartial and professional finder of fact who is ultimately vested with decision-making authority. Under the particular circumstances of the hearings, which laid waste to the idea of impartiality and procedural fairness, such an assessment was necessarily compromised. Somehow, in this incredibly high-stakes, three-ringed circus, Dr. Blasey Ford, as an individual, became invisible. She, and her very personal experience, became symbolic of a movement, larger than herself or even the Supreme Court. A theme that was gaining traction was that she, as a woman who had alleged a sexual assault, must be believed; that if you are a feminist, you must believe all women. That a woman’s word alone should be enough. Good sense necessitates a hard look at any suggestion to jettison your critical capacities. In addition to doing a disservice to Dr. Blasey Ford, this reductionist argument is one that any position based solely on identity may arrive at when it drifts into intellectual laxity. It presents not only women as a monolith, but so too persons who have experienced sexual assault. In so doing, it renders the individual occurrence unimportant when, in a criminal prosecution, details mean everything. The statistics support the notion that women very rarely fabricate stories of sexual assault. But ‘very rarely’ is not enough to convict. To choose to accept the word of any woman who recounts an experience of sexual assault can be a personal guideline. But in the context of criminal justice, the idea that “all women are to be believed” is a demand to turn the presumption of innocence on its head. This clumsily worded rallying cry is demonstrative of where identity politics can take us if we’re not careful. Power hierarchies, like any social construct, are liable to be simplified. There is no question that the justice system is far from ideal for victims of sexual assault, but simultaneously, the ghost of Emmett Till still haunts America, as do those of the countless Black men and people of color who have been convicted for crimes they did not commit. A sustained criticism of mainstream feminism is its failure to include concerns specific to racialized minorities. Due process rights, the presumption of innocence and the burden on the state to prove a criminal charge are precious to all individuals, but are particularly crucial to those who belong to marginalized communities, or who lack sufficient means to obtain able representation. These rights are independently insufficient to prevent the over-representation of people of color in North American correctional systems. Still, and without overstating, they are what stands between us and the downward slide towards totalitarianism. Once a movement starts using ends to justify means, it loses its credibility and veers into dangerous territory. As poor as Kavanaugh’s performance was during the hearing (and it was a performance) the opacity of the FBI investigation and its findings and the lack of a credible process makes one wary of martyring him for the Right. There was, not too long ago, a criminal trial in Canada that illustrates the risks of what happens when players in the justice system adopt the attitude that all accusers are to be believed without rigorous examination. The career of Jian Ghomeshi, a Canadian radio celebrity previously employed by the Canadian Broadcasting Corporation, the national broadcaster, was one of the first casualties of the #MeToo movement. Briefly, allegations that he had been violent and abusive with women in his private and professional life were made public in 2014. He was fired, and a subsequent independent investigation found that CBC management had not taken sufficient steps to address Ghomeshi’s behaviour, which created “an intimidating, humiliating, hostile or offensive work environment” in spite of being informed of some of the troubling allegations against him. Soon after the CBC scandal erupted, twenty women came forward with stories of violence, sexual abuse and harassment, including hitting, biting, choking, and verbal abuse during sex. Four women went to the police, alleging sexual assault. The trial of Mr. Ghomeshi for sexual assault and choking charges in relation to three of the women went forward, and resulted in an acquittal. The 26-page trial judgment dismissing the charges against Ghomeshi reads as a cautionary tale for those who might agree with the idea that a woman’s word is enough for a conviction of sexual assault. When a charge is premised solely on the victim’s testimony, as was the case against Ghomeshi, every mis-remembrance, overstatement and retraction, and recollection withheld leads to a diminishing of the witness’ credibility and therefore the court’s ability to rely on their good word. In this particular case, all three witnesses were found to be unreliable, due to inconsistencies in their evidence revealed during cross-examination, and the revelation that critical information about their subsequent interactions with Mr. Ghomeshi had been withheld. The decision was not without flaws. One of the facts taken into account when considering the victim’s credibility was that she had testified that she found Ghomeshi’s romantic overtures awkward or creepy, though she had written Ghomeshi a “love letter” in which she fawningly praised his efforts. Whilst on its face this appears an inconsistency, the trial judge’s consideration of this fact is the type of overly technical analysis that fails to recognize the nature of private relationships. Ask any woman whether she has bent the truth to flatter a man’s ego (or any man, for that matter) and the triviality of such an inconsistency becomes evident. One interesting aspect of the decision was the trial judge’s analysis of the motives of the victims, as revealed by of a furious exchange of thousands of messages between two of the women expressing, in vulgar terms, their animus towards Ghomeshi and shared desire to see him destroyed. While the judge did not expressly rely on this aspect of the evidence to render his decision, it raised an issue that is deeply related to the weakness of the human memory and witness testimony – our capacity to reconstruct recollections so as to suit the way we perceive ourselves, and the way we want to be perceived: our identity, in other words. This is the same thing that makes Jian Ghomeshi’s recent controversial piece in the New York Review of Books such an absorbing read. Ghomeshi utilizes this platform, his first since his very public downfall, as a means to rehabilitate his image; trying still to convince his audience that he is worthy of adulation, using the not so novel argument that in fact it was him who had been victimized. To the extent he recognizes he has a problem, he distances himself from personal accountability and places his conduct in the context of a “systemic culture of unhealthy masculinity”. Ghomeshi’s self-pity is dwarfed only by the sad limits of his empathy – he now feels passionately for anyone who has been attacked in the public sphere. The piece dedicates two paragraphs out of thirty-nine to addressing the “women in his life” whom he may have wronged (though he does not use so direct a term to describe it). The rest is dedicated, unsurprisingly, to himself. Although the title of the piece refers to reflection, the piece itself demonstrates very little, if any, of that. It is an excellent embodiment of the tendency for those who lack the courage to be honest with themselves to find shelter in reconstructing events to suit an identity that they feel comfortable with. His words were similar in tone to several other men who have been caught in the whirlwind of the #MeToo movement, for example, Dustin Hoffman, who, in the midst of an apology for inappropriate behaviour he never fully admitted to, described that conduct as “not reflective of who I am”. Even Jay-Z, while discussing his infidelities to Beyoncé (a different context, admittedly) chose similar language, saying that his wife understood that he was “not the worst of what [he]’d done.” It takes a certain lack of awareness – perhaps a natural result of living a relatively privileged existence – to attempt to define yourself outside of the context of intentional acts. The tenure of the editor-in-chief of the New York Review of Books came to a swift end after the publication of Mr. Ghomeshi’s essay. While the precise machinations that led to his departure appear complex and are beyond the scope of this piece, it is worth noting that the social utility of maintaining editorial freedom, to permit or even protect the publication of essays like Ghomeshi’s, is significant. The absence of discussion places the movement, or more importantly any chance at a true cultural shift, at risk. The #MeToo movement illustrates the power and the limitations of identity politics. While a shared identity can serve as a source of strength and unite a diverse group of people who can collectively achieve great things, identity can also render us myopic in our world-view. It can serve as a convenient crutch when one seeks not to understand but only to justify or explain. And on a larger scale, subjectivity can obscure similarities or shared concerns, leading to the dissolution of solidarity, the most powerful weapon against any system. Asian Americans potentially leading the charge against affirmative action in allegiance with a White conservative in the U.S. is a good (and sad) example of this. What’s true about identity is true about any analytical tool or ideology: that applied without intellectual rigor it can become a liability, a blind spot that can render a movement vulnerable to legitimate attack. Taking identity one step too far is an easy enough error to make – the road to sentimentality and essentialism is the path of least resistance. But the simple truth is that we cannot afford these kinds of mistakes. The moment and the movement are too important.
About the author: Fabia Chenivesse-Wong. Fabia studied and practiced law at a regional law firm in her hometown of Toronto, Canada before moving to The Hague, the Netherlands, in 2011. For six years she worked for UN tribunals, prosecuting international crime. Currently based in the south of France, she writes about gender, race, culture and the law.