DANIEL VAUGHAN: Collectivist guilt and the erosion of due process

September 28, 2018

The hearings over Judge Brett Kavanaugh have revealed a prominent divide in our culture over the #MeToo movement in how we process and handle the difference between collective guilt over the large number of women and men who have been tragically affected by sexual assault and those who are individually guilty of perpetrating sexual assault themselves.

The collectivist guilt comes from our culture realizing how it has marginalized women who have experienced sexual assault and harassment, and silenced them from speaking out. Whether it was fear of speaking out due to retribution, not wanting to be in the public spotlight, or some other reason, each #MeToo story reveals some form of cultural repression.

In part, this is an outgrowth of the 1960s sexual revolution that tried to destroy traditional family and cultural norms. That revolution is trying to save itself. But it’s also a sign of a flawed cultural pattern that desperately needed correction.

As such, it makes sense that as a society, we’re working toward listening to victims and taking them more seriously than we have in the past. This shift is unquestionably a good thing, since, statistically, rape and other forms of sexual assault are woefully underreported to authorities.

#MeToo has also created a cultural refuge for women to acknowledge and talk about the fact that they’re not the only ones who have been impacted by sexual assault. And as this cultural moment lasts, we’re going to continue to able to see how best to change our culture to prevent attacks like these from happening.

But that trend goes too far when it is used to convict vast swaths of people of committing sexual assault with no specific evidence to support the allegations. In other words, the collective guilt we have over abused women is now extending itself into the accusation — and persecution — of potentially innocent individuals.

It’s a delicate balance because, on one hand, we want people to continue coming forward and shining a light on the dark recesses of our culture. But we also don’t want to go so far that we begin overriding the cultural, philosophical, moral, and even legal principles of due process.

The best way to frame this is to look at the beginning of the #MeToo movement and the infamous story that broke on Harvey Weinstein. That story was published nearly a year ago on Oct. 11, 2017, and it unleashed a tsunami in its wake across the country.

But the reason Weinstein is facing real criminal charges isn’t that we have collectivist guilt over the treatment of women at large; it’s because Weinstein committed distinct crimes against individual women. We can trace testimony and evidence to Weinstein to prove that he raped and assaulted numerous women over several decades.

Or take Bill Cosby, who was sent to prison earlier this week. He is facing jail time because he committed specific actions against individual women. His actions constituted rape and assault, which is why he was convicted. There was evidence, there were victims, and there was a process to examine all of those things together.

These men committed actions, of which there was ample evidence, and they now face punishment for their actions.

Compare that to some of the coverage in the Brett Kavanaugh hearings. In The Atlantic, Caitlin Flanagan wrote a horrifying essay on how she was date raped in high school. But, referring to Christine Blasey Ford, the title of that piece is: “I Believe Her – When I was in high school, I faced my own Brett Kavanaugh.

In writing this, Flanagan is taking a personal story and overlaying similar guilt on Kavanaugh. In Flanagan’s account, the perpetrator admits what he does and profusely apologizes to her later on. But Kavanaugh denies he ever did anything, and there’s no corroborating witness for Ford’s story. Everyone Ford named has either denied or said they had no knowledge of the party she described.

Emily Yellin took this a step further in The New York Times, saying that Ford spoke for every woman who ever experienced an assault. And the examples go on across the media.

But what these writers are saying is that Kavanaugh is guilty not because of specific evidence, but instead because of collective guilt we have in the culture over our treatment of women. It’s like saying Harvey Weinstein is guilty not because of his actions, but because of our cultural movement at large.

The collective does not prove the individual people or events. But a series of unique events can prove a collective issue.

By saying the collective does have this power, we are shifting the foundations of our moral and legal standard from innocent until proven guilty to guilty until proven innocent.

Not only is that not justice, but it’s mob rule.

We’ve seen this at play in the past, like during the Reign of Terror during the French Revolution, when as many as 40,000 people may have died without trial or cause. People whipped themselves up in a fury and started killing innocents.

In the present moment, we aren’t taking people’s lives, but the cultural moment is trying to take reputations, careers, and normal lives. Kavanaugh testified that his name had been “totally and permanently destroyed.” And on that point, he’s right — even though no one can point to any witness or evidence he committed any form of sexual assault.

#MeToo is a critical cultural moment. It’s revealing the truth in places where it’s evident that light was needed. But if left unchecked, it will not only destroy itself, it will ruin those it claims to protect, along with innocent people and their families.

That’s why we should stick to the principles of due process laid out in the legal system and moral foundation. It protects us all from the excesses of populist waves.


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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.