Home » #MeToo and Good Character Evidence: The Possibility of #MeToo-Informed Leniency Letters

#MeToo and Good Character Evidence: The Possibility of #MeToo-Informed Leniency Letters

by Eric Bennett
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#MeToo and Good Character Proof: The Risk of #MeToo-Knowledgeable Leniency Letters

In scripting this follow-up column about the potential for #MeToo knowledgeable leniency letters, I must grapple with Professor Joe Margulies’s associated column urging a extra forgiving society. He writes, “a forgiving society won’t choose an individual till it struggles to grasp each the act and the actor in all their complexity” and on the similar time to guage in a forgiving spirit “calls for that the flawed be neither minimized nor exaggerated, neither sensationalized nor diminished.” I fear that in a authorized setting, leniency letters written to assist the choose perceive sexual assaulters in all their complexity too simply fall into “himpathy.” In different phrases, they encourage the choose to overidentify and overempathize with the defendant, notably if the defendant is white and in any other case privileged, on the expense of the choose sufficiently figuring out or empathizing with the sufferer. I counsel that disentangling what’s considered as applicable context to assist perceive the fullness of the defendant from tropes rooted in structural misogyny is likely to be tougher than Professor Margulies’s column acknowledges.

However earlier than I bounce in, I need to establish some areas of settlement. As Professor Margulies notes, enough respect for a jury’s verdict and for the flawed dedicated in opposition to the sufferer and the state doesn’t require casting the defendant out from society. If the state is able to and is in reality offering enough punishment, then I agree that shunning shouldn’t be wanted and dangers important further harms. As an example, whereas I discovered David Cross’s defense of alleged harasser Jeffrey Tambor typically fell prey to himpathy, I agreed with this point, “Jeffrey’s not the one man I do know accused of shitty, dangerous hurtful habits. I don’t condone it, but it surely’s not like, ‘Hey I’m by no means going to speak to you once more and I’m solely gonna speak shit about you.’ If I had a member of the family who did one thing dangerous, I’d go go to them in jail. . . .’” However opposing shunning doesn’t reply the query of whether or not and the way a good friend or member of the family should ask for leniency from the choose. (And naturally, it additionally doesn’t reply the query of whether or not the state is prepared and capable of present enough punishment—one thing many, together with me, have questioned within the sexual assault context).

I additionally suspect that Professor Margulies’s column accommodates an implicit assumption (maybe explored extra in his e-book venture) that the American carceral system is simply too punitive and imposes too many corollary harms. Amongst these harms which our society should take way more critically is the numerous threat of further sexual assaults for these imprisoned. But one can have deep skepticism concerning the present carceral state and concurrently imagine that juries and judges are too reluctant to imagine and respect survivors. Defective harmless verdicts and inappropriately gentle sentences (notably as in comparison with an in any other case default of applicable or too heavy sentences) impose an extra hurt on sexual assault survivors. Such verdicts conveying the hurt and the price of sexual assault survivors as lower than other forms of victims or than that of the defendant. (For a major instance, see Decide Persky’s justification for Brock Turner’s sentence mentioned in my final column.) Furthermore, leniency letters are usually not the place to make generic objections to the horrors of the American jail system. Booker calls for an individualized accounting for the offender’s traits and explaining the pervasive faults of American incarceration doesn’t converse to that finish.

Regardless of a wholesome quantity of frequent floor, I disagree with Professor Margulies’s universalizing assertion “I’ve by no means met anybody who says I’ve it backwards and that society must be extra unforgiving. Nobody says that empathy and compassion are overrated and that we should always harden our hearts much more than we have already got. Nobody says we should always make even much less effort to grasp those that transgress. Not less than, nobody whose worldview we admire and emulate.” However maybe he has not encountered Professor Kate Manne, whom I like very a lot. She conceptualized “himpathy” which is the overempathizing with male wrongdoers on the expense of feminine victims. Professor Manne’s work suggests himpathy leads to each a reluctance to imagine feminine victims of sexual assault and a reluctance to punish sure sorts of males even when juries discover them responsible. She explains that in a world with social inequality, “The[] naïve deployment [of empathy and understanding] will are inclined to additional privilege these already unjustly privileged over others. And this may occasionally come on the expense of unfairly impugning, blaming, shaming, additional endangering, and erasing the much less privileged amongst their victims.” Himpathy can render the defendant comprehensible not as the entire particular person whom the choose ought to contemplate, however reasonably a possible sufferer whose additional hurt we should keep away from and erase the precise sufferer of the sexual assault.

That brings us again to Ashton and Mila’s letters—may they’ve been written in such a means that they each assist a choose perceive Danny Masterson in all his complexity with out additionally minimizing or diminishing the flawed of the forcible rapes he dedicated or the impacts stated rapes had upon their survivors? Extra importantly, can future letter writers who take #MeToo and survivors of sexual assault critically accomplish that?

First, such a letter would wish to meaningfully acknowledge the flawed completed to the sufferer in addition to any further hurt completed by a sentence that fails to mirror the severity of the flawed and its impression on the sufferer. In different phrases, #MeToo-informed letters ought to not deal with the hurt to the sufferer as both non-existent or a sunk value. One acquainted trope in sexual assault instances is the notion that the sufferer has already skilled the hurt and the harm is completed whereas findings of fault or punishment inflict a brand new hurt on the accused that should be prevented. His future is extra essential than what’s seen as her previous. Empirical studies of Title IX places of work reveal this can be a frequent misunderstanding amongst these with the ability to punish sexual assaulters.

However why is such an acknowledgement essential in a leniency letter written as half of a bigger adversarial course of by which the sufferer and the state have the chance to supply proof themselves? I contend that grappling with #MeToo means recognizing that such harms have been traditionally undervalued and the significance of reinforcing these issues whilst one tries to color a fuller image of the defendant. In fact, letter writers would possibly accomplish that in a professional forma means or under no circumstances, however a part of the hurt inflicted by Ashton’s and Mila’s letter is the way in which by which individuals who publicly dedicated themselves to stopping intercourse trafficking and different #MeToo-related harms did not acknowledge survivors as victims when it concerned their good friend. I additionally assume {that a} honest letter author, dedicated to Margulies’ splendid of a forgiving society, would discover that considering and writing such an acknowledgment would each assist restore due respect to the sufferer (one thing the defendant’s crime undermined) and will assist form the remainder of the letter. In different phrases, the act of acknowledging the hurt would possibly serve to assist debias each the letter author and the letter reader—i.e., the choose.

Second, in giving the court docket a fuller image of the defendant, letter writers should tread rigorously to keep away from the “solely monsters are rapists” trope. Professor Margulies opines that letter writers “can insist [the convicted] shouldn’t be a monster, no matter what he might have completed.” Whereas I agree with that in principle, the implementation may be tough. Many individuals imagine that rapists are monsters and thus draw the inference if somebody shouldn’t be a monster, then he additionally can’t be a rapist. Beneath this logic, emphasizing the “good guyness” of the defendant is likely to be a extra refined means (acutely aware or not) of making an attempt to vindicate the defendant reasonably than reflecting his completeness. So whereas Professor Margulies notes that Mila’s and Ashton’s letters about Masterson’s anti-drug stance may need acted to undermine the decision, I counsel different points of their letters such because the emphasis on his being a great father, good husband, and good good friend to girls may need completed the identical factor. Thus, the #MeToo knowledgeable letter author should watch out to remember that, as Christina Ricci put it, “individuals we all know as ‘superior guys’ may be predators and abusers.”

Furthermore, the author ought to contemplate whether or not and the way the convicted may need deployed his good man standing to undermine the believability of the survivor. That’s not to say that proof of fine character can’t or shouldn’t be introduced, however {that a} #MeToo-informed creator have to be very cautious to first contemplate whether or not that good character that the creator is aware of is motivating a perception {that a} defendant shouldn’t be responsible and second to ensure to cabin such proof as a option to current a fuller image of the defendant as each a great particular person in some respects AND a rapist. Too many letters now convey the sentiment that when sentencing that you need to view the defendant as a great one who is a loving father, husband, and good friend reasonably than as a monster rapist. I feel a extra #MeToo-appropriate sentiment is the defendant shouldn’t be solely a rapist, he’s additionally a loving father, husband, and good friend after which clarify particularly why his varied constructive relationships with others and good character traits make him able to rehabilitation and regret as to the extra unfavourable relationships and dangerous character traits.

Maybe surprisingly, I discovered one such doable begin amongst Brock Turner’s letter writers. His good friend wrote, “This letter shouldn’t be supposed to show Brock’s innocence or to vary the picture of Brock that you’ve come to know, however reasonably to indicate you the Brock Turner that I do know and the Brock Turner that each one of [sic] individuals round him know/I’m not writing to belittle anybody concerned on this case or affected by this case, all I can do is present you the Brock that I’ve come to know and the Brock that I can proudly name my good friend.”

One other trope #MeToo-informed letter writers ought to keep away from is the notion that girls are fungible. Even when the letter author is ready to testify as to the defendant’s good relationship with girls and ladies in his life with out overtly or implicitly suggesting the decision was wrongful, the letter author should additionally keep away from the implication that the mistreatment of the feminine sufferer should be weighed in opposition to all the opposite girls that the defendant has handled properly and that the latter cancels out the previous. Or that the ache of the spouse and daughter will really feel if the defendant is punished harshly should cancel out the ache of the survivor if he’s punished too frivolously. Once more, this isn’t to say proof of such relationships can’t be launched, but it surely have to be completed with nice care to not undermine the popularity and significance of the survivor.

In conclusion, given our fraught historical past with good character proof in sexual assault instances—from its admission on the deserves in good soldier defenses to letters encouraging judges to implicitly reject the decision, letter writers who care each about presenting the wholeness of the convicted particular person and the insights of #MeToo should take nice care to keep away from the tropes surrounding American rape tradition.

Source / Picture: verdict.justia.com

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