I have no coherent response to the allegations against Woody Allen, just feelings of powerlessness and sadness. The substance of those allegations is so horrific and heartbreaking that coherence is beyond me. It’s physically nauseating to think of. So I’m left speechless.
I feel the need to react to an ancillary point that is growing popular among people who should know better:
I think Woody Allen probably did it, though, of course, I could be wrong. But it’s okay if I’m wrong. For two reasons. First, because my opinion is not attached to a juridical apparatus—because I have not been empowered by jails and electric chairs and states of exception to destroy people’s lives—it isn’t necessary for me to err heavily on the side of “we need to be really fucking sure that the accused did it.” It’s a good thing, generally, that juries are empowered to say “We think the accused is probably guilty, but we’re not sure beyond a reasonable doubt, so we will not convict.” That bar is set high for a reason; if you’re going to lock a person in a cage for a long time, you need to be really sure. But we are also empowered to say the same thing. We are also empowered to say “We think Woody Allen probably molested a seven year old.” And because we are not in a court of law, we don’t even need to say the second part. The fact that we will not convict him doesn’t even need to be implied. He is not, after all, on trial.
That’s by Aaron Bady, of The New Inquiry, in a piece very typical of his great certitude. Totally separate from this specific case, this take on how our criminal justice system works is utterly wrong, completely at odds with the actual workings of the law, and a very dangerous position for anyone on the left to hold in a carceral society with a racist and classist caste system like the one in our country. Bady is far from alone in this opinion; indeed, it’s a rapidly congealing conventional wisdom, and being expressed with the kind of aggressive condescension that is typical of how liberals argue today. The expectation on social media now is that any discussion of due process is tantamount to being an apologist for rape, and the social punishment is immediate and severe. The division between popular opinion and the courts is said to be so inherently strong that there is no need to consider the possibility that one could corrupt the other. This misunderstands the reality of our actual, flawed, racist criminal justice system.
The Ken Burns documentary The Central Park Five, while only one case, is a good example of how wrongheaded it is to trust that the purported division between public opinion and the legal system actually amounts to real protection for those within that system. The Central Park jogger case involved a rush to judgment for a sex crime, one where injustice was abetted and deepened at every turn by the utter certainty of those in the public and the media that the accused were guilty. The notion of a firewall between the public outcry about the case and its actual prosecution collapses completely in the course of the Central Park jogger story. Voices from many different perspectives within that case confirmed what should have been apparent at the time: that the public demand for justice influenced the legal case at every turn, putting pressure on politicians who put pressure on detectives and prosecutors for a swift conviction. “You can only imagine the pressure the police were under to solve the case and solve it quickly,” says one interviewee. In the beginning of the documentary, someone calls the case a proxy war. It was a proxy war carried out in the courtroom, and public perception of the defendants’ guilt undoubtedly affecting the case in myriad ways.
And while the specific notoriety of this case create a particular type of pressure, this basic dynamic plays out in the American legal system writ large. The notion of a clear line between politics and the criminal justice system is not supportable once you are minimally exposed to the actual reality of how that system works. Talk to almost anyone involved in criminal law, particularly in major cities. Talk to a public defender in a big city. Talk to a legal reporter. Read books about the rise of the Giuliani era in New York. Panic about crime creates the political and social conditions that cause aggressive policing and prosecution, which given the reality of this country’s caste system, inevitably hurts poor people of color more than others. Cycles of rising prison populations and tolerance for aggressive policing are directly and unambiguously the product of public perceptions of crime. The legal system is an inherently political entity. The idea of a clear division between public opinion and the judicial process cannot withstand even minimal scrutiny.
Those who typically think of themselves as critics of the carceral state, like Bady likely does, have often contributed to this kind of cycle. The Giuliani era, and all that followed it, could never have occurred, were in not for the explicit or implicit support of Manhattan liberals who would maintain their undying progressivism despite that support. Those people are thus implicated in the continuing offense that is Stop and Frisk and similar aggressive, discriminatory policing. American liberals are tenuous supporters of opposition to the carceral state in the best of times. That’s where the “a liberal who got mugged” stereotype comes from. In an American political context where conservatives are permanently and unashamedly committed to an ultra-aggressive, “law and order” vision of criminal justice, whatever the reality of racial inequality within the system, those on the ostensible left have an obligation to maintain a critical understanding of the difference between our courts in theory and our courts in reality.
You might say that the case of the Central Park Five, involving those with no social or economic capital, has nothing to do with the case of Woody Allen, who has lots of both. I agree. I’m not making any statement at all about Allen’s innocence or guilt. But I am telling liberals and leftists not to adopt a position of convenience that is so wrongheaded and so potentially destructive. Even if it leads them to their preferred rhetorical stance of untroubled righteousness. After all: the consequences for a societal failure to understand how the law works in flawed, real-world practice will not fall on those like Allen or R. Kelly, who enjoy the money and fame to avoid prosecution. It will fall mostly on those who are powerless in our system. If Bady is actually interested in thinking this pose through, he might do well to think of them.
Update: As is his habit, Bady has tweeted the humor he finds in this subject to his friends rather than actually engaging. For me, personally, I think this stuff matters; I think the carceral state, and how we understand its destructive potential even as we need it to fight sexual violence, is important. Some of us really care about this stuff, and some of us want to treat politics as a kind of lefty book club. So it goes.
While I understand and appreciate the point of view, I’m not sure what your bottom line is. Are you saying that we should, in our personal lives, hold all accusations of wrongdoing up to the same standard as a criminal case (i.e. beyond reasonable doubt). This seems sort of impossible, in a very literal sense. If you’re saying I’m morally obligated to believe that Allen is not guilty of the charges, doesn’t that also require me to believe that Dylan Farrow is guilty of lying about this? So in order to maintain a presumption of innocence of one wrongdoing, I need to assume the wrongdoing of someone else. On what grounds do I decide who to err in favor of? Whoever is being accused of the worse thing?
I can’t tell if you think we should actually believe that accused people are innocent, or if you just think we have a responsibility to not express our internal beliefs pending final adjudication by the justice system.
As I said, repeatedly, I am not making any statement at all about Woody Allen, and certainly not about what you are or are not obligated to think about him. I am saying that the descriptive claim being offered by Aaron Bady and many others, that there’s no need for a presumption of innocence in public conversation because there’s a division between that public conversation and our court system, is wrong and potentially destructive. I think mistaking the ideal of such a division for the actual reality of America’s criminal justice system is a very odd thing for a lot of lefties to do. There’s a claim that’s been made, I think it’s clearly and unambiguously wrong, and that the consequences of it being wrong are dangerous. So I said so.
Would it be fair to summarize your position as “we should adopt the standard of the court system in our public conversation about people’s guilt or innocence with respect to a possible crime, regardless of what we internally believe”? Does this only apply to heinous crimes? Like, do you think its problematic to say “I think Christie ordered his aides to shut that bridge down”? While that’s a political issue, it has possible criminal consequences for Christie if true.
I think it’s my position that explicitly formulating a theory of the criminal justice system that legitimates that system through underestimating its potentail for corruption is stupid for anyone and especially for self-described radicals.
I’ll do you one better. A famous intellectual said several decades ago, “it is the responsibility of intellectuals to speak the truth and to expose lies.” Beyond the consequences for the criminal justice system, it’s an abdication of a fundamental responsibility for a writer with a following to be cavalier about consequential matters. So yes, I think that you or Bady or anyone else with a following has an obligation to have a fairly deep understanding of the particulars of a specific criminal justice case before speaking about it, on fairly basic ethical principles that go beyond the consequences that you identify in the criminal justice system.
@ DamnYankees:
Chris Christie is a governor whose decisions affect millions of people. The situation with the bridge is not related to his private life, but directly related to the way he exercised his power in office. More, the position of governor is a privilege. It is a public trust. It is not an entitlement.
You write:
“If you’re saying I’m morally obligated to believe that Allen is not guilty of the charges, doesn’t that also require me to believe that Dylan Farrow is guilty of lying about this?”
Your question presupposes Bady’s wretched zero-sum-game. Sorry to be irritable, but the fact that you propagate Bady’s obvious error (an error that has likely gone viral) is another reason why his article is so abysmally irresponsible.
That is ‘not’ how belief in the truthfulness of someone operates. Every trial operates ‘both’ on the assumption that the defendant is “innocent until proven guilty” and that the accuser is not “disbelieved”. Obviously, it is impossible to ask ordinary people to suspend their judgment in the same way as in a trial. However, I am using the trial as a “thought-experiment” to prove that it’s possible. People do it all the time. The “burden of proof” is a standard of civil discourse generally and journalism specifically . . .
Bady is even worse, though. He doesn’t just invert the “burden of proof”. He attempts to bully his readers into doing the same – or risk being labeled “rape cultured”. That is a liberal version of McCarthyism. Or, to be more modern, the Bush Doctrine. It is a “preemptive war” waged upon people (with a coalition of the Tweeting). Like Bush, Bady assumes that this kind of unilateral action really doesn’t set a bad precedent. It does! And, it “trickles down” (as supply side economics failed to do) to the most vulnerable sectors of society.
Perhaps worth nothing that the statute of limitations has expired on these alleged crimes.
This is a courageous article. It is never pleasant to get into an exchange like this. It is worse to be, by virtue of one’s principled disagreement, accused of being “rape cultured”. However, there is a larger issue here – which is that the left wing is consolidating its position as moral authority of the middle class – while creating a climate in which the prison state can flourish unchecked. Someone who can casually ask for the burden of proof to be shifted from the accuser to the accused – cannot be a person who has ever feared the police . . . They can have no idea what it means to be regarded as ‘guilty’ until you are presumed ‘innocent’.
Again, I applaud the efforts of the author of this Blog. This tendency of the left to jump into the lap of the police authorities is one of the most insidious developments I have seen in years. It is absolutely appalling that those one looks to to stand up for one’s civil liberties – are the ones who seem to regard them as disposable. Perhaps they are – for those who are, by and large, not part of a race or class who needs these protections the most. For those who have to suffer the grim reality of being already presumed guilty, this is just abysmal.
This is an interesting post. What is your actual claim? Here are two possibilities I see.
(1) You are claiming that there is bleed-through from informal public sentiment into the formal justice system; that this bleed-through means that there is a cost to public sentiment being wrong; and that Bady’s post implies that this cost is zero.
(2) In addition to the above, you are further claiming that the cost is high enough that liberals who want to preserve the formal justice system’s assumption of innocence should not express informal public opinions pertaining to guilt.
I am with you through most of (1), though having read Bady’s post I am not sure he actually thinks the cost is zero — just low enough to be worth paying. I think (2) is both unwarranted and unrealistic.
I don’t intend to imply 2); I do think we should be thinking about such things. Bady’s post expresses a theory of the criminal justice that denies the possibility of 1), and I think that’s wrong, and wrong in an important way. I also think he doesn’t bother to explore how that could go wrong because his general interest is in winning praise from the like-minded, and there is little gain to be had in questioning the relationship between fighting sexual violence and the destructive potential of the carceral state, at least within his social cohort.
I assumed that long quote in italics was Freddie being sarcastic…until I read on!
I’ve heard that line about “we are not in a court of law” before. I think it’s a dodge to help justify saying what you want & purging your assumptions of skepticism. BoingBoing.net used it to explain to me why they delete comments that don’t 100% accept claims of crimes against women.
People will always be guided by preconceptions, and we can’t become sober authorities on every alleged crime in the news — but in that case, writers like Bady may wish to consider this: bloggers don’t *have* to write a post on Woody Allen at all.
Well said. Thoughtful lawyers know how capricious–and in too many cases corrupt–our criminal justice system is. Those of us who don’t make certitude and righteousness our calling cards are frequently horrified by its cruel workings.
Ha! “Winning praise from the like-minded” sounds about right. Bady is the biggest pc bully I’ve ever read. Meanwhile, back here in the not-so-moral universe, Joann Wypijewski writes timelines that no one reads: http://www.thenation.com/article/178550/woody-and-mia-modern-family-timeline#
Last month’s news, I know, I know.