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Sunday, May 17, 2020

ANALYSIS/OPINION:

The #MeToo movement, like the flash mobs greeting the Trump administration’s announcement of immigration restrictions, are examples of an “epidemic of ideas” — a swift-moving notion of a problem started by an influential few. But if self-pity and victimhood have been destructive for the larger society, so #MeToo is likely to be equally destructive of the civilized polity on which women must depend for any sort of real security.

Its latest subject is former Vice President Joe Biden, called upon, as soon as he became the presumptive Democratic presidential candidate, to refute allegations of a sexual assault that assertedly took place years previously. These allegations have been played up by the political right, perhaps by way of demonstrating that this game is one that any number can play. 


But giving such long-delayed claims credence is wrong, no matter who makes them or against whom they are made. The 1962 Model Penal Code of the American Law Institute required even claims of rape, then defined as requiring physical violence, to be made within three months on the premise that rape was an allegation easily made and with difficulty refuted. While that requirement now seems extreme, severe statutes of limitations usually apply to non-physical assaults, libel, slander and the like, for good reason. 

Sexual activities almost invariably take place in private, and disputes concerning them thus partake of a “he said, she said” character. For this reason, prosecutions even for forcible rape were traditionally subject to Lord Hale’s rule, still applicable in the federal courts, requiring that juries be told that such accusations are “easily made, and with difficulty refuted.”

Why is there this sudden upsurge in today’s United States in allegations of sexual misconduct and in their respectability? The reasons are two:

First, there has been a depreciation in male behavior, a reflection of the greater sexual availability of women since the advent of the pill and of free abortion. The odds that unsolicited sexual advances will be rebuffed have dropped greatly. As the late legal scholar John Hart Ely observed in one of the first and best-judged comments on Roe v. Wade, one of the principal effects of that decision was that it gave men a hunting license.

Second, there has been a dilution of the legal standards defining both criminal and civil sexual assaults. Most states historically have short one- or two-year statutes of limitations relating to purely verbal acts, in recognition of limited harm and the fallibility of memory. Even as to forcible rape, prompt complaint was required, as was corroboration of the complaining witness. For sexual harassment to be actionable in an employment setting, the 1964 Civil Rights Act also required complaint within 90 days.

The careful decision of Judge Susan Webber Wright initially dismissing Paula Jones’ suit against President Clinton adopted an appropriately restrained definition: Either “tangible job detriment” or “frequent severity or physically threatening assault sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” It was only after the Eighth Circuit adopted a looser definition in another case that the Jones case was settled.

Judge Wright was correct, as to both civil and criminal cases. There are limits to what law can do without inquisitions into private behavior surpassing those of the worst totalitarian states. As Edmund Burke cautioned, in free societies, “public affections, combined with manners, are required sometimes as supplements, sometimes as correctives, always as aids to law.”

#MeToo does not bring to light long-concealed wrongs to women. Rather, it reflects the coarsening of manners of both sexes. To say this is not “blaming the victim” but telling the truth. To introduce this coarsening into public discourse has great dangers. 

The most prescient prophet of totalitarianism, Jacob Burckhardt, wrote in 1881: “Among us the irresponsible malice of a few miserable guttersnipes disgusts decent people, the ones who are ready to make sacrifices in office, or secretly leads them not to take office, so that they limit their activity to charity and that kind of thing. O there is a lot to say on that score. 

“People no longer believe in principles but will, periodically, probably, in saviours. For this reason authority will again raise its head in the pleasant twentieth century, and a terrible head.”

The guarantees of our Constitution, are not guarantees of free love, sexual freedom or, with narrow exceptions, substantive rights. They are guarantees of fair procedure. The admonition of our unofficial national anthem applies to women as well as men: “Confirm thy soul in self-control, thy liberty in law.”

• George Liebmann is a lawyer in Baltimore.


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