Tuesday, December 9, 2014

Moral Witness -- or Moral Panic?

As Kevin Drum has pointed out, the news seems especially full these last few weeks of accounts of alleged criminal wrongdoing -- accounts specifically that share in common the quality of drawing attention to social injustices far greater than the individual cases. Yet in many (though not all) of these cases, the facts of the individual incident turn out to be morally complex in a way that was not immediately indicated by the news coverage. Drum confesses to a feeling of divided conscience as a result. I entirely sympathize with him, and am in near-total agreement with the conclusions he draws in his post. I am not particularly interested in the question of whether the facts of each case should be subordinated to a larger social message-- because plainly, the answer to this is "no," from a conscientious rather than consequentialist standpoint. But I am interested in how, if at all, one should respond in a public and permanent medium (like a blog) to criminal cases in which one does not have all the facts. There are cases, that is, in which silence must strike us as cowardice, when it might even seem a tacit endorsement of terrible actions, and this is partly what troubles Drum. But there is plainly cowardice too in rushing to judgment along with the crowd before all the facts are known. "Thou shalt not follow a multitude to do evil" (Ex 23:2) is a command that should be emblazoned on the masthead of every social networking site.

I find it helpful to remind myself in these circumstances of what I know absolutely to be true. I know first of all that to discount a priori as false the claims of abuse survivors is to commit a savage injustice against them. One of the most ancient of human nightmares, embedded in our folklore and literature, is the story of the injustice no one will believe possible, because the person responsible for it is too powerful or charming -- the wicked chambermaid in the "Goose Girl" of the Brothers Grimm; the dark half of the doppelgänger. In Gabriel Garcia Marquez' One Hundred Years of Solitude, José Arcadio witnesses a massacre of workers by the "banana company" and spends the rest of his life trying to convince others of the truth of what he has seen -- but no one will believe him.

Yet I know likewise, that to assume the guilt of someone on insufficient evidence would be no less unforgivable.

So too, I know that all throughout history there have been accounts of evils that people thought too "outlandish," too lurid, to be true,  but which ended up being entirely and horribly vindicated by the evidence.

Yet -- I know likewise that all throughout history, people have been all too willing to believe what appear in retrospect to be patently ludicrous charges against groups or individuals they were already inclined to distrust or despise-- the "blood libel" against Jewish people in the Middle Ages that led to pogroms, the stories of "witches" killing children or molesting them that led to trials, wild accusations against black men that inspired lynchings-- so often these things that we now recognize as the great crimes of history, were in their own time conceived of as responses to crimes. Oscar Wilde wrote, and the judgment still stands: "As one reads history [...] one is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted."

All of these things are true at once. The matter cannot be settled, therefore, by citing one of them in the absence of the others, as many have sought to do in recent debates. Yet these truths come into conflict with one another when they are sought as a guide to action.

My own solution to the impasse, like Drum's, has largely been silence. Silence too, however, will plainly not suffice in all situations. We never have perfect knowledge of anything, not even our own minds; and yet the world in the meantime is full of unjust suffering. We can't wait until "all the facts are in" before acting or commenting. I broke my silence about the death of Eric Garner this weekend, for instance, because there the evidence seems especially clear and overwhelming.  So, I should note, did Drum break his silence, and his example in this partly inspired me to do so. Even in Garner's case, however, I maintain protesters should not be pressing for the indictment of a single individual (Officer Pantaleo), but for a fundamental change in the system that enabled his actions.

It can seem hopeless. We never will be absolutely certain in any case, whether what we are doing is bearing moral witness to a genuine evil or stoking a moral panic against the innocent.

It seems to me, however, that there are certain general rules we can take from the light of experience and apply in the future. There are warning signs of a moral panic that should put us on doubled alert. In that spirit, I suggest we ask ourselves each time one of these media cases arises the following five questions. I pledge to ask them of myself, for one, before I commit anything to paper in a future incident. None of these questions, taken separately or together, can decisively resolve the matter. They cannot ever tell us with certainty whether a story is true or false. But I think they can help us make better decisions, if treated seriously, and asked in earnest.

The questions:

1) Do I want to believe this story is true, on some level? If so, why?

2) Why do I think this story "makes sense," intuitively? Does it have to do with the character of the events described, in themselves; or does it have to do with the type of person/people that it implicates, and what I already expect to be true of them? (This question-- and this post as a whole, really-- is inspired by this blog post from the former editor of George magazine, which reminds us, among other things, that "One must be most critical, in the best sense of that word, about what one is already inclined to believe.")

3) Does this story have a particularly sensational or titillating quality? If so, to what extent, if at all, is this fact informing my willingness to credit it?

4) Is part of my reason for believing this story due to the fact that I want to separate myself from the events it describes? Am I motivated perhaps to show how unlike the alleged perpetrators I am?

5) If a lot of people believe this story to be true, will it only have the result of leading to salutary reforms in large-scale policies, which would be morally justified anyways in themselves? Or will it instead have the consequence of ruining the careers, reputations, or even the whole lives of particular individuals? If the latter, I had better be damned sure, at the very least, that the accusations are true.


The cases of innocent people who were judged guilty by the weight of public sentiment, only to be vindicated later by fresh evidence, are legion, and they cross all racial, ideological, and sectarian lines. The ones that have been and will be cited again in recent times are those of the Central Park Jogger case and the false accusations made by Tawana Brawley. I'm also reminded of the incident from a few years back of a Rutgers student who infringed the privacy of his roommate in a way that was immature and cruel, but whose actions were inflated by media hype into allegations of homophobic "intimidation" and stalking, following the roommate's (most likely unrelated) suicide. I'm reminded too of a man exonerated by attorney Bryan Stevenson after spending six years on death row for a crime he didn't commit, who had been assumed to be guilty because of his race. The case took place in Monroeville, Alabama, which is a chilling detail, for this (as David Cole reminds us) is the real-life inspiration for the setting of To Kill a Mockingbird, another story -- fictional in that instance -- of an innocent person falsely arraigned on the basis of prejudice.

I think too of the stories of sexual abuse by "Satanists" in the 1980s. There was a case that should have set alarm bells ringing on every question above. It was a story that "made sense" to people, because those it accused were already thought of as countercultural and transgressive. "Well, it seems likely that people like that would... Besides, 'where there's smoke there's fire'..." It certainly fit the bill in terms of having a lurid and titillating quality, with its elements of occult sexuality and violated innocence. It had nothing at all to do with reforming any systematic institutional failing, and was entirely about turning the full weight of moral condemnation against lone individuals.

We often use these cases as a way of morally purging ourselves. We show best -- so we think-- our hatred of homophobia or racism or sexual violence or the abuse of children by joining in the chorus of voices calling for retribution.

And yet how many times in history have exactly these same social evils been justified on the grounds of moral purgation? How many times were gay and lesbian people accused of molesting children? How many times were racist atrocities justified because of invented incidents of rape or sexual violence? Moral purging is no escape from immorality-- it is one of the easiest and most temping of paths toward it.

I want to dwell for a minute more on that last question, #5. I said at the outset that it is unforgivable both to discount the testimony of abuse survivors a priori and to assume the guilt of the accused. This is absolutely true.

It is not true, however, that the accused and the accuser have an equal claim to be believed, at every stage of an investigation. The presumption of innocence, I take it, is not just a legal principle, but also a moral one, which should apply in some measure outside of the courtroom.  It tells us, in essence, that it is far worse to punish an innocent person than it is to exonerate a guilty one.

The truth of this claim may not always and everywhere be apparent. At its heart lies a controversial assessment of the comparative moral value of retribution. The innocence presumption is thus an exacting and painful doctrine, which is only possible on a particular and not universally-shared view of justice. It is also one that does not always seem fair, at the intuitive level, because it has the appearance of inequity. But it is ultimately, I think, a good one. Here's why:

As deep as runs the nightmare of suffering a horrible evil and never being believed for it, the nightmare of unmerited guilt perhaps runs even deeper in the human psyche-- the horrible possibility that one will be cut off from all the society and affection of other people, be deemed too bad and irredeemable to merit forgiveness, for a crime that one did not commit or whose full consequences one could not have known. Paul Laurence Dunbar imagines it: "Slight was the thing I bought,/Small was the debt I thought,/Poor was the loan at best —/ God! but the interest!" It is the nightmare of Kafka's Trial. It is the terror of hellfire and original sin that has shadowed the Western conscience for centuries.

In a sense, the presumption of innocence asks us to view this fate as so cruel and unjust, that it is ultimately crueler and more unjust even than the fate of having to bear for the rest of one's life the consciousness that someone who committed a horrible evil against you has gotten away with it and remains free to do evil again. If our law truly treated these as equivalent, after all, there would be no presumption of innocence or of guilt. Both the defense and the prosecution would have to combat each other on equal terms, and the victory would go to whichever side happened to argue the more compelling case.

The fact that we do have a presumption of innocence, at least formally, shows that we have chosen to regard one of these two fates as worse, at last, than the other. It may not be immediately or always clear why.

I understand the presumption vividly, however, when I think back to a scene in the documentary "William Kunstler: Disturbing the Universe," which I have reviewed previously on this blog. Kunstler is defending someone who is most likely guilty -- and of an absolutely horrendous crime. In spite of this, there is something Kunstler says to the jury in the man's defense that retains a terrible quality of truthfulness. "If you vote a guilty verdict for this man," says Kunstler, "then there will come a time, one night in the future when you are in bed -- when you will wake up screaming."

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