While the current system of addressing sexual harassment is problematic, the other extreme of easy anonymous sources is also not ideal for victims
When Charles Dickens wrote, “it was the best of times, it was the worst of times", he could have been describing women’s experience navigating the world today. On the one hand, we have it vastly better than previous generations in terms of opportunity, empowerment, and rights. On the other hand, unsafe public spaces, chauvinistic and parochial private spaces, closeted work spaces, are all easily available to sexual predators who seek to scare, violate, hurt, and undermine women.
It is in this social context that women (and men) are attempting micro revolts. Movements like #MeToo explore and reveal the magnitude of sexual predation. Lists of alleged sexual predators are being formulated online—some anonymously sourced, and others carefully vetted through a network. These movements and lists intend to give voice to the victims and warn unsuspecting individuals.
At its core, this is an attempt to reclaim the ground lost because of dysfunctional criminal justice and social systems, which enable sexual predators to survive and thrive in plain sight. Some have lauded these lists for serving as a cautionary tale for young women and bringing public attention to sexual predators. Others are appalled that public lists are being circulated on the internet (which does not allow memory to fade) without giving the accused a chance to clear their names.
So, are they right in using informal shaming and shunning mechanisms through the internet? And what are the costs and benefits of this new, informal, and often anonymous system?
Even a well-functioning criminal justice system can undermine victims of sexual assault. In India, things are undeniably worse. It is hard enough for a victim to register an FIR at a police station for sexual assault; getting a conviction against the perpetrator is often a pipe dream. In cases involving sexual assault or harassment, a false positive occurs when an individual convicted of sexual assault is innocent. A criminal justice system rooted in due process seeks to minimize false positives, based on the maxim that it is better for a thousand guilty persons to go free than one innocent person to be wrongly convicted. In the process of reducing or eliminating false positives, the system produces a very high number of false negatives, i.e. the guilty sexual predators walk free.
Minimizing false positives at the cost of false negatives has an adverse effect on the social context within which sexual assault occurs. The nature and social context of sexual assault often gags and shames its victims. When the chances of a perpetrator being charged and convicted are slim, and the burden of proof high, victims are discouraged from coming forward. And sexual predators face virtually no consequence for their actions.
To remedy the barriers posed by the current system, social movements are attempting to create spaces for more victims to speak up. These lists created and shared through social media fall into many categories. While some are anonymous, others are vetted by individuals well-versed with prevailing legal standards. Yet others have the same evidence corroborated by many different sources.
Where such lists are carefully vetted by individuals and networks, the next step requires institutional support from the organizations where these sexual predators work. This is easier said than done. While such lists make it easier for victims to report assault and harassment, unless organizations develop sensible procedures to deal with complaints, predators will remain in positions of power.
For lists created using anonymous tips, the pendulum has swung very far from the standard of the criminal justice system. These lists intend to reduce the false negatives by making it easier for victims to report cases. In this process, they create the possibility of false positives (unless they naïvely believe that no one erroneously accuses anyone of sexual assault). This system follows a drastically different maxim: guilty unless proven innocent.
The usual criticism is the lack of transparency and due process of anonymously sourced public lists. The internet makes the problem worse. It is difficult, if not impossible, to absolve oneself of a charge cached in the deep recesses of the web.
However, there is a graver consequence of encouraging a system that may be a global game of Chinese whispers. If these anonymously sourced lists have too many false positives, or fail to distinguish between different kinds of sexual harassment and assault, it will lead to the entire list being called into question. This may normalize or socially exonerate the actions of everyone on the list. Soon there will be apologists for some of the names on the lists, and the doubts cast will inadvertently protect all the names on the list. A world where all are guilty unless proven innocent, normalizes the guilty. It also makes it harder to spot the real predators, who will hide in plain sight among innocent, honourable individuals in the questionable lists.
This won’t make victims better off, and may actually undermine the victims’ voices. Despite victims courageously coming forward, society may not believe them due to faulty lists perpetuated by anonymous, uncoordinated actions on social media.
While the current system of overwhelming error and false negatives is problematic, the other extreme of easy anonymous sources with too many false positives is also not ideal for victims of sexual assault. What is needed is a system rooted in due process, but one that reduces barriers to entry. And that seems elusive for the foreseeable future.
Shruti Rajagopalan is an assistant professor of economics at Purchase College, State University of New York, and a fellow at the Classical Liberal Institute, New York University School of Law.