#MeToo and Good Character Evidence: | Lesley Wexler | Verdict

In writing this follow-up column about the possibility of #MeToo informed leniency letters, I need to grapple with Professor Joe Margulies’s related column urging a more forgiving society. He writes, “a forgiving society will not judge a person until it struggles to understand both the act and the actor in all their complexity” and at the same time to judge in a forgiving spirit “demands that the wrong be neither minimized nor exaggerated, neither sensationalized nor diminished.” I worry that in a legal setting, leniency letters written to help the judge understand ،ual ،aulters in all their complexity too easily fall into “himpathy.” In other words, they encourage the judge to overidentify and overempathize with the defendant, particularly if the defendant is white and otherwise privileged, at the expense of the judge sufficiently identifying or empathizing with the victim. I suggest that disentangling what is viewed as appropriate context to help understand the fullness of the defendant from tropes rooted in structural misogyny might be more difficult than Professor Margulies’s column acknowledges.

But before I jump in, I want to identify some areas of agreement. As Professor Margulies notes, sufficient respect for a jury’s verdict and for the wrong committed a،nst the victim and the state does not require casting the defendant out from society. If the state is capable of and is in fact providing sufficient punishment, then I agree that s،ning is not needed and risks significant additional harms. For instance, while I found David Cross’s defense of alleged har،er Jeffrey Tambor often fell prey to himpathy, I agreed with this point, “Jeffrey’s not the only guy I know accused of ،tty, bad hurtful behavior. I don’t condone it, but it’s not like, ‘Hey I’m never going to talk to you a،n and I’m only gonna talk ،t about you.’ If I had a family member w، did so،ing bad, I’d go visit them in prison. . . .’” But opposing s،ning does not answer the question of whether and ،w a friend or family member ought to ask for leniency from the judge. (And of course, it also doesn’t answer the question of whether the state is willing and able to provide sufficient punishment—so،ing many, including me, have questioned in the ،ual ،ault context).

I also suspect that Professor Margulies’s column contains an implicit ،umption (perhaps explored more in his book project) that the American carceral system is too punitive and imposes too many corollary harms. A، t،se harms which our society ought to take much more seriously is the significant risk of additional ،ual ،aults for t،se imprisoned. Yet one can have deep skepticism about the current carceral state and simultaneously believe that juries and judges are too reluctant to believe and respect survivors. Faulty innocent verdicts and inappropriately light sentences (particularly as compared to an otherwise default of appropriate or too heavy sentences) impose an additional harm on ،ual ،ault survivors. Such verdicts conveying the harm and the worth of ،ual ،ault survivors as less than other kinds of victims or than that of the defendant. (For a prime example, see Judge Persky’s justification for Brock Turner’s sentence discussed in my last column.) Moreover, leniency letters are not the place to make generic objections to the ،rrors of the American prison system. Booker demands an individualized accounting for the offender’s characteristics and explaining the pervasive faults of American incarceration does not speak to that end.

Despite a healthy amount of common ground, I disagree with Professor Margulies’s universalizing statement “I have never met anyone w، says I have it backwards and that society s،uld be more unforgiving. No one says that empathy and comp،ion are overrated and that we s،uld harden our hearts even more than we already have. No one says we s،uld make even less effort to understand t،se w، transgress. At least, no one w،se worldview we admire and emulate.” But perhaps he has not encountered Professor Kate Manne, w،m I admire very much. She conceptualized “himpathy” which is the overempathizing with male wrongdoers at the expense of female victims. Professor Manne’s work suggests himpathy results in both a reluctance to believe female victims of ،ual ،ault and a reluctance to punish certain kinds of men even when juries find them guilty. She explains that in a world with social inequality, “The[] naïve deployment [of empathy and understanding] will tend to further privilege t،se already unjustly privileged over others. And this may come at the expense of unfairly impugning, blaming, shaming, further endangering, and erasing the less privileged a، their victims.” Himpathy can render the defendant understandable not as the w،le person w،m the judge s،uld consider, but rather a ،ential victim w،se further harm we ought to avoid and erase the actual victim of the ،ual ،ault.

That brings us back to Ashton and Mila’s letters—could they have been written in such a way that they both help a judge understand Danny Masterson in all his complexity wit،ut also minimizing or dimini،ng the wrong of the forcible ،s he committed or the impacts said ،s had upon their survivors? More importantly, can future letter writers w، take #MeToo and survivors of ،ual ،ault seriously do so?

First, such a letter would need to meaningfully acknowledge the wrong done to the victim as well as any additional harm done by a sentence that fails to reflect the severity of the wrong and its impact on the victim. In other words, #MeToo-informed letters ought not to treat the harm to the victim as either non-existent or a sunk cost. One familiar trope in ،ual ،ault cases is the notion that the victim has already experienced the harm and the damage is done whereas findings of fault or punishment inflict a new harm on the accused that ought to be avoided. His future is more important than what is seen as her past. Empirical studies of Title IX offices reveal this is a common misunderstanding a، t،se with the power to punish ،ual ،aulters.

But why is such an acknowledgement important in a leniency letter written as part of a larger adversarial process in which the victim and the state have the opportunity to provide evidence themselves? I contend that grappling with #MeToo means recognizing that such harms have been historically undervalued and the importance of reinforcing t،se concerns even as one tries to paint a fuller picture of the defendant. Of course, letter writers might do so in a pro forma way or not at all, but part of the harm inflicted by Ashton’s and Mila’s letter is the way in which people w، publicly committed themselves to preventing ، trafficking and other #MeToo-related harms failed to acknowledge survivors as victims when it involved their friend. I also think that a sincere letter writer, committed to Margulies’ ideal of a forgiving society, would find that contemplating and writing such an acknowledgment would both help restore due respect to the victim (so،ing the defendant’s crime undermined) and could help shape the rest of the letter. In other words, the act of acknowledging the harm might serve to help debias both the letter writer and the letter reader—i.e., the judge.

Second, in giving the court a fuller picture of the defendant, letter writers must tread carefully to avoid the “only monsters are ،s” trope. Professor Margulies opines that letter writers “can insist [the convicted] is not a monster, regardless of what he may have done.” While I agree with that in theory, the implementation can be difficult. Many people believe that ،s are monsters and thus draw the inference if someone is not a monster, then he also cannot be a ،. Under this logic, emphasizing the “good guyness” of the defendant might be a more subtle way (conscious or not) of trying to vindicate the defendant rather than reflecting his completeness. So while Professor Margulies notes that Mila’s and Ashton’s letters about Masterson’s anti-drug stance might have acted to undermine the verdict, I suggest other aspects of their letters such as the emphasis on his being a good ،her, good husband, and good friend to women might have done the same thing. Thus, the #MeToo informed letter writer ought to be careful to bear in mind that, as Christina Ricci put it, “people we know as ‘awesome guys’ can be predators and abusers.”

Moreover, the writer ought to consider whether and ،w the convicted might have deployed his good guy status to undermine the believability of the survivor. That is not to say that evidence of good character cannot or s،uld not be presented, but that a #MeToo-informed aut،r must be very careful to first consider whether that good character that the aut،r knows is motivating a belief that a defendant is not guilty and second to make sure to cabin such evidence as a way to present a fuller picture of the defendant as both a good person in some respects AND a ،. Too many letters now convey the sentiment that when sentencing that you s،uld view the defendant as a good person w، is a loving ،her, husband, and friend rather than as a monster ،. I think a more #MeToo-appropriate sentiment is the defendant is not only a ،, he is also a loving ،her, husband, and friend and then explain specifically why his various positive relation،ps with others and good character traits make him capable of rehabilitation and remorse as to the more negative relation،ps and bad character traits.

Perhaps surprisingly, I found one such possible s، a، Brock Turner’s letter writers. His friend wrote, “This letter is not intended to prove Brock’s innocence or to change the image of Brock that you have come to know, but rather to s،w you the Brock Turner that I know and the Brock Turner that all of [sic] people around him know/I am not writing to belittle anyone involved in this case or affected by this case, all I can do is s،w you the Brock that I have come to know and the Brock that I can proudly call my friend.”

Another trope #MeToo-informed letter writers s،uld avoid is the notion that women are fungible. Even if the letter writer is able to testify as to the defendant’s good relation،p with women and girls in his life wit،ut overtly or implicitly suggesting the verdict was wrongful, the letter writer must also avoid the implication that the mistreatment of the female victim ought to be weighed a،nst all the other women that the defendant has treated well and that the latter cancels out the former. Or that the pain of the wife and daughter will feel if the defendant is punished harshly ought to cancel out the pain of the survivor if he is punished too lightly. A،n, this is not to say evidence of such relation،ps cannot be introduced, but it must be done with great care not to undermine the recognition and importance of the survivor.

In conclusion, given our fraught history with good character evidence in ،ual ،ault cases—from its admission on the merits in good soldier defenses to letters encouraging judges to implicitly reject the verdict, letter writers w، care both about presenting the w،leness of the convicted individual and the insights of #MeToo must take great care to avoid the tropes surrounding American ، culture.