CHAPTER 7

The #MeToo Movement: Virtues, Vices and Suggested Improvements

 

The #MeToo movement began with a series of media exposés of Harvey Weinstein. I had represented Weinstein’s company with regard to First Amendment issues in his early years as a film producer. I helped his films secure appropriate ratings from the Motion Picture Association of America. When he was recently indicted, his lawyers sought my legal advice about obtaining exculpatory emails from his accusers. I had been litigating to obtain the exculpatory emails in my own case, so I shared my experience and expertise with his lawyers. (Ironically, David Boies had been Weinstein’s original lawyer trying to stop the media from reporting about this alleged harassment, but when The New York Times—whom he had also been representing—discovered that Boies had hired an investigative firm to intimidate Times reporters who were covering Weinstein, the Times fired him and he stopped representing Weinstein.)

The Weinstein exposé led other women to come forward against prominent men, and the #MeToo movement was born. The philosopher Eric Hoffer once described the evolution—or devolution—of movements as follows: “Every great cause begins as a movement, becomes a business, and eventually degenerates into a racket.”⁴² Only time will tell whether this becomes the fate of #MeToo. One thing is already clear: some unscrupulous lawyers are trying to exploit the #MeToo movement for personal profit by helping women file false or exaggerated accusations against innocent men. If this tactic is allowed to succeed—if there are no consequences for levelling knowingly false accusations—it will spread and become a “racket.”

A corollary to Hoffer’s cynical, if prescient, assessment is the historical truth that some movements and causes are driven by an “ends justify the means” mentality. Some zealots who push these movements and causes are so convinced of their righteousness that they become intolerant of dissent, due process and other cumbersome barriers to their truth, with a capital T—a Truth of which they are absolutely certain. For them, procedural safeguards—such as the presumption of innocence and the requirement that the accuser prove her case by evidence—are unnecessary when a woman accuses a man of sexual assault. But as Justice Felix Frankfurter once reminded us: “The history of liberty has largely been the history of observance of procedural safeguards.”⁴³

We are already seeing the decreasing respect for such safeguards with the #MeToo movement. For some in that movement, an accusation by a woman is enough to establish guilt, because “women don’t lie,” and “women must be believed,” about being sexually assaulted.

The point these advocates are making is that women who said they were sexually assaulted have been routinely disbelieved over the years, and the time has come—indeed, it is long overdue—when the presumption should shift from disbelief to belief. There is much to be said for this view, but it must not deny the falsely accused the right to prove his innocence. There is no gender-linked gene for truth telling or lying.

Consider, for example, Meghan McCain’s demand that I be banned from TV because I was “accused” by Giuffre. I will discuss this demand at greater length in Chapter 10, but for now it is enough to note that both Giuffre and I have been accused of serious crimes: I was accused by Giuffre of having sex with her, and she is accused by me of committing perjury in falsely accusing me. My evidence is far stronger than hers—indeed, she has no evidence. Yet, McCain would not demand that she be banned from TV because she has been accused. To the contrary, she would be welcomed by McCain on her show, as she has been on others.

Moreover, women victims may be telling the truth about some aspects of their victimization and lying about other aspects. That may well be the situation with Giuffre. A person who, at a young age, has been repeatedly abused—as Giuffre apparently had been even before she met Epstein—may develop coping mechanisms for surviving abuse. These mechanisms may include lying and stealing⁴⁴—both of which Giuffre has been caught doing. This doesn’t mean she wasn’t herself a victim of someone’s abuse, but it may mean that she has victimized others as well through her abusive dishonesty.

* * *

Giuffre may well be telling the truth about having been victimized by Epstein, but she is lying about me. I don’t know whether she is telling the truth or lying about others, but there is a Latin legal principle that says “falsus in uno, falsus in omnibus”—“False in one thing, false in everything.” This may well overstate the reality, because some people can be telling the truth about certain matters, while lying about others. But judges do and should instruct juries to view with “skepticism”—some say distrust—the testimony of witnesses who have a proven record of lying. The same should be true in the court of public opinion.

In general, the testimony of one witness is sufficient to make a legal case, even if it is uncorroborated. But when that witness has a history of lying—especially about related issues or people—some degree of corroboration should be demanded before their accusations are credited, especially if serious consequences flow from believing him or her. That makes common sense and is consistent with fairness and due process.

Yet in the era of #MeToo, that common-sense approach is often not followed when it comes to accusations of sexual misconduct by a woman against a man. In my case, Giuffre has falsely accused other prominent men for money. She has lied about how old she was when she met Epstein. She was caught stealing money from a business where she had worked. She is lying about her non-fiction manuscript being a novel. Yet her uncorroborated accusation against me has been credited by some in the #MeToo movement and the media despite the overwhelming evidence that she is lying.

The #MeToo movement must not become hostage to those who seek to exploit it and turn it into a racket. It must distinguish between true victims of sex abuse, false victims and those who may have elements of both. It must become more nuanced in its assessment of accusations. If the mantra that all women always tell the truth and that all women should always be believed were to become widely accepted, it would simply substitute one form of sexism for another. In the past, too many women were disbelieved just because they were women. The #MeToo movement rightfully challenged that over-general stereotype. But the other over-general stereotype—that no woman should ever be disbelieved—must be challenged as well. The #MeToo movement began as an understandable reaction against the sexism of allowing predatory men to get away with abusing women. It should not be allowed to be distorted into an overreaction that allows greedy women and their lawyers to turn innocent men into victims of deliberately false accusations.

Despite the sordid history of women not being believed, there is no place for “affirmative action” when accusations of sexual abuse are disputed. Women and men should be treated equally when it comes to credibility. The presumption of innocence should be applied to both genders and the burden of proof should fall on accusers, regardless of their gender. The burden should, of course, be higher in criminal than in civil cases, but no one should be presumed guilty or liable without convincing evidence. The noble ends of gender equality must not be allowed to justify the elimination of due process as a reliable means for assessing serious accusations of sexual misconduct.

David Boies and his legal team have not only hurt the #MeToo movement, they have hurt their own client by having her submit perjured affidavits about me. She may well be telling the truth about Epstein and others, but her general credibility as witness has been shattered by her proven lies about me.

Ironically, Boies told me that he thought it was a mistake to have Giuffre accuse me and that her account regarding Epstein and others would have been far more credible had she not included me. (Appendix B) Boies knows that I never met Giuffre and has admitted—in a recorded conversation—that she was “simply wrong” in accusing me, because it would have been “impossible” for me to have been in the places she claims to have met me.

Giuffre’s provably false sworn statements make it impossible for ethical government lawyers—or for any ethical lawyers—now to vouch for her credibility. Had she not falsely accused me, her credibility might be intact. For reporters to rely on the credibility of witnesses with a proven record of perjury—as the Miami Herald, The New Yorker, NBC’s Dateline and others have done—diminishes the general credibility of their reporting. (See Chapter 10) False witnesses also hurt the #MeToo movement by casting doubt on the credibility of truthful victims. Boies is not a hero of the #MeToo movement, despite his crass efforts to anoint himself as such. He is a villain who has hurt innocent people, damaged a positive movement and, most shamefully, diminished the credibility of his own clients—all for self-serving and self-enriching purposes.

There is an important difference between a criminal defense lawyer who must defend his client even if he knows his client is guilty, and a civil plaintiff’s lawyer who must never bring a lawsuit charging a defendant with serious misconduct if he knows the defendant is innocent. Even a criminal defense lawyer may not call the defendant or any other witness to the stand if the lawyer knows the witness will lie. The noble ends of the #MeToo movement do not justify the ignoble means of allowing a client to falsely accuse an innocent man.

The #MeToo movement will be judged by history and not just by the passions of the moment. For it to be remembered as a positive movement, rather than as a business and racket, it must not allow those who would wrongly exploit it for personal profit to hide behind its virtuous shield, turning it into an exploitative sword against innocent people.

 

42 He also put it this way: “What started out here as a mass movement ends up as a racket, a cult, or a corporation.” The Temper of Our Times.

43 McNabb v. United States, 318 U.S. 332, 347 (1943).

44 According to a police report, Giuffre was fired from a restaurant job for stealing money.