To The Contrary

Funding for To The Contrary provided by: This week on To The Contrary: I think one of the mos important things to understand about the MeToo movement is it made it very clear that sexual assault cases are no longer going to be litigated only in the courtroom, and the defense attorneys and the prosecution have understood that and changed their tactics as a result.

In some of these cases there are people who have power and have money and have fame.

They are able to use these tactics that involve sending out artificial intelligence into the social media atmosphere.

It'll make the narrative seem a certain way, and you might have people believing it.

Hello, I'm Bonnie Erb.

Welcome to To The Contrary a discussion of news and social trend from a variety of perspectives.

Has the MeToo movement lost momentum?

In courtrooms, defense attorneys are deploying aggressive strategies that paint accusers as dishonest or greedy.

Meanwhile, in Hollywood, prominent actresses say the movement was quickly stilted.

Joining me this week are Debra Kamin, investigative reporter for The New York Times, and Julia Jena, an attorney and former legal correspondent for Court TV.

Welcome to you both.

So has the MeToo movemen lost ground in the court system?

Let's start with you, Debra.

It's not a simple question to answer.

The MeToo movement has not lost ground in the court system.

The court system has adapted in the face of the MeToo movement, and now we're seeing a backlash to methods that were perhaps extreme in one way, they're now going the other way, and you're seeing defense attorneys understanding that juries have a very different mindset about sexual assault and about what it means to say that you've been raped and changing their tactics as a result.

When you say that the tactics have changed, can you go into a little more depth on that for us, please?

Absolutely.

For a long time, there was a standard practice in rape trial that defense teams understood.

There was a he said, and there was a she said.

And many of the key defens tactics revolved around the idea simply denying the rape occurred.

Now we're in a world where there's a lot more nuance and there's a lot more understanding that sexual assault is not a monolith.

It's very, very complicated.

And the emotions and the trauma of women who experience it are very complicated.

And defense attorneys understand that juries have shifted their thinking.

So now, rather than denyin the rape occurred as a defense, they will say, yeah, there was sex, but it's not what she's saying.

She's lying, or she's motivated by a number of tactics that are actually a result of the MeToo movement.

And they try to paint the woman as an opportunist and someone who can't be trusted, rather than someon who's simply making up a story from the ground up.

And have they succeeded in persuading judges, jurors, whomever, that these women are lying?

Sometimes they have succeeded, and it's not even lying.

It's even understanding that these women perhaps are confused, or their definition of what assault is might be different than what the legal definition of assault is.

But even in the past year, we've seen a number of very high profile sexual assault cases, from Harvey Weinstein to Sean Combs, known as P. Diddy, to the Alexander brothers here in New York City.

And many cases of these, they have succeeded in getting rid of at least some of the most extreme charges against the men.

But in other situations, like with the Alexander brothers, a trial that I covered, some of these tactics appear to potentially have backfired and turn juries against them altogether.

Julia, what have you seen similarly or differently on your side in terms of changing tactics?

Well, I agree with Debra that I do think that it can seem like, and it's complicated as to whether or not the movement has lost ground but I do think it can feel like there's been a losing of ground because one of the great markers of any movement, but especially with the MeToo movement, is that in an unprecedented way, powerful people were being held accountable.

And being held accountable to the highest way, highest measur is the criminal justice system.

And seeing people actually se jail time for their malfeasance.

And to have these entertainment moguls like Harvey Weinstein and Bill Cosby actually be charged and convicted.

These were very real legal victories for the movement.

It gave it so much credibility and legitimacy.

So then to see thos particular cases overturned by the appeals courts, I think those headlines can create the sentiment that we're going backwards, that we're losing ground.

And I don't necessarily think that it's as easy as that.

There are specific reason why those cases were overturned.

But I do see a shift in how defense attorneys are approaching these cases in prior years.

What I think before the MeToo movement created for victims is this silence that permeated everything.

Things happened to women, and they felt that they were the only ones it was happening to, and so they kept silent, didn't feel that anyone believed them, didn't feel that they could come forward, and the MeToo movement radically changed that.

It not onlyjust through a hashtagshowed that there are other people who have dealt with the exact same thing that you have, but it also let everyone else know that even if it hasn't happened to you it happens to a lot of people, even recognizable names, people that you know and love.

These actresses were coming forwar and that credibility was huge.

So I think defense attorneys have recognized they can't hide behind non-disclosure agreements.

They can't hide behin no comment from their clients.

And we're just going to keep it quie until perhaps there's a trial.

I think now they are very much getting ahead of the allegations, accusations when they happen, and they're doing i in ways that are far reaching.

They're using the internet, they're using social media, they're using documentaries.

And I think one of the biggest examples, most recently, you mentioned the Sean Diddy Combs case.

In a situation like that 20 years ago, you wouldn't have his attorney sitting down for a documentary pretrial.

You wouldn't have them embracing some of his bad behavior, but attacking the la in the way that he was charged.

So I think the headline can make it seem like there's a shift and a change going on.

But there really has been some great positive changes since the movement.

Well, I'd like to ask both of you, so where does the movement go now in terms of how the cases are treated in court?

Do we go back to an era when women are not believed?

Do we go forward to an era where people are believed or some people are believed?

Which way are we headed?

I thin one of the most important things to understand about the MeToo movement is it made it very clear that sexual assault cases are no longer going to be litigated only in the courtroom.

So whatever direction we go, we have to understand that even though the courtroom might be behind closed doors, these cases are now very, very public.

And the defense attorneys and the prosecution have understood that and changed their tactics as a result.

So in addition to all the things that Julia just said, which are so, so sharp and right on, we also have a movement where you have defense teams now hiring public relation officials to talk to the media and litigating the case in the media and trying to get control of the narrative before the trial even begins, understanding that jurors are probably reading those headlines.

Like you said, you have lawyers sitting down for interviews.

You have social media now entering the game as a huge tactic that's largely unregulated when it comes to understanding the court of public opinion.

So whatever it does go, it's not going to be just between a judge and a jury and a handful of lawyers.

It's really about taking this conversation, understanding.

It's very, very broad.

And in many ways it's hard to control all the tentacles of the conversation.

But the conversation is now much bigger than it ever wa and much more out in the open.

And that's a good thing.

So, Julia, what are lawyers doing to counter this social media influence?

That's where I thin prosecutors will have to regroup when it comes to how they approach these cases.

There's a limitation on what prosecutors can do, right?

They have to turn over evidence that they receive that may be helpful to the defense.

They have to turn it over to the other side.

They can't do things that are unscrupulous.

Of course, we don't want defense attorneys to be unscrupulous either, but prosecutors are required to follow certain rules in the way that they handle the prosecution of cases.

And going to social media, hiring a PR team, doing smear campaigns would be completely outside the bounds of what a prosecutor can do.

But what I haven't seen yet and I anticipate in the future we will see, is an actual legal consequence for these campaigns, a legal consequence for even the bots.

I mean, that's a new thing that we hadn't seen before.

But in some of these cases there are people who have power and have money and have fame.

They're able to use thes tactics that involve sending out artificial intelligence into the social media atmosphere, where you think there are thousands and thousands of peopl who are against an individual.

For the purposes of thi discussion, let's say a victim, it'll make the narrative seem a certain way, and you might have people believing it because they think there are so many people who are on the side of one person versus the other, and there really isn't a legal ramification system for that yet that I've seen, I have not seen anyone held to account for that because it's even harder to prove.

Usually it's not the defens attorneys who are handling that.

It's some separate team.

So I think that is where the response can tighten up.

But I don't know if prosecutors have as much at their access to combat that.

But Julia, there is the case of Justin Baldoni and Blake Lively.

And she did bring a lawsuit.

But obviously that lawsuit, she ended up settling it.

But that was maybe the first real case of someone saying, hey, I made a case about sexual harassment and other things, and she was attacked with a smear campaign, and she did go public.

So there is there's there's inching towards a conversation, even if we're not opening the doo fully for that conversation yet.

So I think you're right.

That's the next, the next aren where these arguments are going to really be fought out and also where the legal system needs to catch u to make sure that they can hold people accountable for bad behavior that happens outside of the courtroom.

Absolutely.

But let me just say something as a journalist who's covered those kinds of trials when they were in Washington, D.C., or hearings before Congress, etc.

but you'reyou, Julia, particularly are talking about hiring PR firms like it's a brand new thing.

It's been going on i the legal world for generations.

I presume you know that.

Oh, absolutely.

It's more so the way that they are employing it in social media where they are taking, I call them bots because that's essentially what they are, the robots that they are hiring that go out and post on behalf of whichever side.

So it's even more advanced, I would say, than we've ever seen before.

But there are no rules.

Like if you hire an expert to testify in your case everybody knows it's announced.

This is a paid expert who is working for your side.

And is that known in the court system?

No.

And the tactics have shifted I mean, I've seen it from my reporting as well that you now have defense teams who are working with publicists, and they're doing things that we've never seen before.

The idea of PR, especially when it comes to sexual assault cases and women who are maybe being smeared, the entire arena has changed.

And I think, Julia, you're right, this is something I've been covering in my own reporting, and I'm still looking at for a stor that might come later this year.

It's completely shifted, and it's much more discreet.

When publicists used to speak on behalf of men, it was announced who they were and they were clear about it the same way journalists announce who they are when they're doing their work.

This is stealth, and most people who are encountering it have no idea that they'r potentially being manipulated.

A really good example of where we saw this is the Johnny Depp and the Amber Heard case.

That was really one of the first times that people maybe were potentially aware that what they were seeing online, there were string being pulled in the background, and that affected the outcome in the courtroom as a result, even though the work did no happen in the courtroom at all.

It's almost the unintended effect of it all, right?

The MeToo movement was a hashtag movement, and people began to use it and it caught fire.

So unfortunately, the backlash is the creation of hashtags.

You mentioned the Johnny Depp versus Amber Heard.

There were specifically some very negative hashtags that her camp accuse Johnny Depp's team of creating.

And I think where I see the limitations in the court arena is that no one ever then held accountable anyone on the defense team or on Johnny Depp's team for those bots, because they really couldn't connect it.

It did come up.

It was argued that this was happening behind the scenes but the judge could not penalize the attorneys for doing it because there was no proof that there was any connection or really even any way to say for sure that it had been connected to anyone.

It was all allegations.

So I'm under the impression again as a, you know, almost like a member of the public in the sense that I'm not covering this as I used to cover all these stories as they were breaking.

But so what's the next step if the movement, if the MeToo movement i so many steps behind all other kinds of sexual assault court cases, what's the next one?

What's going to come up?

I just got the impression, for example, that they' run out of cases to publicize.

But it also happens my husband's a litigator who has a friend who's a pretty big time agent in Hollywood, and he said, nothing has changed.

There's still exploitation going on.

And there's, you know, there's still, you know, men are more easily believed than women are.

Well, I will say that I'mit's very disheartening to hear that that's the sentiment of those who are in that industry.

I think when we're sitting in these trial and we see finally justice for these accusers, and we see prosecution being on the side of those who may not have had the kind of evidence that typically would have been required by a prosecutor to even take up a case.

But now it seems like there are wome who are being believed, victims, men and women who are being believed more.

But then to hear that in the industry that the same thing is happening, that is very difficult to deal with as a society, I think, and that may be the reason that we're hearing people say that they think that the movement has been stifled, that it was too much of a moment and not a movement.

But I do think one thing that it has certainly changed and there could b an unintended reaction to this, but the idea that there was a rape myth acceptance, and that's something that the movement sought to eliminate, that people would come into a courtroom, jurors, and especiall if it had not happened to them, they believed if police were not called, if no one got the report, if the person was friendly with their accuser afterward, that that automatically annihilated a claim, that you couldn't bring one, prosecutors shouldn't even entertain it.

But I do think that there has been a great education from the movement where people understand mor the reasons why that may happen, the reason why police may not have called, but the unintende consequence of that may be now that if police aren't called then jurors will question, well, since the MeToo movement you should have felt comfortable coming forward.

And I don't think it's that easy.

I don't think it's that simple.

These cases are very complex, and there are still very many arenas you're mentioning, even in Hollywood and people who are in that industry, in the entertainment industry where there are still powerful people who are not on board with the changes that have happened.

And your thoughts, Debra, about what's next for the MeToo movement and for women who are sexually assaulted i Hollywood and in other places?

I mean I think we are at the beginning of a massive shift and nothing in history has ever been a straight line, the MeToo movement also, it's not going to be that all of a sudden something changed and there's this permanent shift.

There's never going to be a backlash.

Rape has always been the only crime where the behavior of the victim is called into question.

No one ever says in crimes of murder or burglary, what were you doing that potentially led to this and made you accountable?

But with rape, it has always been that the behavior of the woman is litigated, is also on the stand.

And that has not changed.

And it's not going to change.

But there is an understanding that rape is complicated and it's nuanced, and human behavior has all sorts of shades.

And women react in a multitude of ways.

And prosecutors no have also shifted their tactics.

They understand that they can try to educate a jury about how a woman can be attacked, and also react afterwards in a way that that didn't used to be.

So what will come next, I believe, is hopefully a change in the legal system itself.

So we have more laws at our disposal to litigate rape.

Part of the problem is also that on a federal statute, rape is almost never something that can be accused as a federal crime.

It's only at the state level.

So for all these federal cases, we're actually prosecuting them as sex trafficking cases, not rape cases, which are significantly more complicated and have a much higher bar and leave a lot more holes for defense teams to pick at.

So perhaps the laws now will respond.

And also, as Julia mentioned, the social media wars and the the bots and the influence campaigns that go on in the background can perhaps now be understood better and we can start to attack those as well.

That's the next frontier.

So it's not that it's dead, it's that it happened and it was influential and it was important, and there was a backlash to that, which is understandable.

And also our political moment has changed.

We are living in a time where the manosphere is back, where our president has been accused credibly of rape.

We are at a moment that is very, very different than it was in 2018.

It will shift back.

History always goes up and down, but you have to look at it through a long lens, not a short one.

So for the public who may have jumped to the conclusion, as did I, that the cases stop coming because there are no cases to come, what's the proper message for the media to be sending to them right now?

Either one of you.

I think that's a really interesting question about the media, because I'm remembering a clip that I saw from the 90s and 2000s.

It was in a documentary about Sean Diddy Combs, and the reporter was talking about a lawsuit that he had faced back in the 90s and outside of the courthouse, as reporter gave the details, but then said in almost this authoritative way that, you know, that a celebrity as big as Sean Diddy Combs is going to be attacked by frivolous lawsuit and people just want his money.

So we don't anticipate that a lawsuit like this one will go very far.

And I was very surprise at the tone, but thatthis was a very well-known outlet tha the reporter was reporting for.

And I recognized that when we look back at things sometimes they don't age well.

And I do think that was the sentiment then, that media outlets even had to be careful about what they said because they didn't want their own legal issues.

There's definitely been a shift, but I think one of the things that the media has to make sur they're doing is being measured in the way that they cover these, that they do still look at both sides and not just ride the waves of whatever the trend is.

There have been aggressive prosecutions.

Debra mentioned that now prosecutors are using sex trafficking charges.

I sat through the R. Kelly trial and of course we all watched the Sean Diddy Combs one.

And I think the reason that Sean Diddy Combs was acquitted is because there wa an overreach by the prosecution trying to write the wrong of a very terrible assault that could not be prosecuted.

And unfortunately, that can create a distrust in the community with your prosecution if they are overreaching.

So I do think there needs to be that measured approach in everything, and not just 100% never believing the person who is accused.

I think there are very legitimate situations where someone has been accused and it is about money, but that doesn't mean it's that way across the board.

And every case on a case by case basis needs to b looked at with a critical eye.

Well, we all know and lawyers who've been through trials certainly know or even just been through law school certainly know if they took an evidence course that there are rules.

There are such things as hearsay, if it was spoken outside the court by somebody who's not a witness, it can't be, you know, rules that change, obviously, but it can't be used as evidence.

What new rules surrounding evidence do you think the MeToo movement hands up, you know sticks in his hand and waves it as a banner of these rules need to change to make the trials fair to wome who have been sexually abused?

That's a really good question.

I don't know that there's one single rule, and I'm not sure if you mean ones that have already changed or one that is ahead, because I do think it comes down Either or, whichever you want to follow.

Well, you know, we can talk aboutthere's rules in terms of evidence.

I think there's less there, post-MeToo.

But in terms of victim protections, which might encourage more women to come forward, we can I can talk about those a little bit, just in terms of being able to use pseudonyms and the way rape show laws have made certain things more likely to be off the table in a courtroom.

And those are very important because all of those factors hopefully encourage wome to go forward with accusations and bring them, because the key problem is that so many rape accusations never make it to a courtroom in the first place.

I think the numbe that's thrown around, something like 98% of rapists never actually end up in a courtroom, because the steps that are required to get there, it's so difficult for victims from a legal perspective, but also just an emotional and a trauma perspective to make it all the way there.

So everything we have to protect victims, to help them feel confident that they can at least have a moment to say their side in a courtroom and hope that they will be believed.

That is helpful and useful and productive.

Your last thoughts, please, Julia.

Yeah, I would agree with that on privacy.

That has always bee one of the most difficult things for the victims in coming forward, knowing that their name is likely going to be out, and we're talking about ho pervasive social media can be.

It's even further than how it was in the past.

Maybe everyone in your workplace knew about it if you came forward against someone who is in power, but now it can be something that lives forever on the internet.

So of course, through Marsy's Laws and different laws throughout the country, there are things in place to protect their identity when they testify, as someone who works in legal journalism and courtroom coverage, you know, we don't air that We don't allow that to get out.

But I do know that there are times that those names do get out not for lack of the court system trying to protect it.

So I think there are some gains that can be made there to protect people who come forward even more.

Well, I want to thank you both for shedding light on a very complex and changing topic, changing as we speak.

So, but thank you both and we'll be looking for that next case to come forward.

And we'll be interested to se what it is and who it's against.

That's it for this edition of To The Contrary, let's keep talking on social media, including X, Facebook, Instagram and TikTok.

Reach out to us @tothecontrary and visit our website, the address on the screen and whether you agree or think to the contrary, see you next time.

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