#MeToo Needs a Statute of Limitations and Moral Awakening

The older accusation, the more authoritative the evidence must be, even regarding sex crimes.

The Jerusalem Post

September 25, 2018

#MeToo Needs a Statute of Limitations and Moral Awakening

The older accusation, the more authoritative the evidence must be, even regarding sex crimes.

S exual assault allegations dating from the 1980s against Judge Brett Kavanaugh invite an easy conclusion that’s hard to follow – and a hard conclusion that’s easy to follow. Clearly, the issue involves sex, not just sexual assault. Demanding consent for every sexual interaction is easy to endorse, hard to enforce. The harder conclusion involves applying some statute of limitations to accusations. Beyond leaving some innocents unfairly accused, unable to prove their innocence, too many outdated allegations risk making the #MeToo movement seem unfair and unjust. 

Prevention is more important than punishment. So far, the discussion has been too mechanistic, as if potential sex partners must wave red or green flags for stop and go. But this sexual abuse epidemic reflects a deeper, unfashionable, truth: the problem here is missing ethics more than misusing power. If everyone followed Hillel, refusing to do that which is hateful to us onto our neighbors, even demeaning wisecracks, despicable pawing, manipulative relationships, would stop. 

The post-1960s hook ups and bed-hopping made matters worse. Without romanticizing the “good old days,” the if-it-feels-good-do-it sexual revolution freed too many (overwhelmingly male) predators to hurt too many (mostly female) victims. Again, the easy part is declaring “Be good.” Living it is harder.

As sexual accusations mount, we must ask: how old an allegation is too old? 

Both courts of public opinion and courts of law need statutes of limitations. Kavanaugh’s critics should remember: the test of our commitment to justice doesn’t come when innocent friends are falsely accused, but when guilty – or unpopular – people might be treated unfairly. Juanita Broderick’s rape accusations against Bill Clinton and Karen Monahan’s complaints of “emotional and physical abuse” by Congressman Keith Ellison are more credible than the two hazy, decades-old, alcohol-blurred accusations lodged so far against Judge Kavanaugh. #MeToo cannot just target Republicans while absolving Democrats. 

The older accusation, the more authoritative the evidence must be, even regarding sex crimes. 

The statute of limitations is a bedrock of Western justice. In 1540, the English Parliament mandated the ancient notion that imposing varying time limits on prosecuting particular crimes guaranteed social order and treated individuals fairly. Over time, evidence deteriorates, the guilty sometimes repent and punishment’s preventative dimension diminishes. Since 1879, America’s Supreme Court has explained that Statutes of Limitations “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost.” Such rules – “vital to the welfare of society” and “enlightened jurisprudence” – provide “security and stability to human affairs,” because “even wrongdoers are entitled to assume that their sins may be forgotten.”

Philosophically, let’s debate how much time must pass before assuming a now-blameless, one-time criminal has changed enough to make reporting the crimes unfair. In Betraying Spinoza , Rebecca Goldstein identifies the “philosophical dilemmas” stemming from “bodily persistence over time.” Examining a photo of her younger self, Goldstein considers this live stranger she sees who is her: “the very atoms that composed her body, no longer compose mine. And if our bodies are dissimilar, our points of view are even more so.”

The less serious the crime, the shorter the statute of limitations – with no limits for murder. Beyond the law, long-ago cases of sexual predation involving a Bill Cosby or a Harvey Weinstein remain relevant because their behavior continued. But the Kavanaugh claims are murkier and mustier.

Modern politicians, Left and Right, have resisted rivals’ attempts to define them by past sins. Bill Clinton insisted in 1992 that “character is a journey.” Many Democrats eager to win backed him for the next decade, betraying their commitments to believing women in sexual assault cases and to opposing hostile work environments. 

Following Clinton, Republicans suddenly appreciated statutes of limitations. George W. Bush dismissed allegations stemming from his partying days by saying, “When I was young and stupid… I was young and stupid.”

Today, Western society has become sensitized to the lifelong damage sexual abuse frequently causes. We remember wrongdoers’ sins because many victims cannot forget the wrong done to them. Israeli law mostly keeps statutes of limitations of five and 10 years, depending on the severity of the crimes. Some American states are considering abolishing the statute of limitations for rape, following California in 2016. Many states now run the clock on recovered memories of sexual abuse from the moment of the restored recollection, not from when the crime occurred. This accommodation parallels the “discovery rule” in fraud cases, which starts the clock once the injury is exposed – or could have been found reasonably.

While respecting every victim’s anguish, the older the attack, the more egregious or systematic a crime should have to be to justify a public airing today. We need some limits, even on this sensitive subject.

Without some boundaries, the fury usually ends up escalating until it undermines the movement’s legitimacy. In the 1950s, Communists infiltrated American institutions, but the purge surged so aggressively that today most condemn McCarthyism without remembering its original, legitimate, rationale.

This current housecleaning of sexual bullies is long overdue. Our legal tradition must target those most guilty – and those still alive who can defend themselves. Let’s protect the innocent from unfair accusations while protecting the less innocent from stale or unfair charges. Admittedly, such restraint risks shielding some harassers. But it will preserve the credibility of an important movement that has more bad apples to expose – and many more despicable habits to reform, through a broader, more thorough moral awakening.

The writer is the author of the newly released  The Zionist Ideas, an update and expansion of Arthur Hertzberg’s classic anthology The Zionist Idea, published by the Jewish Publication Society. A distinguished scholar of North American history at McGill University, he is the author of 10 books on American history, including  The Age of Clinton: America in the 1990s .  www.zionistideas.com

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