The Morality of #metoo.

AuthorWoolley, Alice

The forced resignation of Patrick Brown as leader of the Ontario Conservatives raises concerns of fairness and due process--for him and for the women accusing him. Christie Blatchford has castigated the party and other public officials for abandoning the "presumption of innocence", and has highlighted the wrong of ruining a man's reputation based on anonymous allegations. Others agree. Conversely, the Prime Minister reportedly said that women who made allegations of misconduct "must be believed" and Ontario Premier Kathleen Wynne has said "I believe victims when they come forward."

Both those responses strike me as fundamentally deficient. Deficient in two ways. Both require assumptions of truth or falsity with no accounting for the actual allegation made, which defies logic and human experience. My claim as a 2 year old that I had not eaten the candy at the store when my face was covered in licorice was definitely unworthy of belief. But my claim today that I know something about the legal duties of lawyers can probably be accepted. Whether a claim is believable depends on what is being claimed, the circumstances in which it is made and who is making it. Assuming truth or falsity without accounting for those things is certain to result in mistakes, and mistakes with potentially horrible consequences.

Both responses also ignore entirely the point that the duty that each of us has when assessing allegations of wrongdoing depends on who we are and what our judgments mean. A judge in a criminal court can deprive me of my liberty. My employer can deprive me of my job. Judges and employers exercise power granted or constrained by law and the law imposes procedural obligations upon them. A judge or employer must exercise judgment in accordance with what the law requires and mindful of the harm that a wrongful exercise of that judgment can inflict.

That's one of law's great virtues. It creates rules. It tells us the things that we can or can't do to each other (firing people for established cause or with notice--yes; defaming people--no). It gives us processes for adjudicating truth claims, and imposes different evidentiary rules on adjudication depending on the context and consequences (in criminal law proof beyond a reasonable doubt; in civil law proof on the balance of probabilities).

But the law only goes so far (as noted by Liz Guilbault and Mark Dance). The debate here is really a moral one: when we have the power to judge, and our judgments...

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