Thursday, November 15, 2012

Protecting the Calumniated

When it comes to traveling the highway of moral integrity, the gray areas are always the most interesting to negotiate. When things, after all, are unambiguously right or wrong, it may take a bit of moral muscle to do the right thing (or to resolve not to do the wrong one), but there’s not much fodder for internal debate. What’s to discuss?  If some specific path forward in life is unambiguously wrong or inarguably right, then what would the discussion even be about?  But when a sober, thoughtful person—or when society as a whole—looks at a path leading off in some specific direction and can’t quite say with certainty that it taking it would be right or wrong, that’s when the most interesting ethical discussions really do take place.

I was thinking about this part of moral reality as I contemplated the bizarre—and mercifully brief—side-show regarding poor Elmo that unfolded in the course of this last week.  It wasn’t really about Elmo, of course.  Elmo is a fictitious character on Sesame Street who is only as real as the puppet that depicts him. But the puppeteer whose voice he bears really does exist and his name is Kevin Clash. Clash has been the voice of Elmo for almost three decades, a long time by any standard but an eternity in terms of performers working on single television shows. How many shows have even been on the air for that long?  (Sesame Street, currently in its forty-third season, is the longest-running children’s show ever. Of other children’s shows, only Romper Room ran for more than forty years.  But that show went off the air almost twenty years ago.)  Clash has been enormously successful in his role, having won twenty-three daytime Emmys for his depiction of Elmo, a furry, red-haired, monster with a high, squeaky voice.  There were three other actors who played Elmo before Clash came to the role in 1985.  But this week’s story had nothing to do with his talent as an actor or puppeteer.  Nor does it have anything to do with that insane person who paraded around Central Park last summer decked out in a full-sized Elmo suit spouting anti-Semitic and racist drivel to any who had the misfortune to walk past him and linger long enough to listen.

The short version is that a man came forward anonymously and, speaking through a law firm based in Harrisburg, Pennsylvania, accused Clash of having had sexual relations with him when he was an underage minor.  (In New York, having sexual relations with persons under seventeen years of age constitutes a felony if the other person is over twenty-one. In Pennsylvania, it is a felony for someone over the age of eighteen to have sex with a person under eighteen.  If Clash’s accuser specified where the alleged incident took place, that detail was not made public.)  On Monday, Sesame Worship, the producers of Sesame Street, announced that, in wake of the accusation, Clash was going to take a leave of absence from his job. This was widely reported in the press, the accusation against Clash printed universally by people who had no actual idea whether or not he was guilty. Two days later, on Wednesday, the accuser changed his mind and announced that, after all, he had been an adult when he and Clash had sex. Sesame Workshop quickly put the matter behind them, releasing a statement about how pleased they were that all concerned can move on from what they called, saying the very least, “this unfortunate episode.” Clash himself released a similar statement about how pleased he was that “this painful allegation has been laid to rest.” End of story.

Or is it? Because Elmo is so popular and so widely known, the story was reported all over the world. Clash, who may have not wished for details of his private life to be publicly known to everyone in the universe who reads a newspaper, now joins all sorts of others accused of sex crimes but then not actually convicted of them. Does it matter? It would to me!  Yet the outcome seems peculiar: the man who did nothing now gets to be known across the world—Sesame Street, or some local version of the show, is seen in 140 different countries around the globe—as someone who was once accused of molesting an underage teen, while the man who falsely accused someone of a serious crime (for as-yet-undisclosed reasons, but surely not because he was genuinely wrong about how old he was when he and Clash knew each other) gets his identity shielded by the press so that even after recanting the story the young man’s name has still not been published.  Does that seem right?

I understand all the arguments for the almost universal practice among journalists to protect the identity of people who accuse others of sexual wrongdoing. Surely, they argue (not unreasonably) it will inhibit people from coming forward if they know that the press will publish their names and describe, often in detail, the incidents they are coming forward to report.  And it is equally obvious to me that people who genuinely were the victims of sex crimes should have the right to proceed with their lives without having their names forever linked to crimes they themselves did not perpetrate. Why should a victim pay any price at all for someone else’s wrongdoing? All that makes sense to me. But what of the falsely accused? Does the press do society a favor or a disservice by publishing the names of people who have merely been accused of doing bad things, but who in many cases (like Kevin Clash’s) have yet even to be arrested, let alone tried and found guilty in a court of law.

The Torah unambiguously forbids talebearing and gossiping. The point, sometimes missed by moderns, is that the prohibition does not apply only to lies, but also to the truth. Indeed, it seems especially important to stress the degree to which the Torah prohibits telling stories that put another in an unfavorable light even if the information is fully correct. (There is a slight difference of terminology regarding true and false gossip, but the basic principle is the same: you may neither lie nor tell the truth about another if the statement in question is going to cast the subject of your remark in a bad light.) And yet the same Torah that forbids telling tales about others not only permits but requires public trials, trials in which accusers are invited to come forward and to speak openly and freely about those whom they feel have wronged them. Furthermore, it is considered a mitzvah  to come forward with relevant testimony, even though, technically speaking, the person of whom the witness has come to speak ill has yet to be convicted of anything at all. Also, trials are always to be conducted in the light of day. Indeed, certain specific kinds of cases are to be tried not only in public, but in the city gates—the most public of all places—presumably to dissuade people from risking sinful behavior that will ultimately and publicly ruin their reputations. None of these laws seem overly concerned with the subsequent reputations of the accused and then exonerated.

The Torah is an ancient book and reflects the customs and mores of the ancient world. Our job, therefore, is to allow its legislation to mature in the context of our own moral vision and this, I think, is an instance of the world having changed so drastically so as to require a bit of revised thinking. I believe that journalists have made the right decision to protect the identities of victims even in the absenceof conclusive evidence. But in a world in which internet journalism has made it possible for a false accusation against a well-known celebrity to appear almost simultaneously on the screens of millions upon millions of viewers in every country of the world, it seems wrong to rely on ancient precedent when the possibility exists that someone accused of a heinous crime could be totally innocent of the charge.  That’s why we have trials, after all: to determine the guilt of the accused. And that is precisely what it means for accused persons to benefit from the presumption of innocence, that we do not assume that someone is guilty merely because he or she is accused of a crime.  

Yet, if the accusation turns out to be untrue and the accused becomes the victim and the accuser, the perpetrator, then the damage has already irrevocably been done because the cloak of anonymity cannot retroactively be offered to a falsely accused person. And so the Kevin Clashes of the world are stuck bearing the opprobrium that comes from being identified in the press after having been accused of wrongdoing regardless of  the specific outcome in any particular case. What would be so bad about journalists protecting the identity of someone accused of a terrible crime, and particularly a sex crime, until the police determine that that person should be arrested and the members of a grand jury agree to return an indictment and a trial is conducted and the accused is found guilty beyond a reasonable doubt? Yes, it’s true that freedom of the press is one of the cornerstones of democracy. But does our American democracy really rest on my right to know that some unnamed person dislikes Kevin Clash enough to tell what was apparently a horrific lie about him? If it isn’t true, why do I need to know about it at all? If it’s just a false accusation, how could society not be better off if journalists protected its members from suffering the after-effects of public assaults on their good names rather than ruining people’s reputations based on hearsay?

Kevin Clash himself seems ready to move on and to forget the whole thing. But society should use this incident as an opportunity to revisit the way the press deals with mere allegations that have not even resulted in an arrest…and wonder how the system could be made to take into account the possibility of the accused turning into the victim…not of sexual misconduct, but of calumny. 

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