But what I didn’t foresee—nor, I think, did many of us—was the tsunami of accusations of predatory sexual misconduct levied against various people that followed—including at least one former president of the United States, several prominent actors, producers, directors, authors, photographers, political pundits, and comedians, a candidate for the United States Senate, and a host of lesser-known personalities.
Some of the accusations involve behavior that took place in the distant past, but other charges relate to far more recent times. Some of the charges are vague, but others are very specific and detailed. Some sound just a bit far-fetched, but others sound—at least to my ear—entirely plausible. Given that the presumption of innocence is one of the bedrock values of our justice system, the question I wish to explore today is not related to any of the specific charges anyone has made about anyone else. Nor do I have anything particular to say about the response of any particular police department or any specific public prosecutor to any of these accusations. (Their job, of course, is specifically not to presume guilt in the wake of accusation, but simply to investigate carefully and thoughtfully when one individual accuses another of wrongdoing and then either to charge or not to charge someone with a crime based on the outcome of their investigations.) But I’m more interested in people who have spoken out in public to accuse others of poor behavior without there being any chance at all of an arrest…either because the person accused has died in the interim, because the incident happened so long ago that the statute of limitations for that crime makes indictment a legal impossibility, because there were no witnesses to the alleged crime and no evidence to adduce in a court of law, or—in some cases—because the alleged incident involved behavior that, for all it may be have been loutish or boorish, did not involve the breaking of any actual laws. In cases like that, should people come forward to speak out? Or is that just so much loshon horo, that to say: gossip of the sort that decent people should avoid not only speaking themselves but even listening to. That is the question I’d like to explore this week.
It’s not that easy a question to answer. Our Jewish tradition has an extremely strong animus against talebearing. Scripture itself makes this explicit and rabbinic sources seem never to tire of finding ever more extreme language with which to condemn the intentional spreading of gossip, libel, or calumny outside the legal context. Indeed, there are a whole series of ancient texts that equate gossip with murder! And another set of texts that make explicit the point that the prohibition against gossip applies equally when the report is true and when it is false! So extreme, in fact, is the rabbinic aversion to telling tales in public about other people’s poor behavior that the rabbis imagined that the Torah actually needs formally to permit people to testify in court about other people’s bad behavior…and precisely because testimony in which one citizen speaks out in public about another’s bad behavior would otherwise be forbidden as talebearing and gossip. Nor are these strictures solely concerned with the one doing the talking: the classical sources also make it clear that the prohibition against talebearing involves not only telling damning tales about others, but also listening to them. So making a case against speaking up other than to report misconduct to the police or to give testimony in court would be relatively easy to make.
But, even despite the sources referenced above, the evidence of tradition is nonetheless equivocal and, in fact, there are many instances in which the general prohibition about speaking poorly about others is waived. It is not considered slanderous, for example, for an employer to answer honestly if a former employee has given his or her name to a potential future employer so that the latter can ask the former about the employee’s skills and work ethic, and this is so even if the honest answer to the question asked reflects poorly on the employee. Nor is it prohibited to alert someone to some potential danger even if doing so involves saying something about a third party that under other circumstances would be prohibited as gossip or slander. And, as mentioned above, it is not only not prohibited but legally required that eye-witnesses to wrongdoing step forward to give testimony in court even though this will obviously almost often involve speaking ill of the accused individual.Most crucial for the issue under discussion, the fact that the very verse in the Torah that prohibits talebearing goes on to warn against “standing idly by the blood of another” was taken by the rabbis unequivocally to mean that it is actually forbidden to remain silent when speaking out might prevent harm to some innocent third party. The rabbis understood that wrongdoing, and particularly sexual misconduct, is more reasonably to be taken as a function of character than of opportunity. And, that being the case, it seems reasonable to think of wrongdoing as something in which wrongdoers habitually engage rather than as solitary occurrences that unpredictably occur when weak-willed individuals find themselves just one single time at the malign confluence of opportunity, desire, and recklessness. In my opinion, this is the context in which we should evaluate the rightness or wrongness of coming forward to report on predatory behavior directed against oneself outside the context of making a report to the police or giving testimony in a court of law.
We live in a world of almost unimaginable vulgarity. Indeed, we have all become so inured to profanity, tastelessness, and crudity that we barely notice it any longer. Even principled opposition to such things sound ridiculous to most of us or, at best, schoolmarmish and priggish. Imagine, for example, someone who were simply to refuse to watch movies featuring obscene language, or someone who made the conscious decision not to attend theatrical performances that featured indecently dressed actors or actresses, let alone naked ones. There are such people in the world…but which of us would want to be thought of as the kind of naïve, culturally backwards person so unattuned to the reality of modern culture as actually to be offended by its excesses? Nor do I speak as a beacon of virtue in this regard—I myself go to such shows and see such movies without giving the decision to purchase my ticket even a moment’s thought. Perhaps that’s simply how things are in this world we have constructed for ourselves…but that is also the context in which people feel free to behave in ways that would once have been considered not merely degenerate, but truly debauched. This is not to excuse the behavior of the sexual predators among us—just to observe that all of us together have chosen to create, and then to tolerate, a world in which sexual predators feel free to act, some on the supposition that they will never be caught and others simply because they don’t really see what’s wrong with their behavior. They are the wrongdoers, to be sure. But we, speaking for society itself, have created the stage upon which they have been able to perpetrate their wrongdoing. And when we are done being titillated by the avalanche of detailed accusations we have heard and read over these last few weeks, it would be more than appropriate to consider what we as a society have wrought. And also what we could conceivably do to create a world in which immoral, predatory behavior is not merely against the law, but something ordinary people—men and women alike—consider truly unimaginable.And that brings me back to my initial question. Should people speak up if there is no chance of bringing the people they are accusing of wrongdoing to justice? I think that the question has to turn on the likelihood that a public accusation will rescue future victims. If the accused party, say, is dead—and there is therefore nothing to be gained by the accusation other than besmirching the reputation of someone who cannot defend him or herself—I think it would probably be best simply to remain silent. If there is a reasonable expectation of legal action against an aggressor, then speaking up is not only allowed but requisite. If there is no chance of legal action, however—for example, if the statute of limitations makes an indictment impossible—then the issue has to turn on the possibility of saving future victims from a predator’s grasp by speaking up. If that possibility exists, then victims should come forward even if there is no reasonable expectation of an arrest or a trial, let alone a conviction.