CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, May 11, 2021

Ferzan on #WeToo

Kimberly Kessler Ferzan (University of Pennsylvania Carey Law School) has posted #WeToo (Florida State University Law Review, forthcoming 2021) on SSRN. Here is the abstract:
 
The #MeToo movement has caused a widespread cultural reckoning over sexual violence, abuse, and harassment. “Me too” was meant to express and symbolize that each individual victim was not alone in their experiences of sexual harm; they added their voice to others who had faced similar injustices. But viewing the #MeToo movement as a collection of singular voices fails to appreciate that the cases that filled our popular discourse were not cases of individual victims coming forward. Rather, case after case involved multiple victims, typically women, accusing single perpetrators. Victims were believed because there was both safety and strength in numbers. The allegations were not by a “me,” but far more frequently by a “we.” The #MeToo movement is the success of #WeToo.

This Article assesses the implications of #WeToo for criminal law.
#WeToo—multiple allegations against individual perpetrators—brings some grounds for hope about the criminal justice system’s treatment of sexual assault. Currently, victims face unwarranted obstacles with respect to police, prosecutors, and juries, but #WeToo may spur better policing, encourage prosecution, and counteract a jury’s credibility discounting of an individual victim’s testimony. However, there are also significant reasons to worry. The rise of #WeToo risks frustrating jury expectations due to a narrative mismatch between the media’s coverage of sexual violence and the typical facts on the ground, the imposition of a de facto corroboration requirement wherein individual victims cannot attain justice unless another person was victimized, and the perversion of fairness commitments due to the accused through permissive joinder rules and sloppy or unjustified evidentiary arguments. This Article grapples with these impacts that #WeToo will have on the criminal justice system, including the effects of #WeToo’s intersection with racial injustices—the over-policing of Black men and under-protection of Black women.

https://lawprofessors.typepad.com/crimprof_blog/2021/05/ferzan-on-wetoo.html

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