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Her Right to Speak Against Her Reputation: How Courts Around the World Get It Wrong | Freedom of expression

A woman tweets on social media that she is an abuse survivor, using the hashtag #MeToo. She does not name the alleged attacker but he is suing her anyway.

A woman speaks in a safe private space of survivors of being raped. She tells the group that her ex-boyfriend raped her. Information is leaked. He takes his ex-girlfriend to court and gets a gag order which means she can never tell anyone about the rape again. The judge finds her guilty of “psychological violence” and harassment against him.

The director of a shelter for victims of domestic violence is convicted of defaming a man who accused her of kidnapping his wife and child after they fled to his shelter.

Amber Heard writes in The Washington Post to advocate for better laws to protect survivors and draws on her own experience as a survivor. A British judge finds her a survivor in a decision based on detailed corroborating evidence, but she loses a defamation case on the same facts in the United States before a jury, which orders her to pay her $15 million ex-husband.

In each of these cases around the world, the law has failed to adequately protect women’s right to speak out.

As Lady Justice, with her scales and blindfold, reminds us, the law is a constant balancing act, weighing interests and rights to achieve a just outcome. Regarding free speech on gender-based violence, she weighs her right to privacy and her reputation against her right to free speech and the general public interest in reporting this speech. Yet courts around the world too often get this balance wrong. This has the effect of silencing women and silencing the discourses needed to end violence against women. Victims and survivors of abuse are increasingly demanding that the courts respect his right to freedom of expression and stop privileging his right to reputation and privacy.

Through our work as human rights lawyers, we have become convinced that we must reclaim freedom of expression from a feminist perspective. We would like to make it clear that talking about gender-based violence, in the medium of your choice, is a human right, protected not only by the right to freedom of expression, but also by the right to equality and the right to to be free from violence. We believe these rights must also be placed in the balance of Lady Justice to ensure that her right to free speech is better protected in our courts so that we can end gender-based violence.

Jennifer Robinson and Keina Yoshida, co-authors of How Many More Women?
Jennifer Robinson and Keina Yoshida, human rights lawyers and co-authors of How Many More Women? Photography: Kate Peters

But what about his right to the presumption of innocence? What about his right to a fair trial? As any of our fellow criminal lawyers will tell you, when a woman goes to the police to report a burglar breaking into a house and stealing an iPhone, she’s believed. But once she mentions sexual assault, a cloud of suspicion descends. In the wake of MeToo, where women choose to speak to the media or post online rather than go to the police, even more questions arise. Why didn’t she report it to the police? What if she was lying? What if she ruined her reputation and her career with a false allegation? Shouldn’t he be entitled to a fair trial, rather than a trial by the media?

In the opening essay of The Right to Sex titled “A Conspiracy Against Men”, Amia Srinivasan, an Oxford philosophy professor and essayist, explains that in the UK only “0.23% of reports of rape led to a false arrest, and only 0.07 % of reports of rape led to the false accusation of a man”. with rape”. Srinivasan concludes that “a false accusation of rape, like a plane crash, is an objectively unusual event that looms large in the public imagination.” She also explains that the myth of the false accusation of rape is “a predominantly wealthy white male concern.”

Nonetheless, this myth – that women make false allegations of rape and abuse – is enjoying a resurgence alongside other regressive forces that threaten to undermine decades of feminist activism and legal progress on women’s human rights. , gender equality and LGBTQI+ rights. Right-wing authoritarian figures have built platforms arguing that feminism and feminist activism have made gains at the expense of men and that MeToo has been an overcorrection. Some have described feminist reforms as “backlash against masculinity” and “reverse discrimination.” Some argue that domestic violence perpetrated by women against men is underreported and overlooked in media narratives. Some argue that public allegations of gender-based violence undermine the presumption of innocence, a fundamental principle of justice.

The debates following MeToo have not been about whether the alleged perpetrators can be named in court (they clearly can be), but rather whether the newspapers and survivors can name those allegedly guilty of abuse online or in newspaper articles. before no legal proceedings have been initiated. Many have argued that this amounts to a “trial by the media” and “violates the presumption of innocence”.

Men’s rights groups have argued that naming men online in relation to allegations of sexual assault, rape or abuse violates the presumption of innocence. They even claimed that online movements such as #IBelieveHer (or #YoTeCreo in Spanish) violate this legal presumption. This is a fundamental misunderstanding of the principle. As Srinivasan explains, this is a “category error”, since “the presumption of innocence does not tell us what to believe. It tells us how guilt is to be established by law: that is, by a process that deliberately favors the accused. She explains that the believing woman therefore operates “as a corrective norm, a gesture of support towards those people – women – whom the law tends to treat as if they are lying”.

Freedom of speech or expression is a fundamental human right and the cornerstone of a democratic society. International human rights law makes it clear that freedom of expression can only be subject to such restrictions as are necessary in a democratic society – and this includes “respect for the rights or reputations of others”. Human rights tribunals have explained that freedom of speech also allows for a degree of exaggeration or even provocation – and speech that can be offensive. In other words, freedom of expression should be the starting point, and it should only be limited by defamation and privacy laws where strictly necessary.

Freedom of expression also protects the right of the press to disseminate information and ideas that are in the public interest; the public has the right to receive this information. MeToo’s allegations and reporting on powerful and wealthy individuals such as Harvey Weinstein, R Kelly and Jeffrey Epstein underscored the importance of such reporting and its role in “shaking the tree” as more and more women demonstrate after seeing other women speak out. Public interest stories like this have warned and protected other women, and led to criminal prosecutions and justice for survivors.

In balancing his right to reputation and his right to freedom of expression, there is an important question that we believe the courts too often overlook: whether the comment contributed to a debate of public interest. In other words, the larger context is crucial. There is a huge public interest in having women speak out about violence. Courts need to place greater emphasis on the broader context of violence against women in society and the public interest in its discourse on this subject.

Women must be able to express themselves to assert their civil and political rights, participate in political life and public debate, but also advocate for gender equality and denounce violence and abuse.

In recent years, the United Nations has reminded states and governments that the human right of women to live a “life free from gender-based violence is inseparable and interdependent with other human rights, including…freedom of expression, movement, participation, assembly and association. ”. There is also growing recognition that freedom of expression is a matter of equality. The United Nations and regional human rights bodies have recognized that every woman has the right to the free and full exercise of her civil, political, economic, social and cultural rights, including freedom of expression, and they recognize that violence against women prevents and nullifies the exercise of these rights. Yet too often we see courts failing to recognize a woman’s right to self-expression, her right to equality and protection from violence, and the broader context of the need for protection.

So how can we free his word? How can we ensure that victims and survivors can come forward without fear of prosecution and silence? How can we ensure that the law is balanced and fair, that it protects the presumption of innocence, privacy and reputation while respecting the rights of women to live a life free from violence? How can we ensure that women can afford to defend their freedom of expression? What damages should a survivor get for being sued and silenced? Shouldn’t women be compensated for the years of silence and the stress of the procedures they face?

Cover of How Many More Women?  by Jennifer Robinson and Keina Yoshida

These are just some of the questions we think we all need to start asking – and our legislators need to start debating. Many women have broken the silence and faced a brutal backlash – a backlash that plays out on the internet, in the media and through the courts. But we have also seen how women are organising, campaigning, advocating and fighting back. We hope their strategies and stories inspire more women to see that they are not alone and have options. A legal change is possible. And we have to fight.

Because if we don’t, how many more women will be silenced?


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