The nature of a pendulum is that it swings back and forth. It has been used many
times as a metaphor for politics, religion, for interpersonal relationships, and virtually any
idea or standard. The problem with the pendulum is that inherent fight to be in the middle
causes it to swing in the opposite direction, so that it rarely stays in the middle. Under the
fear of being called or classified as politically incorrect, we worry that the pendulum may be
traveling in a direction that it will now be at its outer extreme when it comes to sexual
battery, sexual groping, sexual humor and even discourse between the sexes.
As most of you know, we are criminal defense attorneys by nature and training, along
with our passion for the First Amendment. We seldom turn down a case because it is our
belief that even the most reprehensible are entitled to a good defense and one committed to
making sure the State has to prove their burden beyond and to the exclusion of every
reasonable doubt. We have represented people that we dislike and causes that we do not
believe in, just so that the American ideal of Due Process is not just an ideal, but a reality.
In this vein, we have represented those who have been charged with sexual
battery/rape. Some of those that we have represented that have been accused were charged
with sexual molestation on minors. During this time of representation, we talked and took
depositions of numerous child advocates. Some express that one third of all children are
sexually molested in some type of fashion. When we asked how that figure was arrived at,
the answer was, “statistically, three percent of children report being sexually molested.
Therefore, we know that means that one third of children have been”. This extrapolation
always seemed odd to us.
We then would be confronted by these children advocates, that “children never lie
when it comes to sexual exploitation or sexual offenses against them”. Again, we wondered
about how that blanket statement could be made. Of course, in numerous cases we found
that not to be true. Not necessarily that the child was lying intentionally, but we discovered
in some cases that a spouse planted these thoughts in the child’s head as part of a divorce
proceeding or custody battle. In other cases, we encountered “false memory” where adults
would remember about being molested by their parents when they were young. This, of
course, was fostered by psychologists who explained to these young adults that this must be
the root of their problems. Later on, a number of these young adults expressed to us that
these memories actually were not theirs, and they did not know what they could be thinking
at the time that they made these allegations.
All of this has to do with one point. That is, that simply just because someone makes
an allegation of some sexual impropriety, does not mean that it is true. That is why we were
dumbfounded the other night while watching Bill Maher. A guest of his show was Chelsea
Handler, apparently a comedian, although we are not that familiar with her. During the
discussion about the Senate candidate from Alabama, Roy Moore, and the Senator from
Minnesota, Al Franken, she expressed something to the effect that she believes any woman
that says she was sexually harassed or molested. The converse of that would be, then, she
does not believe any man who denies being a molester or a harasser.
There is no doubt in our minds that many women have been sexually harassed and
molested that have not come forward. There is no doubt in our minds that many women
lived in fear of breaking that silence. But there equally is no doubt in our minds that there
are many men who have been accused and will be accused, who did not commit the acts that
they are being accused of.
What makes someone motivated to accuse another? Obviously, a person actually did
what they are being accused of would be number 1. But both Bill Clinton and Donald Trump
would tell you that the motivation is political at times. Donald Trump’s wife, Ivana, accused
him of rape during their divorce proceedings. There have been countless divorce
proceedings in which this allegation has been made. This allegation is also made during
child custody proceedings. Two different people having a different perception of what
occurred is simply a fact of life and can be a cause for one person’s denial, while the other
At no time should any allegation of sexual harassment or sexual abuse not be taken
seriously. However, never should one person’s word against another be tantamount to guilt.
Rather, each and every incident must be viewed by itself. To simply believe that sexual
assault or sexual harassment occurred because a woman claim’s it would take that pendulum
and swing it so far to one side that in essence men would never be able to defend themselves
and would always be seen as the evil party.
In the same vein, we must not lose sight of us as human beings. Joking around,
fooling around and even good natured teasing are all part of the human experience.
Sometimes those actions go a little bit too far and one party is offended. An apology is
appropriate at that time, but the person who needs to do the apologizing should not be
dehumanized. Good people sometimes go a little bit too far and that does not take away their
goodness. Sometimes, we feel that we are more familiar with a person than that person
believes that we are. What might be acceptable to a best friend, might not be acceptable to
a mere acquaintance. Sometimes to one of us, we are good friends, while to the other person,
we are just acquaintances.
Our fear is that the pendulum is swinging so far to protect women that we will lose
sight of who we are as human beings. Certainly, no woman should be sexually harassed and
no woman should be sexually attacked. However, we need to define our terms and make sure
that our terms are not so broad that we lose sight of normal human interaction and that we
no longer can take a joke.