Community misconduct disputes are not about facts

mingyuan

In criminal law, the prosecution and the defense each try to establish a timeline — what happened, where, when, who was involved — and thereby determine whether the defendant is actually guilty of a crime.^[1]

Community misconduct disputes are nothing like this.

There is only rarely disagreement over facts, and even when there is, it is not the crux of the matter. Community disputes are not for litigating facts. What they are for^[2] is litigating three things:

The character of the accused
The character of the accuser
The importance of the accusation, in light of points 1 & 2

I think basically all the terrible things that happen in community disputes are a result of this.

When what’s being ruled on is a person — their place in their community, their continued access to resources, their worth as a human being — the situation feels all-or-nothing, and often escalates out of control.

This dynamic:

discourages people from speaking out about their experiences, both because they may be reluctant to ‘ruin the person’s life’ over something non-catastrophic, and because they know that they will be opening themselves up to a punishing level of scrutiny and criticism, and may end up having their own life ruined
allows everyone to avoid actually addressing what happened, when they can instead focus on other evidence about the parties’ characters
puts every accused person (and whoever is on their side) in an extreme defensive stance, which is counterproductive to truth-seeking
similarly puts accusers in an all-or-nothing stance, and may cause accusers to exaggerate their claims, knowing that the bare truth will not be sufficient to indict the entire person
gives rise to both the feelings that ‘Everyone always believes accusations uncritically’ and ‘No one ever takes accusations seriously’

A couple concrete examples:

A community organizer was accused of a whole slew of infringements on basic decency by a dozen different people. The defense brushed off the accusations and built their case around the claim that the accused was an irreplaceable pillar of their community who had done a lot of good things, and kicking him out or punishing him would make everyone worse off.
Similarly, when Brent Dill was initially accused of gross misconduct, the official report on the case “did not mention that there were allegations of abuse” and “largely read like a pro-Brent press release”.

Intracommunity conflicts are generally a horrifying minefield. I think some of the problems arise because of the dynamic named here, and more arise because people don’t explicitly recognize that this is the dynamic — they believe that the conflict will be resolved by some kind of fact-finding mission, or they don’t realize how quickly things can escalate because they don’t understand what’s at stake for the people involved.

My hope is that just pointing out that this is happening might help people approach disputes in a way that ends up being slightly less catastrophic for all. Obviously there’s much more to it, but maybe this can help a little.

^{^}
Yes this is an oversimplification that I learned from media, but it’s one that many people have learned from media, and therefore it’s probably how many people see criminal law.
^{^}
That is, what they actually do, even if this is not how the people involved see them

Thanks for writing this.

I tried thinking about ~6 examples of community misconduct disputes around me, and indeed none of them involved disagreements about "material happenings".

But it also seems to me that the post is lumping together under "disputing the character" two things that are important to distinguish. One is defending/attacking the parties via non-central examples/halo effect. The other is arguing about the person's intentions, or even more broadly, the psychological and other factors that led them to behave the way they did (and sometimes also about what implications this has about how they are likely to behave in the future). Both are involved in community disputes, but it seems to me that "halo defense" is the second line of defense, when one cannot credibly claim to have had good intentions, or has caused too much damage for people to care much about intentions.

discourages people from speaking out about their experiences, both because they may be reluctant to ‘ruin the person’s life’ over something non-catastrophic

Not sure that I remember hearing this sort of explicit discouragement. To the extent that this happens, it seems bad that our culture (or the broader macro-culture it is embedded in) doesn't leave a line of retreat in the form of some "absolution process", which would weaken this pressure. IDK how to do it. Seems hard. But I think "absolution rituals" were somewhat common in pre-modern cultures? (E.g., the biblical parable of the prodigal son.)

Criminal trials work similarly.

Read press releases by prosecutors talking about new cases, or speaking indictments. They often try to character assassinate the defendant, and they try to build up the "victim" when possible.

jumping from press releases by lawyers to how criminal trials work is a jump. Clearly, inside the courtroom could be different from the press releases!

I was a defendant in a highly politicized free speech case and the lawyers on both sides made a couple gestures at character but the judge ignored them. overall the process was razor focused on establishing timelines and facts.

Yes obviously before and after the press releases focused on morality and character, which wasn't really the crux of the outcome.

I was a defendant in a criminal trial and there were many personal attacks. They introduced many pieces of evidence that were irrelevant to whether a crime was committed. The rationale for most was it's relevant to my "intent" but it was clear what they were trying to do.

(I was convicted and the judge overturned it partly for insufficient evidence. Appeal is ongoing so I don't want to get into details. My case was somewhat unusual in that there was no dispute at to the main facts, but it was heavily disputed whether the facts made out the elements of the charges. There's a lot of variance among cases and judges, I'm sure.)

I was also told many times by my lawyers that we had to stay on the judge's good side and we shouldn't make certain valid arguments or demand certain constitutional rights because we'd likely face retaliation from the government or judge. That's a related way in which it's not about the facts or the law.

EDIT/update: i just remembered a key detail of the trial which is that one of the reasons we won was a key prosecution witness (who said things which, to the best of my knowledge, were largely made up) got character-assassinated (the defense found evidence of mob ties) and that's part of why his testimony got thrown out. So character assassination played a role there, just not directly about the defendants.