I remember learning in my Securities Regulation class in law school that, in securities fraud cases, securing a conviction or civil penalty against a company was somewhat beside the point.  Simply bringing accusations or filing a complaint against the company was enough to tank the company’s stock, regardless of whether the allegations were true.  The ability to secure this victory without having to prove anything armed prosecutors with a dangerous power, I thought.

I am reminded of this dynamic again after watching Beth Stelling’s Netflix comedy special.  After viewing her very funny, clearly feminist, totally fresh routine, I googled her.  On the first page of search results are her accusations against her ex-boyfriend, fellow comedian Cale Hartmann, of physical and emotional abuse and rape.   Stelling never names Hartmann, but her partner, comedian Sam Morril, outed him on Twitter the day after her Instagram accusation.  I saw the pictures of bruises she posted.  I then read Hartmann’s denial of the accusations and listened to another victim, Courtney Pauroso, discuss on a podcast her own alleged rape by Hartmann when she tried to break up with him.  I read the polarized comments about the events.  I researched how rape survivors, not wanting to seek recourse in the criminal justice system (for a variety of reasons) often turn to Internet vigilantism to shame their attackers, and it often works.  The sexual harassment accusations against African American poet Thomas Sayers Ellis were described as a “lynching.”  Cale Hartmann’s career is basically dead, and almost everyone in the comedy community has turned against him.  Neither Stelling nor Pauroso ever filed charges against him, and he has never been prosecuted for a crime.

I want to use this space, and this case, to discuss the extremely complex issue of Internet vigilantism in sexual assault and harassment cases – both the propriety of using the medium and how the responses to it reveal defects in our ability to discuss nuanced issues on the Internet.  I have mixed feelings about most of this and simply want to open a discussion on the topic.  All comments are welcome, but please be respectful, as these events involve real human beings, not simply Internet avatars.

Most importantly, Stelling and Pauroso have a First Amendment right to reveal the details of these events from their perspective.  Rape cases involving he said/she said conflicting stories are difficult to prove beyond a reasonable doubt – which is, in my view, as it should be, in order to protect criminal defendants from the state’s massive power to deprive people of liberty.  Without faith in the criminal justice system, survivors may use the Internet to warn others of the rapist’s dangerousness and exact their own form of justice.

Morally, this may be a good middle ground.  Rape cases involving partners are especially complicated.  Our definitions of consent are evolving.   The elements of what constitutes the crime of rape vary somewhat from state to state.  Especially in cases where the alleged victim still loves her attacker and never actually “fought back,” as Pauroso said she never did (she was crying and said she didn’t want to have sex, but then just stopped being a participant), the victim may think that criminal charges seem too punitive.  Stelling claimed she never wanted revenge on Hartmann, she just wanted to be able to speak her truth, because successful comedy requires honesty.  Perhaps the Internet, with its ability to seriously injure someone’s livelihood and reputation, is a good middle ground for cases that are nuanced and complicated but still terrible, as sexual assault cases can sometimes be.

That said, I have real misgivings about this practice.  The public quickly galvanized against Hartmann, and the media reported the story in some misleading ways.  Articles were quick to note that Stelling never identified her accuser, but many neglect to mention that her partner identified him the very next day (likely with her permission).  The media also said another victim, Pauroso, came forward after Hartmann’s denial, but articles did not note that Pauroso and Stelling coordinated the reveal of Stelling’s Instagram accusation ahead of time.  Although Pauroso never warned Stelling (the two knew each other from the comedy scene) that she was dating a rapist, the two shared stories afterwards before coming forward.

This chain of events is more troubling because, according to research, our memory of events distorts more each time we remember an event.  Those memories are affected by someone’s mood as she remembers a story.  If Pauroso and Stelling were sharing stories over months before releasing the details, it raises questions about what actually happened – and how much Hartmann had a reasonable belief that there was actually consent.  Even if there was no actual consent, in many jurisdictions, a reasonable belief in consent means no rape occurred.  Pauroso mentioned that it took a long time for her to acknowledge that a rape happened – perhaps Hartmann was unaware.

I am not claiming that these women are lying.  There are no incentives for them to lie, and women who expose these kinds of stories are subjected to serious Internet criticism in addition to praise.  And, Hartmann also has a voice and can share his own version of events.  But, his career is ruined, and he has little legal recourse.  He can sue Stelling and Pauroso for defamation, but for the same reason it would be difficult to prosecute Hartmann, it would be difficult for him to prove that the women are being dishonest or exaggerating.  And, if he is deemed a public figure (as celebrities often are), he would have to prove that Stelling and Pauroso are recklessly or maliciously lying to win a defamation suit.  These events in particular involve perceptions that may be more nuanced than courts can handle.

Unfortunately, these events may be too nuanced for the public to handle as well.  Responses mostly break down into “these rape charges are fake” or “we fully support Stelling and Pauroso.”  People questioning whether we should vilify Hartmann without much evidence or credibility testing are called victim blamers or entitled, and people supporting the women are deemed knee-jerk, oppressive feminists.  I wonder why we cannot have conversations both condemning Hartmann and asking how much should have been incumbent upon Pauroso to communicate to Hartmann that she was not consenting before she outed Hartmann as a rapist on the Internet?  How much fortitude is required of her, we could ask, without blaming her for what may be a crime.  And how much was incumbent upon Stelling to actually share the details of her story instead of relating vague but very serious accusations?  Why isn’t Stelling angry at Pauroso for not warning her in advance, if what Hartmann did was so serious?  And why, of course, can someone like Hartmann potentially rape two women possibly without thinking he has done anything wrong?

Hartmann denies the “severity of [Stelling’s] accusations,” and perhaps that’s right.  Perhaps he has done something truly, critically wrong, but perhaps it’s not as bad as is being related.  The devil is in the details, and the public doesn’t have enough.  Criminal law is binary – Hartmann is either innocent or guilty – but the Internet’s response is also perhaps too binary.  In the end, I wish this could have become what Stelling perhaps originally intended, a way for all sides to share their thoughts and discuss a complicated issue (Stelling herself describes it as “not simple” when she mentions that she dated Hartmann for months after the abuse and even later “relapsed and contacted him.”).  Relationships happen behind closed doors, with few of us wanting our partners to share intimate details of our worst moments.  None of this should excuse Hartmann for what may be criminal acts, but we should pause and recognize the problems and complexities of Internet vigilantism before serving as judge, jury, and executioner of his reputation and career.  Perhaps Hartmann got exactly the justice he deserves.  Perhaps he deserves far more punishment.  However, I am not sure what the standard of proof should be for Internet convictions.