Maxwell’s Conviction, A Step On A Slippery Slide?

The jury returned its verdict, guilty on five of six counts including sex trafficking. Ghislaine Maxwell no longer wears the presumption of innocence. But her conviction was fairly unusual. It wasn’t, mostly, about what she did for herself, but what she did for Jeffrey Epstein. She was his proxy to the public. To the jury, the only person before them was Maxwell, and they presumably did their job in good faith.

The allegations against Maxwell were unusual as well. Most are not wealthy, have houses around the world and fly to them in private jets. Most do not hobnob with the rich, famous and Dersh. Most do not have a socialite facilitating a stream of young women for sexual pleasure. Does that make the Maxwell conviction a one-off case, or will she become the face of enablers everywhere who, like Maxwell, can be blamed?

Ghislaine Maxwell’s conviction for recruiting young girls to serve Jeffrey Epstein’s sexual desires set a marker: Enablers are not safe from criminal prosecution. In that sense, her conviction was an important first-of-its-kind moment in the #MeToo era. But real progress still demands a reckoning with an uncomfortable truth. In the world of wealth and privilege, most enablers are beyond the reach of criminal law.

Maxwell, not guilty, was no mere “enabler,” and to cast her as one is to play a dangerous rhetorical trick. Sure, lots of people cater to the rich and powerful, hoping some of that filthy lucre will fall out of their back pocket into their grubby little hands. Or maybe they, in a sea of thousands of ingénues, will be cast in that starring role that makes them famous and adored. Harvey Weinstein didn’t get women because he was good looking.

But then, these enablers didn’t go out and recruit women. They didn’t train them, dress them, become their substitute mother and nursemaid to develop a level of trust and reliance that enabled Epstein to have his way. But then, these enablers might well have heard or seen something that clued them in to the fact that something fishy was going on.

But we should not be blind to the myriad ways of enabling that do not rise to the level of a crime. They are the ordinary acts of ordinary people that, however intentioned, combine to protect abusers — particularly men with status, wealth and privilege.

In the case of Mr. Cosby, for instance, David Carr, then a media columnist for The Times, included himself on a list of those in the media who were in the know but didn’t pursue it. “I was one of those who looked away,” he wrote. He recalled interviewing Mr. Cosby in 2011 for an airline magazine “and never found the space or the time to ask him why so many women had accused him of drugging and then assaulting them.” Mr. Carr was hardly an aberration. “No one wanted to disturb the Natural Order of Things,” he explained.

Putting aside the fact that Cosby’s conviction has been reversed, as Northwestern lawprof Deborah Tuerkheimer is no doubt aware, her reference to Carr is still bizarre and curious. Carr offered a costless confession of complicity, the sort that shows he’s now one of the good guys have recognized the error of his ways, repenting and affirming his allyship with the oppressed. But what did he do? He heard rumors? He knew about the stories? He didn’t procure anyone for Cosby. He wasn’t physically present as anything untoward allegedly happened. He never touched one of Cosby’s “dates” breasts. He was nothing like Maxwell.

Of course, a failure or an unwillingness to disrupt the status quo is not a crime. That is as it should be. But it is also why the problem of cultural complicity will not be solved by criminal law alone.

It’s unclear here where Tuerkheimer is drawing the line of “that is as it should be.” Perhaps she means hearing third-hand rumors of sexual impropriety isn’t close enough to turn an omission, the failure to act to prevent conduct about which a person has no actual knowledge, into a crime. But even if “that is at it should be,” what is she pushing as the solution for “the problem of cultural complicity” and needs to be solved beyond the realm of criminal law “alone”?

The rest of us should not be left with an undue sense of complacency. Impunity for abusers is given collectively, and it lies mostly beyond the law. Even more difficult than prosecuting the worst enablers is confronting the complicity we share.

The #MeToo movement has shed light on the interlocking relationships that protect sexual predators. By speaking up, victims have sought to hold even the most powerful men to account. In the same vein, we can all do our part. If people intervene when they see or suspect abuse, this culture of complicity surrounding predators will begin to unravel. And that will amount to meaningful progress.

What is she suggesting? That the #MeToo movement’s inquisitorial mechanism, irrefutable accusation by rumor or on social media be close enough to punish? That merely hearing a rumor is good enough to accuse, to snitch, to attack, to be attacked for failure to act? That the Uber driver, the restaurant waiter, the elevator operator or the newspaper reporter be deputized to intervene? Must they call the cops or physically take out some guy when the person he’s with looks too young or uncomfortable?

Because if he doesn’t, and he lets it happen without intervening, then he too is Ghislaine Maxwell somewhere down the slippery slope that started with facilitator and ended with a duty to be on constant guard, to search, for any whiff of potential impropriety or you’re culturally complicit and, if not as guilty as Epstein, as guilty as Maxwell.

16 thoughts on “Maxwell’s Conviction, A Step On A Slippery Slide?

  1. Elpey P.

    “Either you are with us, or you are with the terrorists” has a much better ring to it than “Either you are with us, or you are with the wrongfully accused.”

  2. Jeffrey Gamso

    “[T]he problem of cultural complicity will not be solved by criminal law alone.”

    Sure enough, whatever “cultural complicity” is.. Criminal law is not just a blunt tool, it’s a worthless tool for changing culture. Hard as we keep trying, criminalizing what offends – what offends me or you or they (whoever they are) won’t stop offense.


    1. L. Phillips

      While carefully skirting the precipice into a rabbit hole labeled “rehabilitation” may I offer twenty years of gathering up the same people and tossing them into the same system over and over in support of Mr. Gamso’s perception that criminal law is “. . . a worthless tool for changing culture.”

  3. B. McLeod

    For centuries, young women have hooked up with the wealthy to get money and nice things they want. The #MeToo new Victorianism is not going to wipe it out.

  4. Pedantic Grammar Police

    You silly lawyers just don’t get it. All bad things should be outlawed, and good things should be legally required. I and the people who agree with me know what is bad and what is good, so the only moral solution is to put us in charge by any means necessary.

  5. Dan J

    “If you see something, say something or we will put you in jail too” is probably too long to put on cool posters.

  6. Karl S

    As they say in sports talk radio, first time long time….

    A step off a slippery slope made of ice while wearing freshly waxed skis. Apparently in order to avoid “cultural complicity” and as part of our eternal vigilance in such matters, we must confront the target(s) of any rumors and gossip and also report them to the #Metoo authorities for further action. Failure to do so will require us to make a full public confession of our sins and if they take pity on us we will just be labeled enablers rather than thrown in jail. Good luck folks!

  7. Rob McMillin

    “Civilization, in fact, grows more maudlin and hysterical; especially under democracy it tends to degenerate into a mere combat of crazes…” — H.L. Mencken

  8. Jake

    Ghislaine Maxwell is a convicted sex trafficker of minors. Not an enabler. Not a scapegoat. She pimped children to pedophiles. If her conviction is a slippery slope, stand back because I’ve got a few gallons of olive oil I’d like to pour out.

        1. Miles

          So that “sex trafficking of minors” conviction with a stern tongue-lashing at sentence to never do it again. Your capacity for bullshit is awesome.

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