Enablers gonna enable, credibility discounters gonna discount, and abusers gonna abuse--but abusers can't do it without lots of help.

The Ghislaine Maxwell case, an Albany DA's decision not to charge Andrew Cuomo, the departure at long last of an abusive academic. What do they all have in common? Enabling and enablers.

On December 29, as most readers here will know, Ghislaine Maxwell was convicted of five counts of enabling Jeffrey Epstein, in various ways, to prey upon underage girls for his own sexual satisfaction. She will be sentenced in June, and faces up to 65 years in prison. As she is now 60 years old, even with a lenient sentence (very unlikely) she will probably spend the rest of her life in jail.

The same day, Northwestern University law professor Deborah Tuerkheimer, author of the book “Credible: Why We Doubt Accusers and Protect Abusers,” published a guest essay in the New York Times that should be required reading for us all. In the piece, entitled “Ghislaine Maxwell is Guilty. What Happens Next is Critical,” Tuerkheimer gave us the good news and the bad news about Maxwell’s conviction. The good news: “Enablers are not safe from criminal prosecution.” The bad news: “In the world of wealth and privilege, most enablers are beyond the reach of criminal law.”

But, as Tuerkheimer also explained in her piece, enablers are not restricted to those who procure the girls for pedophiles, or the aides who brought actresses to Harvey Weinstein’s hotel rooms and then walked out and closed the door, knowing what was likely to happen. Enablers are anyone who knows what is going on, or should have known, and stay silent.

They even include journalists. Tuerkheimer cites a 2014 article by the late David Carr in the New York Times, “Calling Out Bill Cosby’s Media Enablers, Including Myself.” In this mea culpa, Carr asks why it took so long for Cosby to be brought to justice, and then answers his own question: “What took so long is that those in the know kept it mostly to themselves.” Carr goes on to name several such enablers, including Cosby biographer Mark Whitaker, Ta-Nehisi Coates (positive article about Cosby in The Atlantic), and Lelefa Sanneh (positive profile in The New Yorker), and himself.

Similar mea culpas, of course, could include all the music critics who wrote about R. Kelly and a host of other celebrities whose abuses were commonly known in various “whisper networks” for many years.

In the case of Jeffrey Epstein, we now know (thanks especially to the reporting of Miami Herald journalist Julie K. Brown) that former U.S. attorney (and Trump Secretary of Labor) Alex Acosta was pivotal to a sweetheart deal that allowed Epstein to continue his abuses, possibly even while he was serving his very light sentence. But despite all the tut-tutting about that scandal, we essentially saw the same kind of thing happen earlier this month, when Albany County DA Davis Soares decided not to prosecute former New York governor Andrew Cuomo for sexual assault.

Just as Acosta enabled Epstein, Soares has clearly, in my view and that of at least one of Cuomo’s alleged victims, Brittany Commisso, enabled Cuomo. The decision, Commisso told the Times Union, “yet again sadly highlights the reason victims are afraid to come forward, especially against people in power.”

It’s worth taking a close look at Soares’s reasoning for not charging Cuomo. Although Commisso says that Cuomo reached under her blouse and groped her breast at the governor’s mansion in December 2020, and New York records indicate that she was indeed there on the day and time she claimed, Soares said his office had “a burden to prove the elements of a crime beyond a reasonable doubt… while we found the complainant in this case cooperative and credible…we have concluded that we cannot meet our burden at trial.”

One potential problem, prosecutors told reporters, was that Commisso had told them that she nervously told Cuomo, “You’re going to get us in trouble” when he groped her. The prosecutors apparently thought this would not play well with a jury, whose members might think that Commisso was complicit with the sexual assault. It does not seem to have occurred to the prosecutors that a jury might understand that when the governor of New York state is sexually assaulting someone, getting on the phone to their lawyer or the media to immediately report it might not be the first reaction of someone in that situation.

In reality, what Soares and his office had decided was that they were not going to even try to meet the burden of beyond a reasonable doubt. Their thinking was consistent with what Tuerkheimer, in her book and in a number of other articles, has called “credibility discounting”—the points that we automatically deduct from a woman’s credibility when she accuses a man of misconduct.

Credibility discounting is enabling, full stop.

As many or most readers of “Words for the Wise” will known, I have worked as a #MeToo reporter for the past six years; the last two of them have been largely taken up with the case of an archaeologist at the University of California, Santa Barbara named Danielle Kurin, whose documented abuses of students—including retaliation, bullying, and enabling of sexual harassment and assault by her ex-husband, also an archaeologist—have become legendary in the scientific community.

Earlier this month, in the wake of yet more questions about Kurin’s ethics and the possibility of even illegal activity, she abruptly resigned the tenured position she fought for so hard and had just been awarded last August. Kurin’s explanation to a local publication that she had left this coveted permanent position to find “a more fulfilling and meaningful job opportunity” is believed by virtually no one, especially since the university declined to confirm or deny that she had been under investigation at the time of her departure (Kurin had already been disciplined for misconduct once before, and placed on leave for three full years.)

Kurin’s resignation gave me the chance to do something I had long planned: Go through the list of her enablers, over nearly a decade, and detail what each of them had done to make her abuses possible. The list included the Chancellor of the university, administrators, attorneys, her famous father who is a powerful scientist, other archaeologists, and even some #MeToo advocates. To keep an abuser going, it would seem, takes a village.

But there was also a village of victims and survivors, each of whom came forward at a different time and with a somewhat different story, even if the stories had a common thread of an academic using her power to have individual complaints dismissed and ignored (with the exception of the Title IX proceeding that forced the university to put her on leave, but which was kept secret so that she could be returned to work to abuse again.)

What we don’t often consider is that, in a “he said, she said” situation, saying that the man should be presumed innocent also means saying that the woman is presumed to be lying…

When I began reading Deborah Tuerkheimer’s work, that I gained a keener understanding of the mechanics of enabling, and how discounting the accounts of individual victims is routinely used to keep abusers in positions of power. One of her earliest pieces on this subject, published in The Guardian and titled “What if only one woman had accused Harvey Weinstein?” made the basic points very well. Tuerkheimer argued that accusers often need to achieve what might be called a critical mass (my words) before they will be taken seriously and anything will be done. In Weinstein’s case, it took allegations from some 40 women before the media and authorities began to take them seriously; in the case of Cosby, at the time of her writing some 58 accusers had come forward (and yet Cosby was eventually released after the Pennsylvania Supreme Court ruled in idiotic fashion that he had been denied “due process.”)

Shortly after her article in The Guardian, Tuerkheimer published a thorough review of her concept of credibility discounting in the December 2017 issue of the University of Pennsylvania Law Review, “Incredible Women: Sexual Violence and the Credibility Discount.” It is open access and I highly recommend it to readers (especially if you do not have the time or money to read the book.) Tuerkheimer argues that victims of rape, sexual assault, and other crimes face “an enduring system of disbelief” when they try to report their experiences or get any kind of justice for what happened to them.

Indeed, all too often those who makes these decisions—as in the Jeffrey Epstein and Andrew Cuomo cases—are men, who often bring to the playing field their own biases and assumptions about high rates of false accusations and the like. But in doing so, they become part of the system of enabling, which I would argue is the larger and broader problem. That is, credibility discounting is a key method by which abusers are allowed to get away with their abuses.

When someone is accused, we often hear it said, “Well, they are innocent until proven guilty,” and that concept is consistent with our folk notions of what justice should be. What we don’t often consider is that, in a “he said, she said” situation, saying that the man should be presumed innocent also means saying that the woman is presumed to be lying, unless she can prove—beyond a “reasonable doubt,” or in a civil case, with a “preponderance of the evidence”—that she is not.

I recommend reading Tuerkheimer on these issues, also because she has some positive suggestions for reforms that would level the playing field and at least reduce the credibility discount accusers face. I will not elaborate on them here.

But for such reforms to be possible, we as a society need to insure that we are not just punishing individual abusers (a rare enough event in any event), but also calling to account the enablers who have successfully gamed the system to either directly aid sexual misconduct, or to look the other way without consequences and protect their own interests rather than doing what is right.

We increasingly recognize the importance of being Good Samaritans when someone is in trouble or distress, and many U.S. states have adopted laws that overrule former archaic common law notions of “no duty to rescue.” In France, where I spent 30 years of my life before returning to the U.S. several years ago, it is illegal not to help someone who is in serious distress, a crime called “non-assistance à personne en danger”—”non assistance to a person in danger.”

We might want to see this principle expanded, at least in civil law, to situations of clear abuse, including sexual harassment and similar forms of misconduct. Eventually, it might even become an integral part of our culture—and help put an end to the Epsteins, Weinsteins, and even the Danielle Kurins.