Imagine spending more than 300 days in a 6-by-9-foot cell with only a concrete bed and a toilet, lacking any natural light. Imagine being fed throughout those long months on a diet of grisly prison food. Imagine, furthermore, being repeatedly woken up during the night, a form of sleep deprivation sometimes classified as torture.
What kind of crime would merit such punishment? Certainly not shoplifting or vandalism. Something more serious, you might think. Armed robbery, perhaps.
This has been the treatment suffered by Ghislaine Maxwell, who was arrested in New Hampshire last year and charged with engaging in sex trafficking on Jeffrey Epstein’s behalf but who is still a pretrial detainee. There is no question that she has been accused of unspeakable horrors. But, unless and until a court finds that she is guilty, she is a citizen with the same rights as anyone else.
In theory, we all sign up to the principle of “innocent until proven guilty.” In practice, we tend to enforce it patchily and capriciously. We can be especially brutal about assuming guilt when the accused is unpopular or when the supposed crime is especially disgusting or involves some aspect of identity politics. In such cases, a presumption of wrongdoing seeps into the media coverage and even, to a degree, into the criminal justice system.
Maxwell ticks all the wrong boxes. In 1991, her father, the British publishing tycoon and sometime Labour MP, Robert Maxwell, plunged to his death from the deck of his yacht, the Lady Ghislaine. It soon emerged that he had plundered his employees’ pension funds to prop up parts of his business empire. Thirty years on, fairly or not, his name is a byword for looting and corruption.
The crimes of which his youngest child stands charged are about as monstrous as can be imagined. She is accused of being the woman who made Epstein’s depravity possible, the woman who groomed underage girls for him. But accusations do not become more plausible simply because they are unusually revolting or lurid.
I choose Maxwell not because I have any inside knowledge of her case — I have never had any dealings with her, and she may, for all I know, be as wicked as is claimed — but precisely because she is the kind of person whom the presumption of innocence is designed to protect. If she were from a poor, marginalized community, she would have her defenders. If she were a detainee in Guantanamo, people would sign petitions in her support. But she is in a category almost guaranteed to attract condemnation: a high-living socialite with an unpopular surname who stands accused of a crime that our age, even more than most, considers diabolical, namely abusing her power over young women.
The #MeToo movement has form when it comes to reversing the burden of proof. But, in this case, it is not simply the court of public opinion that is acting as if a guilty verdict had already been reached; it is the real courts.
Why confine someone in this way when they are still on remand? Why keep waking them up through the night so that their health deteriorates? I suspect the answer has to do with Epstein’s death in custody. The authorities simply can’t afford to take any risks. Not only have they denied Maxwell bail, despite her surrendering her passport and her foreign nationality in an attempt to demonstrate that she had no intention of fleeing. They are interrupting her sleep because they fear she might self-harm. It is understandable, I suppose. But treating a prisoner differently simply because of what a different prisoner has done violates the principle of equality before the law.
There is a Hollywood version of human rights in which the accused are always likable, vulnerable, and guiltless. Real life is not like that. Sometimes, the people who most need protection from persecution have brought the persecution on themselves. Sometimes, those who are suffering from the abuse of power are not especially admirable figures.
This might sound like a Civics 101 class, but it bears repeating. We often struggle to accept that process matters more than outcome. Look at the different way in which commentators responded to demonstrations during the lockdown, depending on whether the protesters were for Black Lives Matter or simply against the lockdown. In such situations, our first question is not, “What do the rules say?” but, “Are these my kind of people?”
Yet the rule of law depends on total impartiality. Bad people — we might even say bad people in particular — deserve justice. The moment they stop getting it, we open the door to arbitrary government.
