Wednesday, December 7 , 2016, 5:31 am | Fair 45º

 
 
 
 

Susan Estrich: Woody Allen and Dylan Farrow, Sexual Abuse and Rape

I wasn’t going to write about this. It’s a movie I know too well. Matthew Hale, centuries ago, said that “rape ... is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.”

I’ve spent much of my life fighting against the one-sided rules, both formal and informal, intended to make it easier to defend against rape charges and harder to prove them, tho never so guilty. But even so, I know and believe that at the end of the day it’s better to free the guilty than punish the innocent, and that a crime with no witnesses is always going to be hard to prove, and especially when the victim is a child and the events in question happened many years ago, there is no knowing for certain enough.

And then I was inundated with a mountain of misinformation that had me doubting my own instincts and experience.

Is Mia Farrow the kind of mother who would use (abuse) her own daughter, convincing her she had been wronged so awfully simply to get even? Many people have suggested she is. In fact, having now reviewed everything, I can say with certainty that there is absolutely no evidence that is so.

Was Woody Allen cleared of these charges years ago in a full and thorough investigation, only to have the charges unfairly repeated in order to promote his estranged son’s new cable show or to embarrass him at a time when he is being publicly celebrated? Actually, no. Whatever the motive for the new round of publicity, he was not cleared in the earlier investigation; he did not pass a state lie detector test (he refused to take one); Dylan Farrow was not examined by doctors who concluded she was not telling the truth; the prosecutor did have probable cause.

If you want to read the most chilling document in the case, read the 33-page opinion of the judge in the custody case brought by Allen, which recounts the details of who said what when. If you don’t have the stomach for that, read Maureen Orth’s “10 Undeniable Facts” in Vanity Fair. Orth is something of a dinosaur, I suppose. She is a real, true investigate-the-facts and write-what-you-know-not-what-you-think journalist, one of the best, and she has covered the story exhaustively and is nobody’s best friend.

And me? I’m just somebody who’s been in the trenches for 30 years and ultimately can’t keep my mouth shut when a story is mostly being told all wrong by people without Orth’s attention to facts and objectivity, much less any experience in this area.

So let’s be clear: Most instances of abuse, particularly abuse in families, never get prosecuted — and it’s not because the children are lying or because it didn’t happen. It’s because proving these cases is so very difficult, and putting a child through a prosecution that is not likely to result in a conviction is darn near criminal.

As best I can tell, if the decision not to prosecute Allen was the right one, it was so not because anyone who knew anything concluded that Dylan and her mother were lying, but because the trial would have been a nightmare for her, she would have been savaged by defense lawyers, and, as badly scarred as she reportedly was by her childhood, a failed prosecution only would have been worse. In fact, this is precisely what the prosecutor told Orth: that he did have probable cause, but the trial would have been too much for the “child victim” (his phrase), and without her there would be no case.

So he and the judge in the custody case did the best they could by Dylan, given Allen’s “lack of judgment, insight and impulse control” (the judge’s words), protecting her from a painful and fruitless trial and denying her father’s petition for custody and visitation.

Allen lost me when he started taking nude photographs of his children’s teenage sister, behind his girlfriend’s (and her mother’s) back. He may or may not be the world’s greatest filmmaker: not my field to judge. But sexual abuse is my field, and based on my experience, Woody Allen is not guilty, but I certainly wouldn’t find him to be innocent.

My heart goes out to Dylan. Enough said.

Susan Estrich is a best-selling author, the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her or click here to read previous columns. The opinions expressed are her own.

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