From the fall of Hollywood’s Harvey Weinstein to the political demise of New York Attorney General Eric Schneiderman, there’s no shortage of sexual abuse allegations against famous men. The MeToo movement has liberated women to talk about long-tolerated misconduct. But it’s also led to whispers about the grey area between improper harassment and criminal assault. And questions about whether it’s now easier for people to get smeared by unproven — or even false— allegations. Today’s cover story is: Shades of Grey.
FitzGibbon: If you’ve got two believable stories, you’ve got— you can take anybody down.
Trevor FitzGibbon claims it happened to him. His story begins in December 2015, when he ran his own progressive PR firm and got a fateful call from his company’s vice president.
FitzGibbon: He said, “You have a problem.” And I said, “What's wrong?” He said, “Well, in the past 48 hours, H.R. has gotten six phone calls all accusing you of sexual harassment.” And my heart kind of fell.
Before that call, FitzGibbon had angered some fellow liberals for his support of Bernie Sanders over Hillary Clinton and for representing clients connected to WikiLeaks. He represented Bradley Manning— who passed classified materials to WikiLeaks. Edward Snowden— the government whistleblower WikiLeaks once helped. The journalist Snowden leaked to: Glenn Greenwald… And he represented WikiLeaks and its founder Julian Assange. The WikiLeaks connection will come into play later. FitzGibbon says after the HR phone call, before he even knew who his accusers were, they had gone to the national press.
FitzGibbon: And it's really interesting to see the Huffington Post because at first they say it was harassment. A few hours later it was assault. And then, that got spun into rape culture.
Inside of 2 weeks— FitzGibbon’s staff had turned on him, his company shut down. With help from feminist lawyer Gloria Allred, three women filed criminal complaints. One of them, attorney Jesselyn Radack, claimed FitzGibbon— “touched her breast” against her will, then days later, when she met up with him at a hotel, raped her.
FitzGibbon: It was 100 percent consensual.
Sharyl: You did have sexual relations with her?
FitzGibbon: Yes but that was 100 percent consensual.
Here’s where shades of grey color the picture. FitzGibbon admits to “inappropriate behavior” toward female employees, and to cheating on his wife with Radack, but nothing criminal. Evidence he gave prosecutors included friendly sexual text messages and photos allegedly sent by Radack before and after the alleged assaults.
FitzGibbon: Text messages, photos that she sent me after the first alleged assault took place. And then afterwards, being very happy.
After reviewing the text messages and conducting a lengthy investigation, prosecutors “declined to file criminal charges.”
Sharyl: So for a year you lived under the cloud of possible prosecution for rape?
Sharyl: And what happened in that timeframe to you?
FitzGibbon: I couldn't defend myself in the press. I was vilified in the national media and on social media and the accusers— and whatever political machine came after me— used it to poison the water to make it almost impossible for me to get work.
Sharyl: You lost your business.
FitzGibbon: I lost the business, lost my home.
Attorney Nicole Smith defends companies against sexual harassment claims and isn’t connected to FitzGibbon’s case. She says the current environment can breed confusion and even false allegations.
Smith: “Me too” movement is phenomenal, but it also is a catchphrase for conduct that really, is every scope of any kind of allegation from a slight that someone might feel that they had been disrespected to actual criminal conduct. So couching all of that conduct in one term is difficult then when you try and unravel individual claims.
Some victims’ advocates say accusers should automatically be believed. The recent conviction of entertainer Bill Cosby for allegations that were 14 years old seemed to make the case. But it’s not always cut and dry.
Sharyl: Are you finding that in this environment of “women should be believed” that there is a downside?
Smith: So often in these cases, I think what we're faced with is it's a “He Said, She Said” thing. There's not a lot of witnesses, if any, ever present. So to say that you're just always going to believe the woman really doesn't get us anywhere.
It may also open the possibility that accusations can be weaponized to smear a target for hidden motives. FitzGibbon began to suspect he was the target of a smear right after it was announced he wouldn’t be charged… yet he was attacked in a national press release.
FitzGibbon: And that press release was a letter signed by 72 national organizations pledging to never hire me or work with me again.
Sharyl: What did you think of when you saw that?
FitzGibbon: It was one of the first times that I realized that something else is at play.
He’d sold his house, was split from his wife and children, including infant twins and was too discredited to find work. FitzGibbon now thinks powerful people may have come after him because of his PR work for enemies of the mainstream Democratic party and the state…including WikiLeaks. In 2016, WikiLeaks published embarrassing insider emails of Hillary Clinton officials and the Democratic National Committee, and WikiLeaks was accused of working with Russia and being pro-Trump. There’s little doubt there are powerful efforts to smear WikiLeaks and its supporters. Government contractors circulated this dossier in 2010, a wide-ranging strategy to combat “The WikiLeaks Threat,” to “sabotage or discredit” WikiLeaks supporters using “social media exploitation” and “disinformation.”
FitzGibbon: It shows the photos and the names of the individuals that were supportive of WikiLeaks or worked with WikiLeaks
Sharyl: And the PR documents specifically discussed going after these people.
FitzGibbon: Ways to discredit to target to smear them.
Several targets were FitzGibbons’ clients. Two were discredited by sex claims alleged in the media but never prosecuted just like FitzGibbon. WikiLeaks’ Assange and a key associate Jacob Appelbaum. With Assange, two women told a journalist that consensual sex with him when he was in Sweden for a speech, turned into rape. A rape investigation hung over his head for seven years—before it was dropped last year. Anonymous accusers started a website to publicly accuse Appelbaum of groping and rape. He was forced out of his job, but also never charged. In the end, a smear campaign can often take advantage of the uncertainty surrounding a case of 'he said she said.' And that’s the problem. FitzGibbon asked a lawyers’ disciplinary body to punish Radack for alleged false allegations. They declined, saying the “question was close” but “The truth about what occurred in private is sometimes hard to prove.” Even if someone isn't ultimately prosecuted, they may find they’re tainted just because this aura of inappropriateness or criminality lingers over them regardless of what the outcome is in the court of law.
Smith: And the costs that they incur, obviously representing themselves in that proceeding.
Sharyl: Did you do any of these things— any of these things that the women said you did?
Fitzgibbon: In regards to being flirtatious?
Sharyl: Anything that they said was inappropriate?
Fitzgibbon: You know, I'll say this. I was accused of assault and I was accused of first degree assault which is rape. And I didn't do any of that.
FitzGibbon has now filed a civil suit against Radack alleging malicious prosecution and defamation. She declined our requests for an interview due to the litigation.