Allen’s tactics didn’t win him custody or even visitation rights, but his scorched-earth strategy scarred Dylan and deterred Farrow from pressing criminal charges. The custody battle lasted nearly a year. A criminal trial could take even longer and would be yet harder on Dylan and her siblings, especially if their privacy couldn’t be guaranteed. No doubt prospects for a fair criminal trial seemed dim; the challenge of convincing a jury of Allen’s guilt beyond a reasonable doubt, insurmountable.
Celebrities are particularly effective at discouraging victims and witnesses from cooperating with law enforcement and prosecutors in cases involving sex crimes against underage victims. Their testimony is critical to securing a conviction, but the alleged victims and their families are understandably reluctant to weather public scrutiny and a high-profile trial indefinitely and at uncertain cost for an unknown outcome.
Courts haven’t traditionally interpreted civil settlements silencing victims as a means of witness tampering, but they should. If we discourage preemptive or concurrent civil settlements in cases involving potential criminal charges, we can deter alleged celebrity offenders and protect vulnerable victims from being improperly influenced. Those who are wrongfully accused can only benefit from such a move, which would negate any incentive to level false accusations at celebrities to snag civil payoffs.
Intimidation via expert witnesses and media can be curtailed by gag orders. Many judges are rightfully reluctant to impose such orders orders because of expense and exposure, among other concerns. But gag rules should be the default in the handful of celebrity cases involving child welfare or alleged sexual assault that proceed to trial: The interests of media in covering every twitch, whisper, and rumor during legal proceedings in such cases don’t outweigh the interests of justice.
It’s true that gag orders haven’t always been totally effective against celebrities. Look no further than Charlie Sheen, who violated one in his custody case with Brooke Mueller not once but twice in November alone on Twitter. But if star defendants know courts will routinely and aggressively investigate leaks in these trials, the temptation to violate a gag order may lose its appeal.
Last week Dylan Farrow wrote an open letter to the New York Times to say she is still “haunted” by the knowledge that Woody Allen “got away with what he did to [her].” In her words, “sexual abuse claims against the powerful stall more easily.” The victims of these crimes are almost always at an extraordinary disadvantage. But society can do something about that, closing the loopholes celebrities like Michael Jackson, R. Kelly, and Woody Allen have used for more than 20 years.