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Facing up to historical injustice while protecting due process rights for today’s accused – the irreconcilable conflict at the heart of #BelieveTheVictim and Westminster’s escalating sexual harassment and assault scandal

Scottish Tory leader Ruth Davidson was quite correct when she likened the torrent of sexual harassment and assault claim now roiling Westminster to a dam having suddenly burst. Just as the Harvey Weinstein scandal led to allegations against numerous other Hollywood A-listers and power players, so the cracks are now spreading across Westminster’s thin ice.

But unfortunately, the release of floodwaters caused by a burst dam has the power to sweep away everything in its path – both those shoddy buildings on weak foundations which deserved to be condemned, but also many structurally strong houses which were up to code, but which the tidal wave refused to spare.

The media (who really ought to be a bit more introspective about the tawdry behaviour and abuse within their own ranks, as is already being uncovered in America) love a simple narrative, and presently even the most serious allegations of rape and sexual abuse by prominent political officials are being reported in the same breath and often under the same headline as relatively minor infractions of the kind which astonishingly brought down former Defence Secretary Sir Michael Fallon, forcing his resignation yesterday.

Naturally, the social justice warriors of Westminster see mandatory re-education as the obvious solution, and now want elected MPs to go through the same condescending “consent workshops” that the NUS likes to inflict on freshmen students.

Charlotte England of Left Foot Forward writes:

Far from accusing all men of being rapists, consent training aims to clarify what consent means and tackle pervasive myths that contribute to rape culture, which is defined as an environment in which prevailing social attitudes normalise or trivialise sexual assault.

According to Green Party deputy leader Amelia Womack there is little understanding in Westminster of the power dynamics at play between male MPs, senior political party figures and other staff like assistants and researchers. Teaching men what is and isn’t appropriate behaviour is therefore imperative.

No, it is not imperative. At this point, even the most sociopathic MP understands the dangerous ambiguity around consent, for reasons of self-preservation if nothing else. Those politicians who continue to step over the line in 2017 do so deliberately, either because they don’t care or simply have no impulse control. And all the consent training in the world won’t fix that. Meanwhile, perfectly decent and law-abiding people will feel ever-more surveilled and curtailed in their behaviour while too many of the real guilty parties continue just as before.

But then this is always the effect of corrosive identity politics – serious social problems and even crimes are too often drowned out because of the disproportionate reaction to lesser behaviour which does not even fall on the same spectrum. If you go to Defcon 1 over some clumsy and ill-advised flirtation at a Westminster Christmas party then you have nowhere left to go when serious allegations involving rape or abuse of power come into play. Each incident becomes just another indistinguishable piece in the “rape culture” jigsaw puzzle and it becomes that much harder to focus on the real victims and perpetrators.

The difficulty with the more minor allegations which are now emerging in Westminster politics and elsewhere is that the outrage at (and de facto punishment of) the alleged offender (public shaming, terminating of careers, ending of livelihoods) is more a reaction to the general trend or cumulative scandal than the individual sin.

If a town finds itself in the grip of a serious crime wave then public anger and demands for something to be done are quite understandable, but is it right for the same ire and punishment to come raining down on the one-time teenage petty shoplifter as befits the man who makes a career of kicking down front doors and making off with the family jewels? Surely not. But our justified anger at decades of genuine sexual harassment and abuses of power is threatening to bleed over into other realms – types of behaviour which range from inappropriate to pitiable – which could have grave implications for how we live and work together (and even court one another) in future.

Grazing a colleague’s knee while making an ambiguous comment over dinner isn’t great (and in fact becomes absolutely wrong when a professional power imbalance exists), but the reason that such low-level behaviour can now prompt the resignation of people such as former Michael Fallon is because of a wider, understandable revulsion at far more serious offences such as those allegedly committed by Harvey Weinstein and other prominent people. The delusional middle-aged, middle-ranking male politico who wrongly mistakes the professional attention of a female journalist for a romantic interest is to be slapped down and probably also pitied, absolutely. But do we really need to turn every such incident into the Dreyfus affair in terms of notoriety?

The pendulum has swung from legitimately bad people getting away with patterns of tawdry behaviour and abuse of power for decades while their victims suffered grievous harm toward fundamentally decent people now being at risk of having their lives destroyed over ambiguous, misinterpreted behaviour or even unfounded malicious allegations. If there was a middle ground anywhere here, it has certainly been skipped over in our reaction to this post-Weinstein torrent of accusations.

While we are right to be disgusted at the world of overt sexism, sexual harassment and abuse which is slowly, painfully being consigned to history, we also have a duty to consider what kind of world we want to create in its place. If we truly want to go down a road where every alleged victim is believed and punishment meted out without due process or any threshold for evidence then we will midwife a brave new world where any public career and reputation can be ruined by a single malicious or disputed allegation. This may soon prompt concerned individuals to hedge against the risk of being brought down by false charges, meaning that every single personal interaction must be witnessed, every woman or vulnerable man permanently chaperoned and everybody permanently surveilled for their own safety, perhaps in the same manner that many American police forces are now outfitting their officers with body cameras.

But this immediately raises privacy concerns. People were sufficiently unhappy at the potential privacy issues presented by Google glasses that this promising prototype product had to be discontinued before making it to mass market. But the kind of constant surveillance required to provide sufficient personal insurance against a formalised “believe the accuser” culture – where the concept of “innocent until proven guilty” is abandoned – makes Google glasses seem tame by comparison.

If we are to avoid going down this extreme road then we at least need to set clearer rules about workplace interactions, so as to remove the ambiguities which lead to the “grey area” where many disputed events currently fall. We will need draconian rules prohibiting any romantic or sexual relations with coworkers that might seem more appropriate to the military than office-based professional work environments. There will need to be a blanket ban on any such relations, with the penalty for any transgression being instant termination regardless of whether or not the the encounter or relationship in question is consensual. Human Resources departments of firms large and small will need to staff up in order to carry out the inquisitorial new role assigned to them. If your parents met while working together, they must become the last generation which ever does so.

And if this seems excessive them we must step back from the brink and think again about whether casually discarding the time-honoured principle of “innocent until proven guilty” is a step that we are willing to take, particularly given the grave ramifications and precedent that doing so may set. Do these new rules apply only to accusations where there is a power imbalance (such as in the workplace) or will we apply them to purely social interactions between equals, too? How do we define “equals”? Will there be any statute of limitations on historic allegations? Will there be any evidentiary standard whatsoever? How will this new reality dovetail with existing laws governing libel and defamation, or to one’s ability to bring civil suit against an accuser for loss of future career earnings?

We must also ask ourselves how much collateral damage we are willing to accept in our effort to make right past wrongs. There are many valid and totally understandable reasons why a victim of abuse or harassment twenty years ago may have kept quiet to this day, but it is also plainly the case that any form of proof in terms of DNA, CCTV footage or retained correspondence is much less likely to exist, in which case it becomes one person’s word against another’s. We then have to decide to what extent we are willing to atone for historical societal sins by lowering the evidentiary standard and always believing the victim when every further move in that direction increases the likelihood of present-day injustices.

Do two wrongs make a right? Or is there a point where we will have to admit that justice for some historical alleged incidents will simply never be possible? We cannot escape this choice. We may wish that it did not exist, and we may pretend that some mythical alternative exists, a solution where proof for past allegations can always be found, victims always believed and offenders always correctly identified and punished. No such magic solution exists; it is a chimera.

At present we are in danger from swinging from one extreme to another, from victims being outrageously shamed and silenced to being unquestioningly believed without even cursory verification; from no consequences for serial perpetrators to draconian summary justice regardless of guilt. The danger is particularly acute as we suffer under a weak government with the weakest of leaders, a prime minister with non-existent decision-making abilities, who can’t afford any more missteps and is therefore prone to making up policy on the stop to appease whoever happens to be shouting the loudest.

#BelieveTheVictim? There is a valid debate to be had here, with serious arguments on both sides – the “always believe” side putting the emphasis on compensating for a history of past injustices and the “proof, please” side placing its emphasis on the importance of traditional due process. Ultimately, some kind of fudged compromise is all but guaranteed, pleasing nobody even as it acknowledges a messy reality.

Personally, while I lean more towards the “proof, please” side I acknowledge that simply telling accusers that nothing can be done to pursue their historic complaints without documentary evidence is often untenable, and that the rights and presumption of innocence which should always accompany a private citizen do not always fully carry over when the accused is in elected office or otherwise occupies a position of public trust.

But my goodness, we ought to stop and think a little more carefully before attempting a quick fix to a month’s worth of disturbing headlines by overturning centuries of precedent.

 

UPDATE – 3 November:

For what it’s worth, I think Ayesha Hazarika does a good job of explaining the kind of non-draconian, common sense solutions which we should be looking at here, for the Spectator:

But the silver bullet is behaviour. You can have all the Human Resources and complaints systems you like, but until MPs, and senior staffers, understand that their basic behaviour to junior women and men has got to change then I’m afraid the needle will not move. And it’s not actually that difficult. I would hope most people could work it out without the need for a cringey manual but here’s a few helpful tips. When you’re the boss, don’t fondle, grope, cup or lunge at anyone and as a general rule don’t harass people for sex via the oh so clever ruse of late night drinks to ‘help them with their career’. And give yourself a reality check: they’re not inviting it and they’re really not into you. At all. Especially if you’re a 58-year-old man who’s seen better days and they’re someone thirty years your junior who either works for you, needs a job or an interview. Ask yourself this critical question: are you abusing your position to get in someone’s pants? And if all that fails, ask yourself how you would feel if you get caught.

Politicians love lording it over the rest of society about how we behave and how we should conduct ourselves in the workplace. It’s time they cleaned up their act – and it’s really not that hard.

Absolutely. A cultural change which ends this “come out with me for late night drinks to discuss your career (wink, wink)” practice should be encouraged, because it is where professional power imbalances exist that the worst serial offenders always lurk.

 

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