What happens when you abandon the rule of law?

On August 25th I attended the ByLine Festival which has as its tag the phrase ‘dance, discuss, laugh and change the world’. I can’t comment as to the first three as for at least two of them I am temperamentally or physically unsuited. However, ‘changing the world’ is a bold ambition and its worth unpicking what kind of ‘changes’ are meant within this.

That morning I ended up at  ‘The New Age of Consent: What #MeToo means to Millennials’. This was by accident not design as it was late starting and the eventual line up I think was different to advertised. But I was glad I stopped by, if only because I think it is very important to understand what is happening and just how dangerous it is.

The panel was made up of three young women, who I think were all journalists but I will confess to not initially paying much attention. However, some comments made me sit up, stop playing Candy Crush and pay some very close attention.

There were some sensible and interesting points made, most particularly that we need an urgent change in attitudes about sex and how we talk about it – it is clear we are failing to educate our children and give them the tools they need to navigate sexual misconduct as they grow into sexually active adults. I assume this is because we are too embarrassed or afraid of tarnishing their ‘innocence’. Instead we are creating a generation of young adults raised on porn but without the confidence or knowledge to claim their own bodies and express out loud what their boundaries and preferences are.  So I agree entirely with that point and would have liked to have heard more discussion about how we can achieve more open and healthy conversation about such a fundamental part of human existence.

The sense of that point however was overshadowed for me by something far, far darker. During the course of comments from the panelists, I heard the following:

https://twitter.com/SVPhillimore/status/1033292038618394624

https://twitter.com/SVPhillimore/status/1033292792200613889

https://twitter.com/SVPhillimore/status/1033293298545446913

https://twitter.com/SVPhillimore/status/1033294090417434624

These comments were justified primarily on the basis that

• False allegations make up only 3% of cases – women just wouldn’t lie about this kind of thing
• The ‘rule of law’ and due process is a ‘straw man’ (this comment, horrifyingly, from another journalist in the audience)

There are a number of things I would have liked to say but didn’t have the opportunity.

Explain your evidence base

Where does this 3% come from? I have a vague memory of being referred to this in other online debates but as no-one has ever bothered to explain the provenance of this statistic and I don’t have time to go digging, we are left with this figure of ‘3%’ floating about. I need to know a lot more about how that figure is determined. If it is a figure representative of just the number of women who end up convicted of perjury or perverting the course of justice, then that is as useless as relying on the low number of rape convictions to argue that rape isn’t a problem. The number of criminal convictions for an offence are a guide, no more, no less. And sometimes a very misleading guide. No one can realistically argue that the rate of conviction for rape, for e.g. is a reasonable reflection of the popularity of rape.

I am not at all sure that ‘false allegations’ from women about the bad behaviour of men are vanishingly rare. That very morning the Times reported, for e.g. on a woman who made a false allegation of being threatened with a shot gun by a man with whom she had been in a sexual relationship that went sour. She was found guilty of attempting to pervert the course of justice but escaped a jail term. Her victim had to spend 18 hours in custody until CCTV revealed the lie.

And even if they are ‘only’ at 3%, let me make a gloomy prediction. If we continue down this route of denial of due process and simply ‘believing’ any allegations at the moment they are made then that 3% is going to grow and grow.

Those who dismiss the rule of law also seem to struggle with the law of unintended consequences. It will give me no pleasure to be proved right about this but I am remarkably confident that I will be.

The Rule of Law is a ‘Straw Man’

I am not sure I even understand what is meant by ‘Straw Man’ – the now ubiquitous retort it seems to any attempt at dialogue that does not mirror your own preconceptions. It is defined on line as:

an intentionally misrepresented proposition that is set up because it is easier to defeat than an opponent’s real argument.

This is actually quite terrifying . What on earth was that speaker trying to achieve? Suggest that my wish to defend due process in fact masked my desire to allow as many men as possible to carry on sexually abusing without redress?

To hear the rule of law dismissed in this way by someone identifying as a journalist was truly disturbing. Even more so in a context where the panel themselves cheerfully admitted they hadn’t given any thought to how their calls for summarily dismissal of any man accused of sexual harassment would pan out, other than hey, it wasn’t really a problem as they weren’t asking them to be put in prison and ‘no system is perfect’.

No system is perfect

Of course no system is perfect. But this childish plea for perfection being used as excuse to simply jettison the current system is an astonishingly naive and stupid thing to hear from people who tell me they are journalists. I am often highly critical of journalists cut from the cloth of Sue Reid and Christopher Booker, for example – but I thought the best of journalism represented the best of humanity; fearless independence, analysis, critical thinking and speaking truth to power.

I have watched with mounting concern the same desire to diminish or disregard the rule of law in other professions, most notably social work. The rule of law is the protection of us all against the arbitrary imposition of state power or allowing us to be victims of an individual’s malicious grievance.

Woody Allen was referenced by the panel. They ‘couldn’t believe’ he was still in work after all the allegations made against him. But here’s the thing panel; those allegations of sexual abuse of his daughter didn’t go to a criminal trial. They were investigated within the civil proceedings relating to child custody and no findings were made. It is clear that Dylan Farrow, her mother and brother Ronan ‘believe’ with all their hearts something horrible happened. But it is equally clear that this is denied by Woody Allen AND their brother Moses who was also present during the time sexual abuse was alleged to have occurred.

To proceed on the basis of ‘I believe’ means you must also say ‘but I don’t believe YOU’. Why is Dylan Farrow afforded immediate ‘belief’ but Moses is not? Why would anyone call for the imprisonment or poverty of a man on the basis solely of another’s ‘belief’? If Harvey Weinstein is a brute, then who is Asia Argento? Presumably we all ‘believe’ what her alleged victim says?

These are only two examples out of many. But, in my view at least, they reveal the insanity of attempting to defend any kind of movement that seeks to remove one category of crime from the process of allegations, proof, investigation and determination at a court or tribunal hearing.

I wonder if the rule of law, like feminism, has done the heavy lifting for so long behind the scenes that we are all somewhat careless now of its efforts and achievements. Nothing else I can think of explains the casual dismissal by some of the importance of both.

I am both sad and angry by what I heard on Saturday. I certainly hoped and expected better from journalists, than the embrace of such dangerous platitudes based on no thought about the consequences for us all that would inevitably flow from their adoption.