Editorial: Retroactive justice
We are uncertain as to what has provided the catalyst for the recent opening of the floodgates that has resulted in a spate of sexual misconduct allegations being levelled against men prominent in the public eye. One essayist has attributed it to disgust with President Trumps distasteful assertion of what constitutes acceptable sexual assault, and others to the #Me-Too movement spurred by the sexual harassment allegations made against Hollywood mogul, Harvey Weinstein. Coincidentally, here in Barbados, we have had parliamentary debate on a Bill that is aimed at preventing one form of sexual misconduct in the workplace.
What is remarkable about these claims is that they each relate to past incidents, in some cases as old as two decades, when a different social compact existed between the sexes. Of course, the mere lapse of time is no bar to the prosecution of any claim that amounts to criminal behaviour such as rape or indecent assault, since there is no limitation period for these offences.
The examples are numerous. Apart from Weinstein, the noted actor, Kevin Spacey, and some others in the US, the phenomenon has crossed the Atlantic and resulted in a spiral of Ministerial resignations and dismissals at the mere levelling of the accusation. While a resignation may reasonably be regarded as an acceptance by the accused of the inappropriateness of his past conduct, it appears to us as contrary to natural justice that there should be the termination of employment or of certain proposed projects without the claimed perpetrator being given a right to be heard in his defence.
This apart, the degree of “zero tolerance” being utilised by some seems more consistent with a retributive modern day witch-hunt than with ensuring the redressing of interpersonal relations. Some remedies seem downright harsh. For example, the former UK Defence Secretary, Sir Michael Fallon, was reportedly forced to resign after telling a female Cabinet colleague who complained that her hands were cold that he knew “where she could put them to warm them up”. This was vigorously denied by Sir Michael, although he admitted to making other remarks that might have been inappropriate – even though he could not recall any specifically. He was then given the option of resignation or dismissal.
While we do not condone sexual misconduct of any kind, it is clear that this current discourse is part of a larger ethical dilemma; should we judge past behaviour by today’s moral standards? It is an issue that transcends sexual impropriety, and bears relation to the contemporary public debate as to whether the statues of those who are subsequently discovered to have been protagonists of slavery and the slave trade should have pride of place in today’s public squares. It is a debate that is ongoing simultaneously in the US with the statues of Confederate soldiers and, locally, with the statue of Lord Nelson.
Indeed, the current debate as to reparations for slavery is forced to negotiate the similar circumstance that the existing municipal laws did not then expressly criminalise the practice; although it is arguable that international law may have done so.
Sexual misconduct is clearly taboo in a society now more mindful of the rights of women and of people generally to exist in an environment that does not present a risk to their psychological safety merely because of their sex or gender. This has not always been the case, in the sense that while criminal conduct has always been sanctioned by dissuasive penalties and while patently inappropriate conduct has always been frowned on, a much more permissive society was once allowed to subsist; one where comments such as that by Sir Michael Fallon quoted above would have been considered normal. By today’s standards, it is not.