On Human Rights Act repeal and preaching to the choir

In the UK, we’ve recently elected a new government, and the result was disappointing for many of us.  The Conservatives have now expressed an intention to repeal the Human Rights Act (1998), on the argued grounds that it protects criminals and terrorists.  To be fair to the Tories, they said they were going to before the election, so it can’t really be argued against on those grounds.  I have seen a number of pieces explaining the complications of repeal, generally talking about how it intersects with other legislation and treaty obligations, so to remove the HRA would require unravelling a Gordian knot.  I shan’t go into such matters, since I’m no expert in the legal niceties, except to observe what happened to the mythical Gordian knot; I’m not sure that Michael Gove won’t just forge ahead with his plan and worry about the consequences afterwards (look at Lords reform for a policy under a previous administration that was started without any idea of an endpoint).

So on the basis that, if they believe that it is the right thing to do, the Conservatives might just go ahead and repeal the Act and damn the consequences, their opponents need to make the case as to why this is the wrong thing to do.  Assuming that Her Majesties Opposition do their job (which may be over-optimistic given the last 5 years, but let’s hope the new Labour leadership is a bit more effective), and given the size of the majority currently held by the Conservatives, this looks like a matter of persuading a relatively small number of MPs, either directly or via their constituents, that to do so would be a mistake.  So far so good.

The problem is that while there are a considerable number of people, in both the traditional and new media, making what appear to be very reasonable cases as to why the HRA should not be repealed, I’m not convinced that those who either support or lean towards repeal will listen to them.  Obviously, this is at least in part because there is a lack of direct communication.  You can write as many letters to the Guardian as you like, and Telegraph readers are going to remain cheerfully oblivious.  This is even more heightened by the gap between the traditional and new media.  I love Twitter, but most of the country (certainly that part over the age of, say, 30) barely registers its existence, let alone considers that it might be the site of serious political discussion.  Of course the reverse is also true, as readers of physical media are probably relatively unaware of how irrelevant it seems to the younger generation.  But aside from the issues specific to particular media, I think the major problem is that the two sides are speaking in different languages.

The broadest issue here is that when the term Human Rights is used, different people hear completely different things.  For those of us who *believe* in Human Rights, their existence and nature is self-evident.  While we might debate their precise constitution, for us the fact is that a) there are certain rights that are common to all of humanity, and b) that these are assigned purely on the basis of being human.  For the other side, this is not the case.  At the extreme, there are plenty of people who do not recognise the existence of rights at all, only privileges.  In this case, ‘rights’ are something awarded in return for certain behaviours: paying one’s taxes, adhering to the law, etc.  Secondly, these rights or privileges may be specifically limited to citizens of a particular territory.  This is not an unreasonable position.  In fact, given the concerns over the repeal over the HRA, it is eminently logical: it appears that the rights we are talking about are created by the HRA and similar legislation.  Where we, as believers in Human Rights, diverge is in insisting that these rights exist regardless of the HRA.  For us, the law only recognises, and administrates for, self-evident facts.

So the challenge for those arguing that the HRA should be maintained, or at very least that those who wish to repeal it need to make a lot clearer what exactly will replace it (because nobody is arguing that it is without flaw), is in speaking in way that their opposite numbers understand.

Speaking across the line

So, having determined that we must talk in way that resonates with those we are trying to win over, we must begin by acknowledging who they are.  The first, small, group is ministers and senior members of the Conservative party who find themselves directly frustrated in their plans by the existence of the act.  I suspect persuasion here is a waste of everybody’s time.  The vast majority of people who support, or at least ambivalent to, appeal have far less personally invested in this happening or, more pertinently, believe this to be the case.

To appeal to this large body of people, I think we must make the case in terms of self interest.  To be clear, this is not to say selfishness, as they are as concerned with the good of those around them as are any of us.  But we must explain how the law benefits (and repeal would injure) people like them.  We’re broadly dealing with tribalism.  There opposition is based on what they believe to be right for their family, friends, and the country at large.

For the above group, the apparent effects of the act can be summarised in two broad categories: it protects and privileges criminals and terrorists, or at least people suspected of being such; it has no positive effects for ‘hard-working’, tax-paying, law-abiding citizens such as themselves.  That the former is, at least partially, the case is unarguable (the protecting part, not the privileging – if it gave rights to the accused that were not general to the population, it would indeed be flawed).  This is part of what it is supposed to do.  The idea that it does not do the latter, though, is attached to the notion that there are two distinct classes of people, which we might just call ‘criminals’ and ‘citizens’.  (by the way, I’m fully aware that I’m doing the dividing thing myself by talking in terms of ‘them’ and ‘us’, but this is merely regarding temporary positions on a single argument, not a lasting classification)

So, I think the case needs to be built, or restated, given the fact that it is self-evident to many, that the division here is false.  That by committing a crime, still less by being accused of one, one does not suddenly move beyond the pale.  That a criminal, a protestor, an asylum seeker, is not in any way a different *sort* of person to any of the rest of us ‘law-abiding’ types.  As long as you can accept, or even self-construct, a narrative where there is the sort of person who this happens to, and the sort of person you are, it’s only a small step to believing that they deserve different treatment.  It’s not as naked as self-interest vs. not caring what happens to others, but the fact remains that we find it hard to empathise with people without a strong personal connection.  And that can be manipulated by those who control the narrative.  I think much of it is actually driven by our need to believe in natural justice.  We know we live in a world where some people are treated badly, and the idea that we are somehow complicit in that is deeply troubling.  So we listen to those who tell us that those who are in trouble must have done something to deserve it.

I think the case that needs to be made to save the HRA is based on asserting its benefits for all of us.  It doesn’t help that if you are, say, a white middle class professional, you do generally get treated well by the authorities if you should happen to come into contact with them.  You think, for the most part, that they are fair.  Your day-to-day experience shows you this.  And if they are fair to you, why wouldn’t they be fair to everyone else?  But while an unchecked state may start by treading on the smallest of us, it will see no reason not to extend the practice.

The case needs to be made that a state and a people that does not respect and protect the least of us, the disadvantaged, the criminals, those who do not have citizenship, does not in the end respect or protect any of us, except maybe those who are rich and powerful enough to buy their own way.  Only by showing that we are all the same, that Human Rights are exactly what they are called, are we going to be able to win over those who see the HRA as unnecessary or even bad.

Why men must believe women about rape.

CW; TW: rape

This is the first post I’ve written for a particular audience: other men.  This is because the last thing women need – and it’s not as if they don’t already have a near infinite supply – is another man telling them about something they are far more qualified to talk about.  Also, as a feminist/ally/whatever, I understand that the most helpful thing I can do is try to talk to other men, because that’s where – at least in theory – I have an advantage.

The key point is that rape is not like other crimes, and until men at large appreciate this, it’s going to be difficult to act effectively against it.  This is not to say that all other acts are the same, but rape cannot just be treated as another offence on the list the police and courts are to deal with.  This is not just because it is overwhelmingly directed at women (and, yes, I am perfectly aware that a significant number of men will also experience rape), nor because of the terrible stigma attached to being a victim, although both of these are related.  But in no other crime is it quite so common to find people denying that it ever happened.  This is why you’ll find campaigns, hashtags, petitions and the like circulating to announce that other women *believe* an accuser.  It’s all too easy to mentally dismiss these as being about female solidarity – and that is part of it, and a good thing in its own right – but it goes beyond that, as rape is the only crime where the public response routinely involves attacking the victim.

Take a murder trial: at some point in proceedings, the defence is able to provide a good enough alibi that the defendant is acquitted; so what happens next?  Obviously this may be upsetting for the victim’s family and friends, and a set-back for the police and CPS, but a setback is all it (necessarily) is.  The first thing you expect to see outside the court is the leading officer announcing that they intend to reopen the investigation and find out who *really* committed the crime.  The same would apply for an assault, a robbery, or any of a variety of other crimes, and it may be true in the case of the cliched attack-by-a-masked-man-in-a-dark-alley.  But with the vast majority of rapes, when the trial falls apart (assuming that things have advanced that far) the default assumption is now that the alleged crime never actually took place.  Or that there was sexual activity, but the nature of it magically changed to being either fully consensual, or a mere misunderstanding or miscommunication (not that the latter should be excusable).

It’s not so much that I’m arguing that we should treat rape differently de novo, as observing that we already do, so we need to react to that.  When a killing, or a theft is announced, we immediately accept the reality of the crime.  There may be all sorts of theories floating around about the perpetrator, or how the crime was committed, but things have to get to a pretty extreme state before we consider that it might not have happened in the first place.  So really, in saying that we believe a rape victim is only to restore that crime to the status we accord to the rest.  To say that we believe a rape victim is to accord to them no more than the basic courtesy afforded to the rest of society.

Some expected responses

Now a certain fraction of mankind will immediately leap up against the idea that any one crime should be treated differently to the rest as counter to various principles of justice.  My first response to that is to observe that legal and judicial systems are constructed and evolve over time; we might like to pretend that there are eternal underlying concepts, but the fact is that we have constantly modified both laws and systems to reflect the wider society.  Also we already treat different crimes in slightly different fashions.  Nobody seems to object to the notion that sexual crimes need to be handled with greater delicacy than others.

The second is to observe that apologists often seem very attached to a misreading of ‘innocent until proven guilty’.  This is part of a whole raft of narrow legal principles that people like to interpret as general rights, but without any sound basis (see also: people shouting about Freedom of Speech while failing to understand that the right, as most clearly given by the first amendment to the US constitution, which even non-US citizens tend to use a benchmark, is purely to not have *the state* limit one’s speech).  If you’ve committed a crime in fact, you are not innocent up until the moment of conviction, in the sense of not having done it.  The facts themselves do not change.  You *are* innocent in the eyes of the law, but that is not the same thing.  Nor is there any expectation against members of the public forming opinions at any stage in proceedings, except in the case of their being required to perform jury service.  I challenge anybody to read the news without forming instant (if potentially malleable) opinions about the guilt or innocence of those reportedly involved in any incidents they read a few lines about.

And finally, and associated with the above, there’s the fact that a rape trial is, to an extent, zero-sum.  To say that the defendant is innocent is necessarily to imply that the accuser is guilty (of fabricating, or at least exaggerating the incident).  And in plenty of cases it goes much further than that: it has been horrible to observe over the past few years how many people tangentially connected to the Ched Evans case have attacked the victim in all sorts of public ways.  And the rest of us have largely let this go because this is what the friends and family of someone accused of a crime are *supposed* to do – leap to the defence.  But in the case of rape this can seemingly only be done by attacking the character and credibility of somebody who has already been subject to a horrific crime (and let’s not ignore that in this case he was convicted and hasn’t been able to provide grounds to appeal or overturn).

So this is why it’s important to believe anybody who says that they have been raped.  We all know it happens a lot, even if we refuse to believe it in the face of overwhelming statistics.  On the same basis we should also know that false accusations are vanishingly rare (not least because of the huge cost to the victim of going public.  I don’t know where this myth of women getting rich and famous of the back of making accusations came from, but it’s as persistent as it is poisonous).  But even if this were a possibility, with any other crime we’d expect the police and the courts to root it out.  The women who have been raped deserve our support, and much of that comes from simply saying that we believe them.  There is a time and place for scepticism, but it is not in the face of somebody who has just faced one of the worst experiences a person possibly can, and who will also be acutely aware that this is just the beginning of their ordeal.

Believing rape victims is the only decent thing to do.

Postscript

Please note that when I’ve talked about rape in this, I include various other sexual offences; this is not about a particular legal definition, but a type of crime and how society does (and should) deal with it.

The Problem with Libertarianism.

I’m a liberal.  Depending on where you are in the world and your own political background, that might read as a okay, great, or terrible thing to be.  And within the tent it’s pretty complicated: gentle hippy types, hawkish republicans, and avid consumers can all be heard describing themselves as ‘liberals’.  But the root idea is that everybody should be free to live their own life as they choose, and in turn leave others to do the same.  If only it were that simple in practice.

,Within liberalism, though, there are two broad trends, connected to two conceptions of liberty: negative and positive (when exactly these were defined is a little disputed, but Isaiah Berlin may have been the first to formally do so).  Putting aside the possible implications of those labels, they are pretty simply formulated: Negative liberty is the absence of constraint, while positive liberty requires that one be empowered to act to carry out what they will.  The former is pretty simple, and contained within the latter.  Positive liberty is more complicated, but its necessity might be argued for by observing that, say, a small child alone in the wilderness is free from constraint, but still lacking in ‘freedom’.  I think most of us would have at least some sympathy for the idea that children should receive some education and basic healthcare even if we feel that as adults it should be ‘every man for himself’.  Of course if negative liberty is callous, positive can tend to overstretch its roots and lead to the ‘nanny state’.

Those who lean towards negative liberty are libertarians, as they see personal liberty – in the sense of freedom from constraint and interference – as the ultimate goal.  And those, like myself, who believe that positive liberty is fully a good thing, rather than a necessary evil, might call themselves social liberals.  Nonetheless, the two groups should really be able to get along, sharing the same ultimate aim.  As long as the libertarians have got their own spaces, we more socially-orientated types should be free to organise our selves, and we shouldn’t mind if they don’t want to participate, cos they’re not asking for anything either.

However, there is a big problem: [most] Libertarians are arseholes.  I’m not saying that social liberals aren’t an issue too, but social liberals don’t misrepresent ourselves in the same way.  We admit that we think we or the state should interfere in people’s lives.  There’s a lot of debate to be had about how much interference is too much, but at least we’re not pretending that this is not what we’re up to.

Why ‘Libertarians’ are arseholes

The first problem with people who call themselves libertarian is that most of them aren’t anything of the sort.  The second is that even those who ostensibly are have no idea how it would work in actual practice.

An example of the first type would be those better described as small-government conservatives   To put it briefly: it’s not libertarian to not want the state to meddle in your life (cos that’s true of pretty much everybody), it’s only libertarian if you don’t think the state should interfere in everybody else’s life too.  These are the people who would like the government to butt out when they abuse and discriminate against certain other races/sexualities/religions/etc., but at the same time demand that it act to prevent access to abortion and block same-sex marriage (they’re kind of accidentally half right on the latter, as a true libertarian should be opposed to any form of state-sanctioned marriage).  Everybody thinks that the state should do less of some things and more of others, but its not an ideology.

But you’re an arsehole if you can mentally juggle the idea that the state (and everybody else) should totally leave you to do what you want, while insisting that it stick its nose into the business of other people in the most intrusive fashion (and you don’t get much more intrusive than some of the rules that have been introduced to limit or discourage access to abortion).

The second major bunch of pseudo-libertarians who seem to be cropping up of late have given the matter a modicum more thought.  And they take their cue from people who are as close to actual, practical libertarianism as possible: survivalists.  The odd thing is that this new bunch are placed in a polar opposite situation: the techno-utopians.  I’ve been seeing a lot of these around Gamergate and the New Atheism (there’s a not insignificant overlap between the two of these, either).  Anyway, the common factor here is that these groups maintain that they can manage without the state, so they’ll be just fine if it goes away.  With your survivalist types, this might just about be possible.  If you’ve got the skills to not just cope in the wilderness, but to maintain the tools (and weapons) that you need to do so, then maybe you don’t need society.  It still seems a little churlish to ignore the source of your education, but if you want to bugger off, so be it, and best of luck to you.  The techno-utopian types are far more laughable.

I said that these people have given it a modicum more thought than the small-govt conservative, and I do mean a modicum.  They seem to think that if you magically removed all of the structures that support our modern global society, it would still stand in the same place.  They sit behind a computer and genuinely believe that either a) they have the basic skills to survive in the wild, because they play enough CoD; or b) that they’d be able to trade their coding skills for the necessities of life.  Somehow or other, the internet, the power grid, the roads, the markets, etc, etc, are going to be maintained in the absence of government, to allow them to barter off their amazingly specific skills.  It’s a really weird combination of a primitivist ideology with total dependence on high-technology.  So, again, these people are in effect demanding that all the things that annoy them personally are removed, while maintaining all of the associated stuff that they enjoy the use of.

Thing is, I’m totally a fan of the idea of dismantling current structures and systems of power.  States, corporations, institutions can all be torn down.  You just have to consider what you want in their place.  And nothing at all is not really an option, at least if you want access to running water.

Postscript

It might be observed that I haven’t really answered my question.  Rather than explaining why libertarians are terrible, I’ve pointed out that most people who label themselves thus are mistaken.  So a last point to maybe help explain why real libertarians are arseholes: it’s an ideology overwhelming dominated by white affluent types, frequently male, and who display an amazing blindness to how much they benefit from the status quo (and the state).  It’s easy to maintain that you can do as you will, when you have grown so used to the safety net that you can’t even see it any more.

On Freedom of Speech

There’s been a lot of bullshit talked about freedom of speech lately.  There’s been a lot of bullshit talked about freedom of speech since it became a concept.  But perhaps the most frustrating thing about the recent spate is that people are talking at cross-purposes, and generally agree on the basic principle, just not how and where it’s applied.  This is not an argument about whether there should be a free press or government monitoring of what people say.  As such, I shall try to be charitable towards those I disagree with, as I think they’re generally well-intentioned but mistaken in their apprehension, rather than malicious.  Or at least most of them: some are awful trolls and haters (I’m not sure if I like the word ‘haters’ in general use:most people don’t hate indiscriminately – they do it directedly and for reasons, good or bad – but it’s about right here).

First, some pedantry.  When people talk about freedom of speech, they mean a whole range of different things, from being able to express an opinion in (what they regard as) private, up to the maintenance of a free press.  And this is the root of much of the disagreement at present.  But when one is talking about freedom of speech as a formal right, it must refer to the state, and nothing more.  The right to speak freely is the right to not have your speech arbitrarily monitored, limited, or controlled by the government.  It doesn’t stop other people from ignoring you or shouting you down.  It doesn’t mean you get to speak in any particular place.  It doesn’t entitle you to say anything you want without consideration for the possible effects.  The classic example is shouting ‘Fire’ in a crowded room, causing a stampede.  It certain doesn’t entitle you to a platform, or any other means of amplifying your voice over those of others.

This is not to say that many of these things aren’t desirable.  Those with something to say should be heard.  But that comes down to matters of opinion about who should be heard, and who ignored.  What isn’t helpful is people framing any suggestion that a certain individual doesn’t deserve a given platform as censorship.  Especially when that person has access to all sorts of alternatives.  Most people in the world have little outlet (and probably nothing before the advent of the web), so let’s not get distracted by a few high profile people encountering a little resistance at universities.

The limits of free speech

Look, in an ideal world, everybody would have a public voice.  This sort of thing – a blog – is a pretty good approximation.  Of course, most blog content might as well be shouted into a well.  A few friends and family might read it, but unless you hit something zeitgeisty, or have contacts, you have no expectation that it will reach many people.  The thing is that the ‘free speech is everything’ people aren’t focussed on the right to speak, so much as the right to be listened to.  I think they make two major oversights.

The first is in trumpetting a simple multiplicity of views.  The more ideas and opinions we hear, the better.  In an ideal world…maybe.  It’s certainly good to consider contrary opinions, even if they do only lead to us strengthening our own.  Debate is a fine thing.  But to suggest that ignoring any given person  – generally someone the arguer agrees with – is a mistake is itself folly.  There are simply too many voices in the world, and we are all necessarily selective.  You should certainly temper your Fox News with some BBC (and vice versa), but you cannot possibly listen to every single position.  So people are very rarely just saying ‘don’t listen to this person’; rather, they are saying that you should give time to someone else you maybe haven’t considered.  To give a specific example: when a group protested against Germaine Greer speaking at the Cambridge Union, they didn’t just argue that she shouldn’t be listened to (on the grounds of her attitude to, and treatment of, trans* people), but they offered their own event and speakers, Roz Kaveney & Sarah Brown, to provide an alternative.  Oddly, this has been presented by some as ‘no platforming’ despite the fact that both events went ahead.

The second error is in ignoring the fact that speech can have negative consequences.  It is odd that they present it as being neutral, ideas as if they are completely objective prior to their application, when they are so determined as to the good that can be done.  If the world can be changed for the better by a speech, it can just as well be made worse.  We know that some things can be harmful if said in the wrong place and time.  The aforementioned shout of ‘fire’.  The use of abusive language directed at certain people.  This is all about context: a word is neutral when spoken in a vacuum; it is not in any circumstance where it has meaning.

The thing is that virtually all of those calling for more free speech know this.  I doubt many of them want to give neo-Nazis an opportunity to recruit at our institutions of learning (because even *wrong* words have power).  I’m sure they all repudiate hate speech.  But then who decides what hate speech is?  Denial of a genocide?  The suggestion that only white people can be British?  Arguing that women are inherently inferior?  Insisting that sex is purely physiologically determined and fixed at birth, and that trans* people are trying to fool the rest of us?  Of course, where you draw the line is a huge messy argument in itself.  This has long been the debate around the rise of UKIP to apparent ‘legitimacy’, but even Nigel Farage appreciates that there are some things that should not be said in public (even if he’s only kicking people out for reasons of expediency).

It’s odd that the one type of debate the arch free-speechers don’t want to hear is the one about what sort of public debate we should be having.  They like to pretend that the line between the acceptable and unacceptable is generally agreed and immovable.

“Hey! He lied to us through song. I hate it when people do that. “

It’s amazing how easy it is to lie to those around us.  Lying is generally regarded as a major moral failing, and we would all like to think of ourselves as good people, so we convince ourselves of our virtue despite the fact that we constantly dissemble and misrepresent.  As more than a few people have observed, true honesty is not socially acceptable.

I’m not thinking of of major untruths: the slandering of a rival, the concealment of one’s criminal actions.  Nor the petty viciousness a child might direct towards a sibling, or the way a gossip may massage facts to inflate their own importance (Twitter’s own version, perhaps, being reposting without attribution).  On the flip side, I equally don’t mean white lies proper, where one acts to protect from genuine harm, or shame.

No, the vast majority of the lies we tell are simply social lubricant.  A colleague asks after our health and we unthinkingly reply that we are well.  Or we avoid making a perfectly justifiable complaint in a restaurant in order not to make a scene.  Conversely one might pretend relative indifference to a topic of great personal interest, as we know that interest is not shared by others present.  As a Brit, I have been trained to take part in the great ironical game where a phrase like ‘mustn’t grumble’, which clearly is grumbling in itself, is used to suggest that everything is fine, regardless of whether or not this is the case in fact.  And none of this is to suggest that this is a bad thing.  If whenever one spoke on a matter, one felt obliged to point out every single little dissatisfaction, or to trumpet one’s delight, we’d probably spend most (or more, at least) of our time wishing everybody would shut up for a bleedin’ minute.

Although there is clearly a vast gulf between the way we would like to see ourselves, and how we actually are, there is at least one matter those who sing the gospel of probity have got right: small lies soon become bigger ones, and the few easily multiply.  Or at least this happens if we are not vigilant.  If we unthinkingly lie about the insignificant things, at some point we’ll slip and do the same about things that really matter, that require the truth.  As the title might have suggested, I’m thinking of when we say that we’re ok, but really are not.

Now I don’t want to come across as if I’m painting myself as a paragon, but I’d like to think that I’m particularly good at this.  While I hardly led a childhood of deprivation, I lost my mother at a young age, and yet I never complained.  When I say this, I don’t mean I never objected to anything, or protested about my treatment, just that I never stopped and said anything like, ‘I’m eight years old, and I’ve just had one of the most important people in my life taken from me.  I shouldn’t have to deal with this, and I’d like some fucking help, right now.’  It seems rather funny writing like this about my past self, because I really don’t remember it like it happened to me.  I’m not sure how everyone else looks back on their childhood, but for me it’s more like recalling the elements of a story someone else once told than sorting through my own more recent memories.  Anyway, I digress.

It’s possible that my particular case is exacerbated by my Britishness, middle-class background, or my being male.  I’ve certainly seen mention of the latter in regard to the poor record of men presenting themselves to a doctor when sick.  But it seems rather odd to generalise this way as I don’t see our public spaces flooded with women bewailing their many misfortunes.  Well, I don’t – some people seem unable to distinguish between the legitimate airing of political grievance, and ‘moaning’.  There may be minor differences in the extent, but everybody does it, at least most of the time.  And this may not always be healthy.

I’ll wrap up with the idea that this was just a very long-winded way of saying ‘I’m not ok’.  But I’m kind of ok with that.

Postscript

Maybe I have made an error in assuming that everybody lies.  If you feel that I have misrepresented you, I apologise.  I’d say that I admire you but, in an uncharacteristic moment of truthfulness, I’ll admit that I don’t.  Honesty has its place, but it can also be brutal, hurtful, and even malicious.  I might like to be more honest, but totally?  I think not.  I’d rather get on with those around me.

I beg your pardon – Alan Turing and forgiveness

A year or so ago, it was announced that Alan Turing, codebreaker and computer pioneer, was to receive a royal pardon for his 1952 conviction for gross indecency (specifically being in a homosexual relationship).  Although this was the result of a long campaign, by this time it met with little objection.  Turing has been widely acknowledged as a hero of the Second World War (although I think the pendulum has swung to the point where both his individual contribution, and that of Bletchley Park in general, have become somewhat exaggerated.  But that is a matter for another day), and the activity for which he was condemned has now been legal in the UK for some decades.  So far, so uncontroversial.

No doubt some of those who objected did so because they viewed his sexuality and his relationship, while now legal in the UK, as wrong or sinful.  These people are uninteresting, caught as they are on the wrong side of history.  However, there was another source of complaint: that in singling out Turing, the state was saying either that: a) it’s ok to commit crimes if you’re a hero; or b) you only deserve (posthumous) justice if you’re famous.  The former is an interesting matter – we do already allow all sorts of exemptions from normal rules for people acting in exceptional circumstances (such as the emergency services being able to ignore speed limits in the course of their duty, or those under immediate personal threat) – and could be examined from a utilitarian perspective.  The latter, however, is what has lead to the situation that I read about today.

For a few people, the reaction to reading about the pardoning of one prominent homosexual man was to ask ‘what about the rest?’  The first I read was Ally Fogg’s piece in the Guardian: http://www.theguardian.com/commentisfree/2013/dec/24/alan-turing-pardon-wrong-gay-men .  He objected to the fact that Turing was being singled out for this privilege on the grounds of his (justified) fame, and argued that the pardon should be extended to all those convicted of similar crimes.  He noted that they already had the right to have their criminal records removed, since their actions would no longer be considered a crime.  Thus it would seem to be a relative formality and, as he observed, a potentially neat piece of political marketing, to extend the Turing pardon to all those, living and dead, unjustly prosecuted for their sexuality.

A year on, this new campaign has grown and is making its presence felt on social media, led by Benedict Cumberbatch off his playing Turing in The Imitation Game.  It is on this that I want to comment.

My two cents

Firstly, I want to clarify that I regard Alan Turing as a great person (I’m a little uncomfortable with the word ‘hero’), entirely deserving of recognition for his work, and I am sure that Ally Fogg and other associated with the current campaign concur.  If we are to celebrate those who worked against the Nazis and their allies, it is fitting that we go beyond those in a purely military capacity.  Secondly, I regard persecution on the basis of sexuality as a grave error, whether by individuals or the state.  As a pansexual (which is to say approximately bisexual+ for people who recognise that sex and gender are not binary), I am acutely aware that I am privileged to live when I do, when at least I can know that I won’t be pursued by my government for this.  If we could replay history, it would be good to think that we would have behaved differently, exporting 21st century attitudes to an earlier age.  But the editing of history is one of the matters that interests me here.

My first question is what exactly this pardon (either for Turing individually, or for the many thousands of others) entails.  Now I am not a legal expert, so I am going to work on the basis of Wikipedia and some googling (if I were writing a paper, I would certainly do more, but this should suffice for some general musings).  Broadly, a pardon seems to work in one of two fashions, one simpler than the other.  The first, which is certainly the case in the US and some other jurisdictions, is that it consists in forgiveness for an admitted crime, including cancellation of the associated penalty.  The second is vaguer and, crucially, makes no mention of the admission of guilt.

In the first case, we take it that Turing admitted committing the offences with which he was charged – as he did at – the time.  He did what he did, knowing it was illegal, and does not deny breaking the law.  The state, on behalf of the nation, then decides to forgive and cancels the associated penalty (with some difficulty, one thinks, given that the sentence has been carried out and the subject has been dead for some years).  The problem with this is that the crime remains just that, and historically Turing is still a criminal, albeit one who has been ‘forgiven’ for his crime.  This is highlighted by looking at possibly the most prominent such pardon in recent history, that of Richard Nixon by Gerald Ford.  In that case, it is generally accepted that Nixon was involved to some extent in both criminal and ethically wrong activity, but he got a pass for some reason (either because Ford was his friend, or because it was in the ‘best interests of the country’, as Ford himself put it).  You can see the similarity if we focus on the Turing pardon alone: he committed a crime, but for various contingent reasons, the state has decided to make an exception to the usual rules.  If the general pardon for crimes relating to homosexuality is granted, it becomes somewhat more complex, but the general situation seems is the same.

In the second case, we don’t begin with the assumption of guilt at all.  Again, Turing plead guilty at the time, but was apparently persuaded to do so on the basis of expediency.  This opens up a whole other can of worms regarding a legal system that encourages people to plead in hope of a lighter sentence: one may believe oneself entirely innocent, but still officially admit a crime to reduce the sentence.  At the very least it should undermine the position of anybody who believes that criminal verdicts necessarily represent the ‘truth’ of the matter.  Justice is not supposed to be about bargaining, it is supposed to be about determining what *actually* happened, before acting upon it.  Regardless, it makes the matter of what the pardon entails considerably murkier.

It would appear that either: we assume that something similar to the US process occurs: Turing and the others did commit a crime, but we have belatedly decided to forgive them; or we are now going to pretend that we can apply modern standards to historical cases, effectively pretending that the whole sorry business never happened because it wouldn’t have been a crime at all in 21st century Britain.  The dilemma is whether to forgive or forget, both of which are more complicated than they may first appear.

Forgiveness looks bad because it takes it that we do still accept that what Turing et al did was wrong, but we have decided that they are worthy of our special treatment.  It is a bit ‘love the sinner, hate the sin.’  And this is clearly unsatisfactory for anyone who doesn’t take the previously alluded to position that Turing only deserves his pardon because of his heroism.  Basically, you can’t forgive somebody without continuing to believe that they were wrong.  The fact that you forgive them doesn’t just fail to change this, in a fashion it actually preserves it.

Forgetting is equally tricky, not least because it pretends that we can act upon the past.  It also, by emphasising that this is not about a special exception to a rule, opens up the question of how widely this can be applied.  Now I’m certainly not going to oppose the pardon on a vague ‘thin end of the wedge’ argument, but it does raise the question of whether we should consider pardoning persons convicted of other activities we now no longer regard as crimes.  Women were also the victims of laws we now regard with something between horror and disbelief, so should we pardon those convicted of witchcraft?  For those unaware, there is a long-running campaign for a pardon of the last woman convicted Helen Duncan, sentenced to 9 months in 1944.  From a 21st century position, this also is absurd and should not have happened.  But it did, and nothing we can do can make it otherwise.

And this gets me to the broader matter of state wrongs.  Turing’s prosecution was not isolated.  Nor were those of the thousand of others tried and convicted of similar crimes.  The British state and its justice system have done a lot wrong in the past (as I am sure they do in the present, and will continue to do so, but these are matters that can be addressed more directly (the same are true of every state in history, but let’s keep the focus as tight as is reasonably possible).   As much as national continuity is plausible, the current form bears responsibility for the past.  I realise that this raises flags both in terms of sons bearing the sins of their fathers, and collective blame for individual wrongs, but I am talking about the state, which is not merely a collection of its constituent citizens or subjects, and which continues to exist – in the manner of Theseus’s ship – even as its people are born, live, and die.  Notwithstanding the changes of administration, the state that exists today is the same one that prosecuted Alan Turing and all those others, and it is this state that needs to atone for its wrongs.  Individual British people can then decide how personally it involves them, with the caveat that if you want to enjoy the glory of past military victories (as the current government seems to be doing with WW1), then you also accept that you are associating with a state that jailed people for their private activities.

Forgiveness or apology

Ok, so here’s what I think we should do: pretending that the prosecution of Turing, the thousands of other homosexual men, and the countless others convicted of crimes that are no longer crimes did not occur seems somewhat farcical.  A pardon, framed as it is in terms of forgiveness and clemency, also seems wrong given that it assumes both factual guilt, and the authority of the forgiver to do so.  Rather, the British state should be offering a public and unconditional apology to those it has wronged in the past.  It is the nation that wants forgiveness for its errors, and the gift of this should rest with those it has wronged (or their descendants as representatives).  We could then start thinking about all the others due an apology.

Postscript

Obviously, it goes without saying that I agree that anybody still living with a recorded conviction for crimes similar to Alan Turing should have it withdrawn.  And I broadly applaud the campaigns spoken about; I entirely agree with their intentions, if not quite their precise goals.