This year public life has reverberated to the thuds of heavyweight careers hitting the floor on charges of “inappropriate behaviour”. The toppling of some such careers – such as that of the film producer Harvey Weinstein, whose apparently widespread, extreme sexual harassment or assault was Hollywood’s worst-kept secret – was no doubt long overdue.
Yet as the investigations have continued, the ranks of alleged offenders have broadened and perceived offences become less clear-cut. The public has been making fine judgments on single accounts of clumsy passes, borderline racy suggestions and the brush of a hand on a knee. We are thrashing out new boundaries for what is socially permissible, mapped by the serial downfall of big names. The collective behaviour at Christmas parties will no doubt be warier this year, as wise revellers stick to soft drinks and a patch well away from the mistletoe.
This phenomenon has, by and large, divided spectators. The first camp contains those who exult in the cleansing effect of shame upon eminence, and look forward to a future increasingly purged of perceived professional misbehaviour. The second includes those who now feel an intensifying unease at the wasting away of due process, and the growing muscularity of rumour and emotion in a manner that can terminate a career. This latter group includes, among others, Sir Richard Henriques.
Sir Richard knows a bit about the danger of false claims and the operation of the law: he is the retired High Court judge who wrote a damning report into the police’s Westminster paedophile inquiry, Operation Midland, which was based on claims by a single witness.
When Sir Richard turned his attention to recent scandals in political life, he may have heard familiar alarm bells ringing. He was particularly exercised by the treatment of Carl Sargeant, the Welsh Assembly minister who was accused of sexual harassment and peremptorily sacked by the Labour Party. He was found dead four days later, and at the time of his death reportedly remained unaware of the precise nature of the allegations against him, whether true or not. Sir Richard concluded that “our investigative processes are desperately in need of review … what has happened to the presumption of innocence and the burden of proof even on the balance of probability?”
What has happened, among other things, is that the public has become increasingly unaware of the basic principles underpinning the law. Rumour and outrage abound on social media, the vast bulk of which goes unpoliced. The concept of “innocent until proven guilty”, too, is now frequently disregarded – sometimes even by the police, stepping over that crucial line in their eagerness to show that they are taking alleged victims seriously.
Meanwhile, access to justice has grown ever more precarious: in 2016 Lord Thomas of Cwmgiedd warned us that “our system of justice has become unaffordable to most”, noting the withdrawal of legal aid from many cases and the sharp rise in “litigants in person” representing themselves in a baffling system.
Outside of court, the mood is such that Emily Lindin, an articulate writer for Teen Vogue, recently felt able to tweet: “Here’s an unpopular opinion. I’m actually not at all concerned about innocent men losing their jobs over false sexual assault/harassment allegations.” Well, I do hope it’s unpopular: it’s certainly an opinion to chill the blood of anyone who cares about the universality of justice.
None of this is to say that sexual harassment falling short of criminal behaviour doesn’t matter: it does. Depending on its severity and context, it can be an abuse of power, make employees feel bullied and depressed, or even stall a promising career. It is generally good that people are now talking openly about it rather than feeling they must silently endure it. But if allegations of unwelcome advances can result in the rapid loss of livelihood and reputation, then it is only right that workplaces should investigate with sensitivity and formality, in a process that protects both the complainant and the accused.
The New Year will no doubt bring more revelations. Yet while social media encourages the view that “there’s no smoke without fire”, criminal lawyers know that – as Operation Midland demonstrated – the smoke can turn out to be dry ice. And history reminds us that once society stops caring about due process for one group of people, the rot rarely stops there.
Jenny McCartney is a writer and reviewer