Sunday, July 28, 2013
The wrongs done to Stuart Hall
The first is that we can, and ought to, judge past crime by present standards. This is not legally possible. Hall had to be sentenced by the law as it was framed at the time of the offences, which took place between 1967 and 1985. To sentence fairly, it would be necessary to dig out old law textbooks and newspaper cuttings, to get a sense of how these matters would have been treated decades ago.
Had Hall been charged contemporaneously with the matters since complained of, the prosecuting counsel, defence barrister and judges would all be men who very likely would have fought in the Second World War. As such, they would have had a considerably more measured view of human depravity. They would have found the extravagant emotionalism with which Hall has been denounced not just distasteful, but unbalanced.
Hall is not a serial rapist, and there was no suggestion that he used violence or a weapon. The sentencing judge called the acts under consideration 'relatively mild'. His last offence was over 25 years ago. There was really no proper basis for imprisoning Hall in the first place. As such, doubling his term is as unprincipled as it is indefensible. What is going on?
This leads on to the second problematic idea underpinning Hall's sentencing: the present approach to sex offences is dominated by a pre-modern, pre-scientific attitude, which regards offenders as monsters. This is in stark contrast to the more enlightened outlook evolved during the twentieth century, which regarded criminals as people who could be treated, cured and rehabilitated. But the feminist campaign in the 1980s around violence against women and the sexual abuse of children adopted the idea of the offender as 'predator', a metaphor drawn from sensationalist crime novels. A predator is an animal like a wolf, which kills and eats smaller animals. This has passed into official terminology. Judges, policemen and prosecutors now repeat it mechanically, as though it were literally true.
In January 1993, a crime-fiction writer and child-protection attorney named Andrew Vachss wrote an article for the New York Times, balefully entitled 'Sex Predators Can't be Saved'. Unbelievably, he said this: 'Chronic sexual predators have crossed an osmotic membrane. They can't step back to the other side - our side. And they don't want to. If we don't kill or release them, we have but one choice: call them monsters and isolate them.'
As the eminent criminologist Professor Philip Jenkins has noted, the use of such misleading language ultimately derives from supernatural conceptions of deviance as 'evil'. As such, it has ominous consequences for the way our law and society operate. He observes: 'The influence of "predator" terminology on recent legal thought is truly remarkable - about as amazing, in fact, as if a modern US Congress passed a law against vampires, ghouls or bogeymen. The underlying goals may be worthy, but the intellectual framework is beneath contempt.'
The lurid and emotive terminology deployed by present-day victims and their advocates also derives from this fictional/supernatural axis. Even relatively mild acts are said to be traumatogenic, engendering years of torment for Hall's victims, according to Channel 4 News. Jenkins writes: 'As with any religion, survivorship implies a total world-view impervious to disproof or even challenge by conventional standards of evidence or rationality.'
So indecent assaults are transmogrified into heinousness, and the ageing Hall must be caged some more. But what about really serious present-day assaults, such as rape or gang-rape? The perhaps unintended message that we are also giving modern victims of these crimes is that they should expect a living hell as a result of their experiences. This miserabilist and anti-human leitmotif is hardly going to help them."