Cassandra Voices

Category: Law

  • Containing Strife – Professional Ideals in Law and Mediation

    Perhaps we can agree on this much: conflict is intrinsic to the human condition. We are desiring creatures. Our needs and wants rub up against those of others. Add in an event of intensification: a road accident, a perceived act of negligence, breach of commitment or betrayal of trust. Then there arises anger and its close relative, blame.

    Many such situations can be framed in legal terms. We have codes to regulate how people ought to behave. A breach gives rise to the possibility of redress. Often, however, we may observe what looks like a complex legal dispute, but that is not at the heart of the matter.

    As a lawyer I worked for months on the blowout of a large and successful business partnership that engaged several large law firms, and various court proceedings. Yet it was never clear why the parties had fallen out. I heard it suggested that the root of the trouble was the slighting by one partner of another’s wife. There is also the phenomenon of ‘grief to grievance’. People in heightened emotional states are more prone to disagreement and finding fault.

    Because we are generally disabled by our conflicts, it can suit us to delegate their resolution to people trained for that purpose. ‘You will be hearing from my solicitors!’ Those are the experts who know what remedies are obtainable, or how far our interests can be pushed.

    II

    The work of lawyers is considered that of a profession. To call an occupation a profession suggests a difference from other ways of scratching a living. There is, in origin at least, the suggestion of  calling or vocation.

    That said, professions have their own associated pathologies. George Bernard Shaw fashioned the line that ‘every profession is a conspiracy against the laity’. Adam Smith famously wrote in The Wealth of Nations that ‘People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.’

    I want to focus for a moment on the nature of professional legal work in litigation and dispute resolution before considering the emerging profession of a mediator.

    The question arises now, whether there is a useful distinction that can still be drawn between a profession and a business. One hears a complaint in recent years that the law has become just one more business. Indeed promotional advertising addressed to the business community often makes a virtue of this development, suggesting that legal firms have a better understanding of the needs of business as a result of being, so to speak, in the same boat: ‘We are [firm XY], where law means business…’.

    What are the distinguishing features of a profession? Generally, one finds an insistence on codes of practice which its members must adhere to. Since lawyers hold a monopoly on the workings of the justice system, their conduct is heavily regulated. By contrast, persons working, say, in the IT sector will have to comply with relevant law applicable to that activity, but will not be subject personally to regulation as to how they conduct their business.

    Another aspect is that professional work seems to involve a higher degree of responsibility for the welfare of the person to whom services are supplied. It should not be a case of profit maximization, of caveat emptor. The expression ‘client’ rather than ‘customer’ indicates a different standard.

    Admittedly, much legal work performed in modern conditions, such as that associated with purchase and sale of property, or construction or corporate mergers or acquisitions might be considered as, simply, one more business. On the other hand, work in handling civil disputes can more readily be seen to have a more significant professional element, especially if promotion of a more peaceful, less strife-ridden society is to be seen as a public good.

    The idea of a profession would also suggest some level of restraint as regards charges, as opposed to ‘what the market will bear’. The historic appendage of a cloth purse till attached to a barrister’s gown, into which a couple of guineas could be slipped unbeknownst to the noble advocate may attract derision, but there is some kind of echo there, however faint.

    Within a law firm, it is hard to justify the use of fee targets for practitioners in dispute work if the social aim is to encourage expeditious settlement. Any scheme to base remuneration or bonuses on such targets would surely be suggestive of a Faustian bargain.

    One would also expect a measure of restraint as regards marketing of professional services which would not be applicable to pure business. This is a difficult area because lawyers have to take account of what competitors are doing. Yet a young solicitor observed to me rather sadly: ‘I was brought up to believe the fee follows the work, but now it seems the work follows the fee’.

    III

    A distinguishing feature of professional work is that it attracts the expression ‘practice’ as a description. There is a whole field of philosophical commentary as to the nature of ‘practices’ and their contribution to society. The philosopher Joseph Dunne has illuminated this subject. His words can offer an inspirational ideal for professional practice.

    A practice is a coherent and invariably quite complex set of activities and tasks that has evolved cooperatively and cumulatively over time. It is alive in the community who are its insiders (that is to say its genuine practitioners) and it stays alive only so long as they sustain a commitment to creatively develop and sustain it – sometimes by shifts which at the time may seem dramatic and even subversive. Central to any such practice are standards of excellence, themselves subject to development and redefinition, which demand responsiveness from those who are, or are trying to become, practitioners.

    Engagement in the characteristic tasks of a practice, which embody standards that challenge one in so far as they are beyond one, leads, when it goes well, to the development not only of competencies specific to that practice but also of moral qualities that transcend it – that characterize one not just as a practitioner in that domain but as a person in life. 

    He adds that a thing worth noticing about what may be called the economy of a practice is that it is not based on scarcity. Thus if one person excels it need not be at the cost of the other people’s chances to develop their talents. He concludes that ‘Every achievement of excellence enriches all those who participate in or care about a practice; it can be an occasion for admiration or even celebration as well as sometimes, of course, for attempts at emulation.’

    What is spoken of here, of course, is practice at its very best, but to express the ideal is to provide some yardstick by which particular work settings can be judged.

    IV

    What then of the newly emerging profession of mediator, an activity recently given status in Ireland as a result of the Mediation Act 2017? This Act, which envisages the establishment of codes of conduct for mediators, had a lengthy gestation, starting with a consultation undertaken by the Law Reform Commission nearly a decade ago.

    The main impetus has been dissatisfaction with the standard model of litigation, built as it is on adversarial confrontation, and correspondingly high costs. There is increasing resistance to what is labeled as ‘binary’ thinking, and promotion of what is termed a ‘non-dual consciousness’. The mediation model asks parties to recognize that they have a shared problem.

    Patterns of practice in mediation are still emerging. Those who have engaged in this work for many years can be heard to complain that lawyers are wanting to take over the field, and to run mediations as if conducted on a practice ground so as to play out what a courtroom outcome would look like.

    The kind of intellectual activity associated with intensive legal work – what a neuroscientist might classify as left-brain-activity, may be necessary to provide an understanding of a case that has proceeded along the litigation path, but the actual work of mediation calls for capacities more associated with the right hemisphere of the brain, and recourse to intuition.

    It is notable that the Mediation Act requires solicitors to give advice on the mediation option before legal proceeding can be commenced. The essential innovation introduced by the mediation alternative is not the arrival of the mediator on the scene, but a decision by parties in conflict to face each other to discuss their differences. This opens the possibility for value added in the engagement of a third party to facilitate the process.

    I suggest that mediation reaches its full potential when the mediator is able to bring to the table a certain capacity that may be called a ‘presence,’ a personal stillness that is evident even in a highly charged setting. This attribute will be hospitable to the parties. It will also support what may be considered the particular ‘magic’ of mediation, a feature unmatched in the adversarial legal system. This is the right of a mediator to have confidential discussions with each party to the conflict. To the degree that the mediator’s energy is sufficiently receptive, a party will be encouraged to be frank in such meetings, to look at both sides of the case, and to recognize their own share in creating the conflict.

    The kind of energies called for in mediation are exactly opposite to the driven, ‘weaponised’ environment associated with legal processes. The quality of presence that I have referred to is not beyond anyone working in dispute resolution, but it needs to be cultivated. For some this may mean consistent Zen meditation or yoga or like practices (the body is always present), or long walks with the dog. A certain spaciousness is called for.

    To imagine that what is called for in mediation is a mere brokering role, or knocking heads together, is to misconceive the potential. And mediators need to remember that reference to what it might cost to have a legal case run through the courts’ system is a poor yardstick with which to measure the value of the service.

    ********

    A younger colleague who worked with me, who was generally considered to have ‘got’ mediation observed that she had come to realize that ‘mediation is mostly about doing nothing’.

    But then, as we know, a certain kind of non-doing can be very powerful.

    And as to selling the mediator’s expertise, there is a wisdom in the story of the famed Rabbi who consoled a young colleague disappointed at how few people were seeking his advice: ‘They come to me’, the great man said, ‘because I am astonished that they come, and they do not come to you, because you are astonished that they do not come’.

    Fergus Armstrong is a mediator and former lawyer: www.oneresolve.ie

    Feature Image: Maggie Armstrong

     

  • How Russian Internet Surveillance Operates

    The issue of data privacy is becoming a source of increasing individual and corporate unease with wide political ramifications. To that end the European Union’s General Data Protection Regulation (GDPR), which comes into force in less than two months, will attempt to harmonize and enhance data protection standards across the continent.

    Around the world governments actively monitor Internet communications. Here I examine Russia’s System for Operative Investigative Activities (SORM) that the government employs for the purposes of lawful interception of various IT and telecommunication systems.

    The original version of SORM was introduced in 1995, and allowed the Federal Security Services (FSB) to monitor phone calls and the Internet activity of users, despite the limited reach and functionality of Internet services at that time.

    SORM-1 was represented by special hardware furnished by the FSB that telecommunication operators were mandated to adopt within their infrastructures. The arguments used in favour of SORM-1 were around maintaining security in the public interest, at a time of considerable unrest in the country.

    As information technologies have matured in Russia, so have the technologies utilized by the government to oversee and, where the need arises, tame them. In 1998 a new version of SORM was released (SORM-2). This time it was required that SORM-2 be installed on the servers of Internet service providers, thus providing the FSB with oversight over all transactions passing through these servers.

    Subsequently, the scope of SORM-2 was further expanded to encompass monitoring of social networks and forum traffic. All operators were required to integrate this fully at their own cost. In addition, more governmental institutions and security agencies, apart from the FSB, were given leave to exploit the information-gathering-potential of SORM-2 (including the Police, Customs Authorities, Presidential Security Services and others).

    In 2014 the most recent version of SORM was deployed pursuant to a ministerial order issued by the Russian Ministry of Communication, with less than a one year deadline imposed for implementation. SORM-3 covers a wider range of online resources and activities, which may be subjected to targeted surveillance. These include, but are not limited to, users’ phone numbers, unique media access control addresses, as well as email addresses accessed from, for instance, mail.ru, yandex.ru, rambler.ru etc.

    Notably, SORM-3 resorts to a very comprehensive data processing protocol called Deep Packet Inspection (DPI), in which the content of each piece (packet) of data is thoroughly scrutinized, and rerouted accordingly.

    Ordinarily, in order to acquire specific data, the governmental agency in charge requires a court order. But operatives are under no obligation to present this to a raided party. Refusal to divulge data in the absence of a court order will get you nowhere. Moreover, while the court order is required to seize the content, metadata (the description and ancillary context of the data in question) may be collected in its absence.

    In 2015 the lawfulness of SORM was raised by the European Court of Human Rights in Zakharov v Russia. The Court held that SORM potentially violates Article 8 of the European Convention on Human Rights (a right to respect for private and family life), concluding that given the significant risk of SORM being misused, the Russian state had failed to provide adequate safeguards to eliminate its potential arbitrariness, as well as failing to arrange for suitable measures to prevent unwarranted scrutiny.

    At present, Russia is not the only county introducing far-reaching control of its IT and Telecommunication platforms. Systems that bear resemblance to SORM are already operating in the Europe Union with the European Telecommunications Standard’s Institute’s (ETSI) specifications, and in the United States through the Communications Assistance for Law Enforcement Act.

    Although targeted surveillance plays an important role in the prevention of crime, including terrorism, the full scope of governmental surveillance technologies are not clearly defined, either in Russia, or in other countries.

  • A Cost-Benefit Analysis of Life

    Harry Gleeson was wrongfully hanged for the murder of Moll McCarthy in 1941, and fully exonerated in 2015 after the case was re-investigated by the Innocence Project in Ireland.[i] Gleeson was framed by the police, with the collusion of elected representatives, for the murder of Moll McCarthy, by reputation a ‘lady of the night.’

    There followed what amounted to a show trial in which the judge and prosecution barrister concealed evidence, and conducted proceedings in a wholly inappropriate manner. On the eve of his execution Gleeson met his junior counsel Seán MacBride who, expecting an admission of guilt, instead was confronted with an assertion of innocence and plea that one day his name should be cleared.

    McBride was moved, and thereafter, having served as Minister for External Affairs between 1948 and 1951, campaigned against the death penalty. He was instrumental in setting up Amnesty International, for which he ultimately received the Nobel and Lenin peace prizes.

    Sean MacBride in 1986

    That case betrays the closed nature of Irish society in the 1940s. But with pervasive patterns of corruption, apparent state criminality, including targeting of individuals, can we say governance today has improved? The late Supreme Court Justice Adrian Hardiman gave a disturbing account of the conduct of ‘the force publique’ over the past number of years in his dissenting judgment in DPP v JC (2015)[ii], citing a former President of the High Court to the effect that ‘proper discipline has been lost from An Garda Síochána.’

    If anything, state-sponsored illegality may be worse than ever. Recently our police force, perhaps in collusion of Tulsa and the Department of Justice, subjected an innocent man, Garda Maurice McCabe, who was perceived as a threat, dissident or whistleblower, to an horrendous allegation of child sex abuse.

    Rather than being pensioned-off, high-ranking Gardaí and their lawyers, should be brought before a court capable of identifying a new species of crime, as occurred at Nuremberg after World War II. Framing people for abuse or murder is no ordinary offence, but amounts to a Crime against Humanity by agents of the state, a breach of an obligation ergo omnes, offending fundamental principles of Natural Law, and universal human rights.

    The crucial point about framing people for sex abuse, or indeed state-sponsored murder, is that it fatally undermines the integrity of the justice system. When the gatekeepers are themselves criminal, as was the case in Nazi Germany, or in Serbia under Milosevic, it erodes trust in government, and any sentencing should take into account this profoundly aggravating factor.

    Nuremberg Trials, 1946. Crimes Against Humanity.

    Radbruch’s formula

    In this context, it is notable (in Streletz v Krenz ECtHR, 2001[iii]) that East German Border Guards were retroactively convicted for shooting people as they escaped over the Berlin Wall; even though, at that stage, they could argue that they were merely complying with commands.

    The German Constitutional Court and indeed the European Court of Human Rights utilised the great anti-Nazi German jurist Gustav Radbruch’s formula that positive law must always yield to fundamental principles of morality. Any law compelling servants of the state to shoot fellow citizens – in circumstances where clear threats to public safety are absent – does not comply with fundamental principles of justice.

    The defence of following orders, which the Nazi official Adolf Eichmann had offered at his trial in Tel Aviv in 1961, is not available. Evil is evil, no less so for being the banal plea of a bean counter that he was merely putting people on trains. Perhaps we may one day also hear: ‘I was only doing my job working for Goldman Sachs.’

    Kenya

    In Kenya, my client Mr. Kimani has been on death row for seventeen years. While still a teenager he was caught on the same bus as where a brutal crime was being committed. Thereafter, he stopped at a restaurant and was arrested, brutalised and charged.

    During the ensuing trial he was provided with sub-standard representation (too mildly referred to as ‘ineffective assistance of counsel’) and, despite no meaningful evidence, the judge directed a decision of guilt, violating the presumption of innocence, which Lord Sankey described as ‘the golden thread of the common law’, in Woolmington v. D.P.P (UKHL, 1935). Thus his youth has bee snatched away after seventeen years on death row, prior to the ongoing intervention of the Innocence Project.

    My involvement came about after Elizabeth Kimani, a former student, visited me in Griffith College, where I taught at the time. She had just returned from Kenya, after a break of many years, where she had attended her sister’s funeral. There she discovered her nephew’s plight. She requested my assistance, and I consented after some deliberation. This resulted in a trip to Kenya accompanied by Michael Gallagher, a student caseworker, to present submissions to the then recently constituted Committee of Mercy in Nairobi, under the elegantly named, but dubiously relevant Power of Mercy Act, 2011.

    Nairobi, Kenya

    I arrived in Nairobi with a degree of trepidation, having heard it is the seventh most dangerous city on Earth. Thankfully, I was greeted by a waiting guide, who provided an armed guard and armour-plated vehicle to chaperone us through teeming streets to the secure sanctuary of the Stevroy Stanly Hotel. There followed a pause for breath, a quick shower, and then another three hour journey through the Rift Valley to Naivasha prison, perhaps the most hostile prison in all of Africa.

    When Michael and I arrived we were kept waiting for another three hours before the scheduled meeting with the Committee of Mercy took place in a small dark waiting area. It was no more than the size of a large kitchen, and contained at least ten prison guards in combat uniforms, who floated in and out with sub machine guns poised for action. At the end of what I think a not accidental ordeal, the hearing, which again took over three hours, was conducted in a packed room in circumstances of polite formality, but underlying hostility.

    The runes and smoke signals of an altogether different culture are difficult to interpret, but age and professionalism masked my nervousness. I proceeded to point out the utter improbability of my client having any involvement in the crime, with the aid of a clearly traumatised but remarkably articulate client, who despite being downtrodden was secure in his plea of innocence.

    Second Visit

    Circumstances beyond my control compelled a return flight the following day, but a second appearance over the summer was finally agreed. The issues of the original case were re-ventilated, including victim impact reports. The relatives of the crime were also allowed to express their distress, which had no bearing at all on the guilt or innocence of my client.

    Long hours passed before I requested a break for coffee and a cigarette: ‘Of course sir, please come this way’, I was told. I was then led through security checkpoints down from the sixth floor we were on, and driven half a mile up the road to the top floor of another building, where a dusty annex of a bar served as a smoking area.

    President Kenyatta had in fact banned smoking in all public places in Kenya and, I was informed by a senior government official that two American tourists had actually been arrested for lighting up in a public building the previous day. At the time the social impact of the crime of smoking in a public building seemed almost humorous to me by comparison with the distortion of justice inflicted on Mr Kimani.

    After this diversion, the Committee of Mercy asked me to draft a supplemental set of submissions, addressing a section that had not attracted attention. It enquired, notwithstanding my client’s innocence, whether he could fend for himself on the outside. This reflects recent trends in the administration of justice, symptomatic of a neo-liberal tendency to apportion human rights according to economic status, an evolution in the direction of homo economicus, on which more later.

    Since then there has been silence out of Kenya: reconstituted committees, dithering, managing of the message and now a power vacuum, during which Kenya has had no government, after an invalidated election. The fate of Mr. Kenyatta and his government, and by extension Mr. Kimani, hangs in the balance. So I await the long deferred outcome, more in hope than expectation.

    Born Free

    Thereafter I took a brief safari to see what wild animals survive, and encountered the wonderful Lake Naivasha. I also visited the former house of the writer of Born Free, Joy Adamson, and her husband, both of whom had been murdered by local vigilantes for their outspoken views. On both trips an informative guide issued a series of coded warnings.

    That very day, he said, the country’s most prominent human rights lawyer had been murdered at the behest of the government. He warned that our activities had attracted their attention too, and our movements were being monitored, a situation not altogether unfamiliar to me in Ireland. Aside from the pleasure of discovering the National Museum, and a truly fabulous flea market, it was with some relief that I boarded my plane out of the country, landing in another country with a Third World legal system: Ireland.

    Flying back, I was deeply unsettled by the outrage perpetrated on Mr Kimani, and the sinister weighing of his life post-release in terms of his economic status. I also dwelt on the murder of the human rights lawyer, and the desperate plight of wildlife, which constitutes ecocide. A light bulb went off in my mind, as I saw a common systemic source for all this injustice.

    I consider Goldman Sachs, along with certain other multinational corporations to be war criminals, as they have perpetrated Crimes Against Humanity and universal breaches, ergo omnes, of economicide and ecocide. Ruthless economic exploitation and environmental destruction work hand in hand. So let us convene a virtual reality Nuremberg hearing, a new International Criminal Court directed against the corporate criminals of the New World Order.

    It must remain a virtual for the moment as the perpetrators now manipulate the machinery of the state, but the wheels of justice keep on turning. Our Earth is in constant motion too, but humanity is playing its final rounds on a doomsday roulette wheel.

    Corporate criminals who design and profit from the excesses of human exploitation should be brought before international tribunals, along with those who would callously consign people to fend for themselves after unlawful incarcerations. At least, with the help of the Innocence Project in the US, after his exoneration Sunny Jacobs secured a measure of compensation, allowing her to open the Sunny Jacobs Centre on the not altogether sunny west coast of Ireland.

    Meanwhile, as U.S. Republicans luxuriate in destroying the welfare and administrative state, and a plutocracy attempts to secede from humanity, building safe havens against Climate Change, and boltholes in distant outposts, Mr. Kimani sees his life ebb away in the worst prison in Africa. We must hope the Committee of Mercy reconvenes quickly, and at least the stain of that singular injustice will be washed away, as, to quote Shakespeare’s Portia.

    Shakespeare’s Portia.

    The quality of mercy is not strain’d,
    It droppeth as the gentle rain from heaven
    Upon the place beneath: it is twice blest;
    It blesseth him that gives and him that takes:
    ‘Tis mightiest in the mightiest: it becomes
    The throned monarch better than his crown;
    His sceptre shows the force of temporal power,
    The attribute to awe and majesty,
    Wherein doth sit the dread and fear of kings;
    But mercy is above this sceptred sway;
    It is enthroned in the hearts of kings,
    It is an attribute to God Himself;
    (The Merchant of Venice, Act 4, Scene 1)

    At the same time we demand a broader interpretation of justice, with humanity on the brink of extinction: at current rates of degradation to top soil we have sixty years of agriculture remaining.[iv]

    As three-term former U.S. President Franklin Delano Roosevelt (1882-1945) put it: ‘A nation that destroys its soils destroys itself. Forests are the lungs of our land, purifying the air and giving fresh strength to our people.’[v] We require a new Nuremberg for Crimes Against Humanity and Nature, evolving our understanding of mercy and justice, “above this sceptred sway.”

    Crimes Against Humanity

    I recently visited Chartwell House, once the permanent residence of perhaps the greatest politician to have ever lived: Winston Churchill. To paint him as a latter-day saint would be wide of the mark, but to a large extent it was his conviction that Nazism was a distinct barbarism that ultimately led to the Nuremberg trials.

    In the wilderness years before World War II he was indeed a Cassandra voice. But any rush to judgment of our latter-day war criminals must be tempered with deliberation, thereby avoiding Herman Goering‘s charge at Nuremberg that ‘the victor will always be the judge and the vanquished the accused.’[vi]

    In Roy Jenkin’s view Winston Churchill was the greatest prime minister of Britain, and I would concur. But tell that to soldiers annihilated at Gallipoli or civilians firebombed in Dresden. He too was directly or indirectly implicated in Crimes against Humanity.

    It tends to be the little people who suffer, and away from abstract theorising, I will continue to lobby for the release of Mr Kimani. But let us still convene an International War Crimes Tribunal of the righteous holding to account corporate criminals, who endeavour to secede from the rest of humanity by retreating into gated enclosures.

    An indictment can proceed from their own memoirs, as such characters are generally shameless. Let them bear witness to their depredations, and let us signal to posterity our opposition to their infamy, for as the Czech novelist Milan Kundera attested the loss a historical memory involves a failure to confront tyranny.

    By drawing attention to their criminality, future generations may adapt, before it is too late for the natural world, and perhaps the likes of Mr Kimani may yet be welcomed back into society. Alas it is too late for Harry Gleeson, but at least he now may rest more peacefully.

    [i] Erin McGuire, ‘How Harry Gleeson was wrongly hanged for murder in 1941’, Irish Times, 6th of April, 2015, https://www.irishtimes.com/news/crime-and-law/how-harry-gleeson-was-wrongly-hanged-for-murder-in-1941-1.2165731, accessed 22/11/18.

    [ii] DPP v JC, Judgment by Hardiman J., [2015] IESC 31, http://courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/285b25317187412480257e280050f5b4?OpenDocument, accessed 22/11/18.

    [iii] Streletz, Kessler and Krenz v. Germany, ECtHR, 2001, http://hudoc.echr.coe.int/eng?i=001-59353, accessed 22/11/18.

    [iv] Chris Arsenault, ‘Only 60 Years of Farming Left If Soil Degradation Continues’, Scientific American, https://www.scientificamerican.com/article/only-60-years-of-farming-left-if-soil-degradation-continues/, accessed 14/11/18.

    [v] Untitled, ‘11 Forest Facts and Quotes to Tweet or Share’, April 20th, 2015, Worldwide Fund for Nature,  https://www.worldwildlife.org/stories/11-forest-facts-and-quotes-to-tweet-or-share, accessed 22/11/18.

    [vi] Gary Jonathan Bass, ‘Stay the Hand of Vengeance: The Politics of War Crimes Tribunals’, October 29th, 2000, The New York Times, https://archive.nytimes.com/www.nytimes.com/books/first/b/bass-vengeance.html, accessed 22/11/18.

  • Culture of Complaint

    Editor’s Note: The presumption of innocence is a hallowed principle central to the Rule of Law. Human rights lawyer and founder of the Innocence Project in Ireland, David Langwallner rails against a culture of Political Correctness that permits trial-by-media of alleged sexual offences, leading to a distortion of male-female relations. He identifies this with an all-consuming Neoliberalism, in which vendettas are pursued through false accusations – often for economic advantage – and where the parameters of permitted behaviour in courtship are sanitised to a point where men are being reduced to automatons. While strongly condemning the behaviour of Harvey Weinstein and his ilk, he argues that many of his accusers were willing participants, and only spoke out when it was to their advantage.

    David Langwallner receiving the prize from Miriam O’Callaghan for Pro Bono & Public Interest Team/Lawyer of the Year at the AIB Private Banking Irish Law Awards 2015.

    The late great art historian Robert Hughes penned an anti-political-correctness polemic in 1980 entitled Culture of Complaint. He argued that America was witnessing a pandemic of false sexual harassment claims, often leveled in corporate or institutional power games. At the same time, David Mamet, the legendary American playwright, wrote his Orleanna, a structured and more nuanced evaluation of the parameters of sexual harassment.

    I despise political correctness, and the dumbing down it has brought to personal relationships and public discourse. In many instances it has marginalised forthright criticism, protecting vested interests, who employ the tactic of character assassination.  Relationships between men and women are also distorted. The slide Hughes and Mamet wrote of in the 1980s, has today become an avalanche.

    No one in their right mind condones acts of sexual violence against men or women, or persistent harassment, whether sexual or not. Workplace bullying, moreover, is not always sexual. At any level, whether sex is the weapon or not, no one should sanction a breach of trust, or an abuse of power.

    We have witnessed all too many ageing multi-millionaire bulldog types, usually from the arts or politics, using the ‘casting couch’ to steer or negate career advancement, especially of women. Though it seems that if a reputation is truly satanic, such as Mick Jagger’s, that individual may escape condemnation.

    It should equally be noted, in the interests of balance, how long bright-eyed starlets were circumspect about blowing any whistle on Harvey Weinstein. It seems some were more than compliant in the toleration of his behaviour, and in some instances his advances, as long as it succoured and supported their careers.

     

    In many instances his accusers lack true moral grounds for condemning him now. Questions of guilt and attribution cuts both ways, a subtlety not grasped by the present snowballing hysteria of outing perverts and harassers. The crimes of the accused, whether real or not, are exposed amidst the hypocrisy of the accusers.

    Michael Colgan, the former Director of The Gate, our latest outing and a more sedate Harvey, is now being thrown to the wolves. In both cases it is noticeable that exposure only occurs once a power base has been eroded: Weinstein, after decades of success in independent cinema loses his Midas touch after a string of flops, and brewing financial difficulties; dwindling audiences at the Gate Theatre, meanwhile, may have contributed to Colgan’s downfall. Of course for some such as Mr. Polanski the glamour never fades and that is, in a perverse way, his protection.

    There is something very unseemly about the sight of this coup de grace ending the career of the ageing male. The final nails in the proverbial coffin. The killing of the once-prized bull by the matador media.

    After all Sir Edward Carson – in even more puritanical times –  and with at least a measure of compassion, refused to prosecute Oscar Wilde after the damage had been done in the civil case, which exposed his gay love affair with Lord Alfred ‘Bosie’ Douglas; by Carson himself of course, and with a good deal of vindictiveness, from one Trinity man to another.

    “The poor man has suffered enough”, he is reputed to have said. Standards of decency have plummeted since. No doubt a queue of lawyers are slavering at the prospect of successful actions against aging playboys.

    Edward Carson: ‘The poor man has suffered enough’.

    In a different context The French famously say ‘les absents sans toujours tort’, ‘the absent are always wrong’, or translated to this context the disempowered – compulsorily or not – are now easier prey for a slightly hysterical Witch hunt.

    Arthur Miller wrote one of his best plays The Crucible on that them, where religious and sexual hysteria – a toxic mix at work in Ireland – leads to an all-consuming madness of false allegations. Not that Weinstein appears to be innocent, but others may be. The point is that balance is lost once the story begin.

    Complainants who were amenable, or tolerant, in the past now seek to expurgate their involvement, cleansing their souls and conscience by shopping someone. Often, as was seemingly the case with former deputy Prime Minister Michael Fallon in The United Kingdom, to protect their own job. The issues of guilt and retribution are far from clear.

    Motivations are murky. As in the Mamet play, and indeed a Michael Douglas film called Disclosure (1994), sex allegations are often linked to political or corporate power plays. Saying someone has touched your knee inappropriately may save one’s job. It’s kill or be killed in our Neoliberal universe.

    The culture was of course different before the transcendence of political correctness, a greater laxity in personal conduct was tolerated, and both sides often participated in what might be deemed the immoral, generally sexual, pleasures of an uncensored society.

    It ill-behoves one side to scream from the citadel of innocence, and dress in the cloak of victimhood considering their consensual participation, and inculpation in some cases.

    That in no way exculpates, or should lead to toleration of, the practices of Mr. Weinstein, or even earlier, and more notoriously Mr Polanski, whom the French protect, as they seem to, all artists of significance, which is merely to note a peculiar national characteristic. For him, as was said of Benjamin Disraeli, the glamour never fades.

    Thus, the retrospective retributive justice by the kangaroo court of vox populi, and the dangerous menace of public avengers. The Rule of Law is being subverted and due process and forensic truth-seeking replaced with trial-by-media, whipped up by a populist clamour. Prosecution by smear, through innuendo, and ‘no smoke without fire’, even by falsehoods in some instances.

    None of this is helped by the psycho-babble of often pseudo-feminism, including the blathering of Hilary Clinton, reversing the burden of proof, and undermining the presumption of innocence. This antiquated feminist agenda dovetails very neatly with trial-by-media. Guilty in the court of public opinion before any charges are made and– as in the case of Garda McCabe in a different context – the manufacturing of guilt and suspicion by politically-motivated criminal and corrupt public officials.

    Careers are rapidly destroyed, reputations irretrievably damaged, without anything so troublesome as a court process, or even internal disciplinary procedures, where anonymity may be preserved.

    **********

    All of this is leading to a great disturbance and realignment of normal interactions between men and women.  Displays of attraction will be culturally realigned, such that communication of permission and refusal will be increasingly difficult to divine. 

    This will destroy much of the interesting texture of courtship and flirtation, displays of intimacy, and non-intrusive physical contact. A peck on the cheek or hand on the shoulder, may now be considered an act of violation. In American corporations, in some instances, employees who wish to date are required to sign a sex contract, detailing precisely what is consented to.

    This will magnify the mistakes and misunderstandings that often precede sexual congress, complicating the quest for a suitable mate, or ideal match. A sexually-programmed, robotic world beckons, appropriate for the preferred model of serf employees.

    I dislike intensely corporate cleanliness, fused with the family values of the religious maniacs of the U.S. Republican Party. A sexually ‘clean’ Neoliberalism, served up with great dollops of hypocrisy. A Corporatism requiring the worker to comply with stable domestic strictures on fidelity and religiosity.

    Sexual behaviour has been, and always will be, a disturbance of the ordinary and smooth processes of income accumulation. Deviation cannot be tolerated among a malleable workforce.

    Furthermore, in many instances an innocent man is the victim. False allegations against Cliff Richard and Paul Gambiccini nearly destroyed clean-cut, almost asexual, national treasures. It has become a penalisation of success, a titillating feature of the celebrity culture. An allegation of sexual deviancy may destroy a trade competitor, to gain a trifle of public recognition for yourself and reinvigorate a flagging career. A solipsistic ‘Me’ generation demanding Andy Warhol 15 minutes of fame.

    In this blood sport, the more talented and renowned the celebrity, the greater prize the scalp becomes. All the more opportunity for faked outrage against a fallen idol from plastic people, who equate success with one’s name appearing in the newspapers.

    It is also, frankly, a society rapidly becoming the obverse of Margaret Atwood’s novel The Handmaid’s Tale (1985), a dystopian tale following a Second American Civil War, where women are forced into sexual and child-bearing servitude. The new handmaidens are an increasingly de-sexed and under-the-thumb male population. Today all men except those under total control, display the Original Sin of perverts and harassers.

    Other expressions of public opinion, such as the film Fight Club (1999), have demonstrated this precarious male identity. What escape now for the domesticised American male, drawing his wage in an insidious corporate culture, where any degree of abnormality in courtship is impugned? The Irish equivalents of Fight Club remain the male debating society, binge drinking and that awful sport of rugby. In these arenas male aggression can flow uninterrupted.

    Irish male debating societies.

    **********

    Although Mr Weinstein and Mr. Spacey seem, at first blush, guilty, after trial-by-media, or at least to have a strong case to answer, I fear the whole onslaught will lead to a McCarthyite Witch Hunt, about which Miller’s play based around the Salem Witch Trials is a parable. The present hue and cry and that of over half century ago, are linked by a common plethora of false allegations, stoked by the religious and political Right for nefarious ends.

    Someone needs to turn this ship around, and quickly, before genuine expressions of male and female sexuality are distorted for good.

    Vive la difference as the French say. Not all flirtation and banter is harassment. Not all men are rapists. The pendulum has swung too far, and through the constant recourse to public titillation in the media, important ideas concerning the problems of economic and environmental catastrophe are side-lined. The bread and circus of sexual distraction is delivered in daily doses by red top and broadsheet alike.

    Michael Fallon is no Winston Churchill, but his fate recalls a story – apocryphal or otherwise – told of the latter being accosted under the influence as he entered the House of Commons by Lady Astor: “You are drunk Sir Winston”, she said. “I am”, he replied, “but I will be sober in the morning and you will still be ugly”; an undeniably sexist remark, which, in the present circumstances, would lead to a swift political demise for Britain’s war time leader.

    ‘Who’s a pretty girl’, Winston Churchill and Lady Astor

    This is a plea for moderation and balance, and for an appraisal of the true evils inherent to Neoliberalism; an appreciation that the very difficult road of reason, principle and fairness needs to be traveled; coupled with examination of the often willing participation of those leveling accusations. Too often, we externalise blame, excluding individual and collective failings, which, to reiterate, in no way condones genuine sexual violence or harassment.

    But let us not confuse fakery, contrivance and falsity with reality.

    Featured Image: Daniele Idini