Tag: part

  • Woody and Annie (and Others) Part I

    ‘I wish I could think of a positive point to leave you with. Will you take two negative points?’
    Woody Allen, from his stand-up comedy routine (1964)

    Consider the facts: French writer Annie Ernaux has an affair with a young man, thirty years her junior (she was fifty-four, he was twenty-four), and writes about it, in the recently published The Young Man. Therein, she flatly admits that she was simply using him solely for her own satisfaction, stating that she was with a younger man ‘so that I would not continually be looking at the timeworn face of a man my age, the face of my own aging. When A.’s face was before me, mine was young too. Men have known this forever, and I saw no reason to deprive myself.’ Also, ‘I felt as if I had been lying on a bed since age eighteen and never risen from it – the same bed but in different places, with different men, indistinguishable from one another.’ It is hailed as disarmingly honest in reclaiming female desire – as though we did not already know that women have always had desires, and do not really need to reclaim them because they never went away. Annie Ernaux is lauded. She has won the Nobel Prize, among other prestigious awards.

    Then there is the case of North American filmmaker Woody Allen: he has an affair with a young woman, thirty-five years his junior (he was fifty-six, she was twenty-one), and despite the fact that they married five years later, and have since adopted two daughters, and been apparently happy in their union for twenty-six years and counting, he is vilified as a predatory creep and possible paedophile, constantly mentioned in the same breath as charged and/or convicted sex-offenders Bill Cosby, Harvey Weinstein and Jeffrey Epstein. He now has difficulty financing his films in his own country, and has to do so abroad – notably in France. Amazon refused to distribute his 2019 film, A Rainy Day in New York, as ‘unmarketable’, resulting in a law suit for breach of contract. While some famous actors have stood by him, singing his praises, others have rushed to distance themselves from him, making clear that they regret having worked with him, and would not do so again. His memoir Apropos of Nothing was dropped by his original publisher, after protests from his ex-girlfriend Mia Farrow and some members of her family, and a staff walkout at the publishing firm, although it was subsequently taken up by another house. He has been blacklisted, or in the parlance de nos jours, ‘cancelled’. (Amusing titbit: the contribution of Allen and his wife to Hillary Clinton’s 2016 Presidential campaign was unceremoniously returned. The principle of ‘innocent until proven guilty’, and the requirement of due process, seemingly does not apply in Clinton’s legal framework.) This double standard needs scrutiny.

    Obviously, there are additional factors which serve to place Allen in an unfavourable light, and can be used to justify the opprobrium he endures. For one, the young woman he took up with, Soon-Yi Previn, was the adopted daughter of that ex-girlfriend, Farrow, who was still at the time his current girlfriend. For another, and far more damaging to his reputation, he was accused by Farrow, in the aftermath of the Allen/Soon-Yi relationship becoming public knowledge in 1992, of molesting his and Farrow’s adopted daughter Dylan, then aged seven, an accusation which resurfaced in 2016 in the wake of the #MeToo movement, and a 2021 HBO documentary featuring interviews with Dylan, Allen v. Farrow. In fairness, Ernaux’s young paramour was a fan (a male groupie?), not an extended family member, and she has never been accused of sexually assaulting a seven-year-old boy, much less the adopted son of her then boyfriend. But, the key word in the previous sentence, to my mind, is ‘accused’. (Echoes resonate of the reflexively eponymous 1988 Jonathan Kaplan film, starring Jodie Foster, in which she portrays a rape victim who struggles to get justice. Who, exactly, was The Accused?) Allen has been accused, but never charged, much less convicted – unlike Cosby, Weinstein and Epstein.

    It is not my intention here to delve into the copious mound of facts and opinions, claims and counterclaims, which surround this case, and are readily available elsewhere to those with the inclination to do the proper research. Such an approach would involve excessive quotation from the large swathes of television, newspaper and magazine interviews, statements and op. ed. pieces I have read (to say nothing of the social media onslaughts on either side), information which has long been in the public domain. The Allen/Farrow/Previn blended family imbroglio is too sad and sordid and multifaceted, the problems around the original accusation too byzantine – partaking of classical tragedy – to allow of a simple black and white interpretation, and we may never know the whole story, only the conflicting, partial versions. So I will be economical with my references, but hopefully not with the truth – as I see it. The trouble with presenting an argument from either side of this dispute is that, as with the majority of such issues, once a side is taken, all arguments become one-sided. However, while I hope to avoid the bulk of the ‘he said/she said’ discourse on this episode of the culture wars, I will allow myself the odd judgement, while trying to avoid being overly partisan. My own allegiances will soon become apparent, and in any case I have other matters to engage with here: mainly, societal attitudes to legal, large age gap relationships; and, also, the age old conundrum around the separation of the artist and the work.

    Let us pull from the pile this quote, if only because it pithily summarises the vast and seemingly endless debate around the Allen/Farrow debacle. Daphne Merkin wrote in her profile of Soon-Yi (New York Magazine/Vulture, 17/09/2018):

    With regard to almost every aspect of life in the Farrow household, Soon-Yi’s story, like those of her younger brother Moses and Allen himself, is strikingly different from what’s put forth by Mia and Dylan as well as their son and brother Ronan Farrow, the journalist who has written a series of high-profile #MeToo stories over the past year. I can’t pretend to know what actually occurred, of course, and neither can anyone other than Allen and Dylan. Even the judge who eventually denied Allen custody of Dylan opined that “we will probably never know what happened on August 4, 1992.” All of life is filled with competing narratives, and the burden of interpretation is ultimately on the listener and his or her subjectively arrived-at sense of the truth.

    People will choose sides, based on previous loyalties and ideological standpoints, often ignoring evidence and even succumbing to flimsily substantiated conspiracy theories. (Needless to say, Merkin herself has faced multiple accusations of bias, both as a long-term acquaintance of Allen’s, and as a #MeToo sceptic). Still, a few salient points, often ignored, deserve to be made in Allen’s defence on both (separate, but in many minds, related) counts: that of the inappropriateness of his relationship with, and possible grooming of, his now wife (who was his then girlfriend’s adopted daughter); and that of sexually assaulting his own adopted daughter.

    Allen is on record as stating that he had no serious qualms about his relationship with Soon-Yi. ‘I didn’t feel that just because she was Mia’s adopted daughter, there was any great moral dilemma. It was a fact, but not one with any great import. It wasn’t like she was my daughter,’ he told Time magazine in an August 1992 interview. ‘I am not Soon-Yi’s father or stepfather. I’ve never even lived with Mia. I never had any family dinners over there. I was not a father to her adopted kids in any sense of the word.’ Supporters will concur. Detractors will see in this attitude further evidence of the man’s deficient conscience, and questionable moral probity. It does seem that the romantic part of Allen’s relationship with Farrow was well over by the time Soon-Yi and he got together, at least according to the Woody and Soon-Yi side of things. Allen and Farrow were maintaining a loose union mostly for the sake of the two children they had adopted, and the one biological child they had had together. In December 1987 Farrow gave birth to her and Allen’s son, Satchel (now known as Ronan) Farrow. Farrow wanted to adopt another child in 1991, and Allen said he would not take ‘a lousy attitude toward it’ so long as she agreed to his adoption of Dylan and Moses, whom Farrow had already adopted by herself. In October of that year she adopted another Vietnamese child (who turned out to have disabilities Farrow could not cope with, and so was passed on to another adoptive family). Allen’s adoption of Dylan and Moses was finalised in December 1991, shortly before Farrow discovered that Allen and Soon-Yi were romantically and sexually involved, in January 1992.

    Soon-Yi’s version of events, and justification for them, is more or less the same as Allen’s. In August 1992 she wrote, in a statement to Newsweek, that Allen had never been a father figure to her, and that they had become friendly long after his romance with Farrow had ended, adding:

    I’m not a retarded little underage flower who was raped, molested and spoiled by some evil stepfather – not by a long shot. I’m a psychology major at college who fell for a man who happens to be the ex-boyfriend of Mia. I admit it’s offbeat, but let’s not get hysterical.

    This was repeated twenty-six years later, in that controversial 2018 Vulture interview with Merkin: ‘We didn’t think of him as a father. He didn’t even have clothing at our house, not even a toothbrush.’ She went on to say that she was ‘madly in love’ with Allen. ‘[I was] completely attracted to him, physically and sexually. I know he’d said that I’d meet someone in college, but I’d already decided,’ she told Vulture. ‘From the first kiss I was a goner and loved him.’ As Allen and Farrow had never married, and as Allen had never adopted Soon-Yi, their relationship was not illegal. Furthermore, at twenty-one, she was more than ‘of age’. Soon-Yi’s affirmations are, unsurprisingly, disparaged by the vilifiers, as the product of an impressionable young woman manipulated by her more worldly and high-profile partner, and who may even be suffering from Stockholm Syndrome. This interpretation finds its equal and opposite expression on the part of Allen’s advocates in the contention that Dylan was coached by Farrow into making her accusations of molestation, as the vindictive vengefulness of a woman wronged.

    However, in many ways, the propriety of Allen’s relationship with Soon-Yi is a red herring, when it comes to characterising him as a sexual predator. Although it should not need to be pointed out, apparently it does: when it comes to passing judgement on Woody Allen’s large age gap marriage in particular, or large age gap relationships in general, and whether or not the senior party – man or woman – is de facto creepy, Allen’s status as an accused (but, more importantly, uncharged and unconvicted) child molester is simply irrelevant, if only because paedophilia (defined as a primary or exclusive sexual attraction to prepubescent children), hebephilia (a primary or exclusive sexual interest in eleven to fourteen-year-old pubescents) and ephebophilia (a primary sexual interest in mid-to-late adolescents, generally ages fifteen to nineteen) are very distinct, not necessarily overlapping, preferences, with the later not considered by mental health professionals to be pathological. Twenty-one-year-old women are not seven-year-old girls. In other words, it would be entirely possible that Allen could have groomed Soon-Yi as an adolescent but not molested Dylan; and, vice versa, he could possibly have molested Dylan while not ever have been grooming Soon-Yi. One act would not substantiate the other. In addition, it is just as likely that neither act took place as that both did.

    Paedophilia itself is a compulsive behaviour: you do not suddenly start acting on paedophiliac impulses when you are fifty-seven-years old. Indeed, clinicians differentiate between paedophiles and child molesters, and ‘preferential’ and ‘situational’ child abuse, since not all of those with a sexual preference for prepubescents molest children, and not all child molesters are true paedophiles. There are motives for child sexual abuse that are unrelated to paedophilia, such as marital problems, the unavailability of an adult partner, or general anti-social tendencies – which does not, of course, mean that everyone who finds themselves in such situations is going to abuse children. Furthermore, paedophilia is a prenatal, genetic sexual orientation: people are born that way, rather like being born straight, gay, bi or trans. For this reason, there is no evidence that paedophilia can be cured. Such an endeavour would be a little like trying to ‘cure’ homosexuality through aversion therapy, one of the more shameful practices of the many to be found in the history of psychiatry. Instead, most therapies focus on treating paedophiles so that they refrain from acting on their desires. However, in the wider society, just as there was once no understanding, or at best condescension, for LGBTQ+ people or unmarried mothers (the phrase ‘single parent family’ had not even entered the lexicon), now there is none for paedophiles – only judgement and condemnation. Every generation needs a minority to hate on, even if it is demonstrably true that paedophiles do more harm to the vulnerable than LGBTQ+ or unwed Mums ever did. Remember: there was a time, not so long ago, when gay people were routinely considered to be a bunch of pederasts, and unmarried pregnant females were thought of as lascivious ‘fallen’ women, whose ‘innocence’ had been taken, or who had given it up too easily. Magdalen laundries were full of them.

    Allen had no previous record of sexual activity with children (which does not, of course, mean that it did not happen – nor would it be of much consolation to Dylan, if her accusations against Allen are true). Various studies have indicated that non-paedophilic offenders do tend to do so at times of high stress, have a later onset of offending, and have fewer, often familial, victims; while paedophilic offenders frequently start offending at an early age, have a larger number of victims who are more often than not extrafamilial, and are more driven to offend. Such classifications and terminology may be irrelevant to victims, but while the possibility that Allen is a very late onset, single incidence child molester remains, it is unlikely that he is a paedophile. His numerous relationships with adult, so called ‘age appropriate’ women would also militate against this diagnosis.

    For those unfamiliar with the bare facts, Allen was accused of one incident of molestation of a seven-year-old by the child’s adoptive mother, against the backdrop of the revelation of his legal relationship with another adoptive daughter of the seven-year-old’s adoptive mother, and the ensuing custody battle between him and the child’s mother for custody of the seven-year-old adopted daughter, and two other children, one adopted and one biological. He was investigated in two separate states, Connecticut and New York, and cleared in both. These investigations included both physical and psychological examinations of Dylan, and lie detector tests taken by Allen, which he passed. The Connecticut State’s Attorney did not press charges. During the investigation the Connecticut State Police referred Dylan to the Child Sexual Abuse Clinic of Yale–New Haven Hospital, which concluded that Allen had not sexually abused Dylan, and that the allegation was probably coached or influenced by Mia Farrow. After a fourteen month long inquiry, the New York Department of Social Services found ‘no credible evidence’ to support the allegation. Furthermore, Farrow’s legal representatives offered Allen the opportunity to have the abuse allegation remain private, in exchange for a huge payout to Farrow in compensation and child maintenance, which he refused. This hardly points to his having any sense of guilt, or an overriding desire to preserve his reputation.

    But then come the speculative caveats: the state attorney in Connecticut found ‘probable cause’ to prosecute, but decided against doing so because it would further traumatise Dylan, and because there was ‘reasonable doubt’ that a conviction was a certain outcome, as it had been impossible to reach the conclusion that the abuse had occurred. One of the social workers in the New York investigation was fired and replaced because he was in favour of charging Allen. I find this latter claim, with its implication that Allen was too powerful a figure in the U.S. film industry to face the full rigors of the law, what with his having many sympathetic friends, and having brought millions in revenue into New York City, vaguely ridiculous: if Harvey Weinstein, a much more powerful presence in the U.S. film industry, can be charged and convicted, then Woody Allen certainly can. If it was so easy for rich and powerful men to act with impunity and evade the justice system, then why are Weinstein and Cosby serving prison sentences, and why was Jeffrey Epstein in prison on remand (when he committed suicide), while Woody Allen is not? As regards Allen’s rejection of Farrow’s lawyers’ attempt at mediation, which involved financial payments in exchange for making the charge go away, his antagonists might argue that this was only because Allen did not want to be lumbered with paying out such a large sum of money to Farrow in what he considered to be an extortionate deal. Again, your explanations will tend to be determined by which side you have already taken.

    The opposition between Allen supporters who claim that Farrow coached and cajoled Dylan, and the Farrow supporters who claim that Allen groomed and manipulated Soon-Yi, sadly extends into the Farrow family itself. Moses Farrow, who was fourteen at the time of the accusations, and is today a forty-six-year-old psychotherapist, staunchly supports Woody and Soon-Yi. In a long blog post from May 2018 titled ‘A Son Speaks Out’, he makes detailed claims about how Mia tyrannised him into upholding her version of events, how Mia coached Dylan during the videotaped interview she did with her, and that initially taking Mia’s side before coming out against her when he was an adult (and therefore no longer financially dependent on her) was ‘the biggest regret of my life.’ On the other hand, Ronan (formerly Satchel) Farrow, aged four at the time and today a thirty-seven-year-old investigative journalist, staunchly supports Mia and Dylan. He continues to campaign against Allen, both in mainstream media outlets and on social media. On one side, Soon-Yi and Moses paint a picture of Mia Farrow as mercurial, violent and manipulative, given to outbursts of rage and cruel punishments, and the instigator of Dylan’s allegations against Woody, as revenge for his affair with Soon-Yi. On the other side, Dylan and Ronan defend their mother against attacks while continuing to assert that Woody molested Dylan.

    What those who take sides in the Farrow family feud generally do not take into account is that even if Mia was an abusive, controlling, bad mother, it is still conceivable that Woody Allen molested Dylan Farrow. One possibility does not negate the other. It just adds to the sadness. Equally, just because Woody Allen began an affair and since married a woman thirty-five years younger than him, who was his then partner’s adopted daughter, it does not automatically make him a paedophile, a molester, or even a groomer. A further strand in this tangled web is the possibility that Soon-Yi Previn could have been exacting a subtle form of revenge on her adoptive mother Mia Farrow, consciously or unconsciously, for what she perceives was an abusive childhood, by ‘stealing’ her boyfriend. What is clear, however, is that there is a marked difference between the accounts and outcomes of Farrow’s biological and/or Caucasian children, and those of her adopted and/or Asian ones, and the sides they have subsequently taken. So maybe she did play favourites, as many parents do, with undertones of racism.

    ‘What’s your favourite Woody Allen movie?’ So begins Dylan Farrow’s open letter to the New York Times of 01/02/2014, in which she reiterated her accusation of molestation by Allen. There has emerged a line of argument which attempts to find evidence of his grooming of Soon-Yi and –  bizarrely – his molestation of Dylan, in Allen’s inappropriate interest in teenage girls as displayed in his film work. While reference is made to a few snippets scattered throughout the oeuvre, such as when Rob, the friend of Allen’s Alvy Singer in Annie Hall (1977), in recounting an escapade in Los Angeles, declares, ‘Twins, Max! Sixteen years old. Can you imagine the mathematical possibilities?’, the chief culprit is the entirety of Allen’s 1979 movie, Manhattan, with its central storyline of a relationship between forty-two-year-old television comedy writer Isaac Davis (played by Allen) and seventeen-year-old high school student Tracy (played by Mariel Hemingway).

    Revisiting Manhattan forty-five years later, what is striking now is not only how all the other adult characters in the film are totally accepting of the couple in their social circle (save for a solitary  throwaway quip by Ike’s other love interest, Mary Wilkie (Diane Keaton): ‘somewhere Nabokov is smiling’), regarding it as at worst an eccentric but charming peccadillo, but also how garlanded with praise from both audiences and critics, as well as awards, the film was at the time of its release. Even as late as October 2013, Guardian readers were voting it the best film directed by Woody Allen. Clearly, Manhattan’s portrayal of a middle-aged man dating a teenager drew little derision back then, with the sole dissenting voice on record being that of Pauline Kael, who wrote in her New York Times review: ‘What man in his forties but Woody Allen could pass off a predilection for teenagers as a quest for true values?’ What viewers and so-called critics frequently do not realise about Annie Hall is that, despite the fact that it is narrated by the Woody stand-in Alvy, it is actually about a developing female artist (whose name gives the film its title) who outgrows an immature male partner. Similarly, with Manhattan, it is Tracy who imparts important life lessons to Ike, such as the closing advice ‘you have to have a little faith in people’. Manhattan only began to attract more negative analysis in the late 2010s, as Allen’s reputation again came into question after the rise of the #MeToo movement, and Dylan’s reiterated allegations. Societal attitudes have changed, but only relatively recently.

    As even those who find Allen suspect or downright creepy will have to admit, Manhattan came out at a particular point in history (which was pretty much most of history up to and surpassing that particular point) where the kind of relationship portrayed in the film seemed unobjectionable to many adults (male and female). Take, for example, the character of Randal P. McMurphy in Ken Kesey’s novel One Flew Over the Cuckoo’s Nest (1962): feigning mental illness, McMurphy is transferred from a prison work farm to a psychiatric facility because he thinks it will be an easier way to serve out his six month sentence. His crimes? ‘Drunkenness, Assault and Battery, Disturbing the Peace, repeated gambling, and one arrest for…’ Statutory Rape. He was never convicted, as the fifteen-year-old girl chose not to testify, possibly due to intimidation. However, McMurphy claims that the girl, ‘Said she was seventeen, Doc, and she was plenty willin’.’, and that her insatiable sexual appetite made him take ‘to sewing my pants shut.’ He continues his own defence by arguing that he was forced to leave town after the trial because, ‘that little hustler would of actually burnt me to a frazzle by the time she reached legal sixteen.’ The subsequent filmisation by Miloš Forman, released in 1975, is even more openly condoning of McMurphy’s sexual history (and readers who are easily triggered should consider themselves warned that perhaps it would be in their best interests to skip over this excerpt from McMurphy’s interview with the good Dr. Spivey):

    She was fifteen years old, going on thirty-five, Doc, and she told me she was eighteen, she was very willing, I practically had to take to sewing my pants shut. Between you and me, uh, she might have been fifteen, but when you get that little red beaver right up there in front of you, I don’t think it’s crazy at all and I don’t think you do either. No man alive could resist that, and that’s why I got into jail to begin with. And now they’re telling me I’m crazy over here because I don’t sit there like a goddamn vegetable. Don’t make a bit of sense to me. If that’s what being crazy is, then I’m senseless, out of it, gone-down-the-road, wacko. But no more, no less, that’s it.

    Presumably, Kesey as author, followed thirteen years later by scriptwriters Lawrence Hauben and Bo Goldman, thought that this crime was an acceptable one for a protagonist – whose status as a Christ-like figure is subtly alluded to throughout the narrative – to commit, and still remain a ‘good guy’, or even a secular redemptive saviour of sorts, however flawed. The reading and film audiences were in accord – if they thought about it at all – given the massive contemporary popularity of the book and film. Interestingly, Ryan Gilbey’s reassessment in the New Statesman on the occasion of the film’s re-release in 2017 appeared under the headline: ‘Watching One Flew Over the Cuckoo’s Nest again, I feel sorry for Nurse Ratched’, the character previously seen as the story’s arch villainess.

    But Tracy in Manhattan was not underage ‘jailbait’, to use the colloquial term for the temptation of sexual relations with minors. The age of consent in New York state was seventeen in 1979, and remains so today. (As of April 2021, of the fifty U.S. states, thirty have an age of consent of sixteen, nine at seventeen, and in eleven states the age is eighteen.) Thus, there is nothing illegal about Ike and Tracy’s relationship, as she is deemed capable of giving consent to sex with anyone else over the age of seventeen (save for cases of incest), with no so-called ‘Romeo and Juliet’ rules governing the age of her partner(s). Whether or not that represents informed consent is a matter for the legislature. (As we know from the political sphere, consent can be manufactured.) I would suggest that if the majority of a given society is of the opinion that a sexual relationship between a forty-two-year old and seventeen-year-old, or the portrayal thereof, is inappropriate, reprehensible, or criminal, then it is the current law which now needs to be changed, not the filmmaker or his work, retrospectively. After all, you cannot be indicted for a crime now that was not a crime then – in fiction or in reality. Well, maybe in fiction.

    Was Vladimir Nabokov a predatory, manipulative man because he wrote a novel about a predatory, manipulative man? Hardly, although Martin Amis, who averred ‘I bow to no one in my love for this great and greatly inspiring genius’ (in ‘The Problem with Nabokov’, The Guardian, 14/11/2009), cannot help but have queasy reservations about what he perceives as the ‘only significant embarrassment’ in the literary reputation of one of his writerly heroes, opining (in ‘Divine Levity’, Times Literary Supplement, 23/12/2011): ‘Of the nineteen fictions, no fewer than six wholly or partly concern themselves with the sexuality of prepubescent girls . . . To be as clear as one can be: the unignorable infestation of nymphets in Nabokov is not a matter of morality; it is a matter of aesthetics. There are just too many of them.’ What if Nabokov had been accused of sexual impropriety (as could happen to anyone, for a variety of reasons, especially those burdened with teaching fickle, entitled students in the humanities departments of universities, in order to earn a living), would the facts that he had written Lolita and that paedophilia features in five of his other novels have been held in evidence against him? Was Nabokov a creep because he wrote about creeps – at length? Doubtless, there are millennials who would like to see Lolita banned, just as there were Moral Majority types who wanted it censored when it was published in 1955 (by the Olympia Press in Paris, for fear of backlash in the Anglophone world). Senior publisher Dan Franklin has gone on record stating that he would not publish Lolita today, for fear ‘a committee of 30-year-olds’ would resign in protest because of #MeToo and social media.

    Granted, it is disingenuous to conflate opposition to abuse and harassment with unreconstructed Judeo-Christian prudishness about sex. But it still amounts to arguing that there are facets of human behaviour that are out of bounds for nuanced exploration by artists and writers. We have exchanged the rationale for the puritanism of one era for that of another – however well-intentioned both of them were and are. Lewis Carroll obsessed about a prepubescent girl in Alice in Wonderland and Alice Through the Looking Glass. Father/Daughter incest is a major theme in James Joyce’s Finnegans Wake. From Gravity’s Rainbow to Bleeding Edge, via Mason & Dixon and Against The Day, incest and paedophilia run like a fault line through the work of Thomas Pynchon. In these days of sensitivity readers, should we ban them all? Should they come with a health warming? If we accept that paedophilia and incest and sexual abuse of children in general are things in the real world, and that they are immoral, where does that put the morality of writing about the topics or choosing not to, or passing laws to outlaw or censor such material? Does choosing not to publish facilitate covering them up? Does choosing to do so serve in tacitly promoting them? Such writing is deeply discomfiting, as it was probably intended to be. You would probably not be well-adjusted if you did not find it so. One thinks of Judge John Munro Woolsey, who concluded in the New York trial of Joyce’s Ulysses for obscenity in 1933 that, ‘Whilst in many places the effect of Ulysses on the reader undoubtedly is somewhat emetic, nowhere does it tend to be an aphrodisiac.’ But did the good judge not suspect that the novel’s power as an emetic was in some ways dependent on its being aphrodisiac? Does it not all depend on point-of-view and direction of sympathies, both within and without the texts? And, if so, who is to decide what the point-of-view, and direction of sympathies, are? Who will judge the judges? But if you are really looking for a book to censor because of depictions of rape and incest, then why not start with the Bible?

    There is a large age gap relationship in Sophia Coppola’s film Lost In Translation (2003), which remains unconsummated. The precise disparity itself is left unspecified, but Scarlett Johansson was seventeen when she played the role of Charlotte, a recent Yale philosophy graduate in her early twenties, and Bill Murray was fifty-two when he took on the character of Bob Harris, a faded actor in his early fifties. That the mutual attraction is romantic in nature is made clear by the significant show of disappointment exhibited by Charlotte when Bob has a fling with a more age appropriate woman (equally adulterous, but that transgression is not the focus of our moral inquiry here). In her rather vanilla defence of her storyline, in an interview given as part of the twentieth anniversary of the film’s release, Coppola stated:

    Part of the story is about how you can have romantic connections that aren’t sexual or physical. You can have crushes on people where it isn’t that kind of thing. Part of the idea was that you can have connections where you can’t be together for various reasons because you’re at different points in life.

    But what if it had turned sexual? Would Bob have suddenly metamorphosised into a predatory creep? Certainly, certain sections of the commentariat would have it so. They even express misgivings about the relationship portrayed as it stands. It is unlikely that what is widely regarded as a Gen X cinema classic would garner such a warm reception were it released today, given the heightened awareness of gendered power imbalances in the movie business, and elsewhere. The film assuredly benefitted greatly from being released before online discourse consumed pop culture, as it would easily have fallen foul of debates about the ethics of age gap relationships if it came out in the age of X (formerly Twitter). Furthermore, what if it had been made by a man? What if it had been made by Woody Allen?

    I notice that I myself have now fallen into the trap of failing to distinguish between legal and illegal sexual activity. But perhaps that is because there is a large cohort of people who are of the opinion that associations which are currently legal ought to be illegal. And if that were to happen, such currently legal relationships would become much less common in fictional representations, as it would become much less of a burning issue, although not in the realms of fantasy fiction. The queasiness of taboo which applied to Lolita in its day would now apply to Manhattan – as, indeed, it already does, but with much greater force, as now both scenarios would be equally illicit. And what would be the fate of future attempts at such representations?

    The fact is, just as Annie Ernaux was attracted to a man thirty years her junior, older men have always been attracted to women much younger than themselves, for the very reasons Ernaux says motivated her in her attraction to a much younger man. This is entirely understandable, whether you are a man or a woman: after all, youth is beautiful and full of promise; age is ragged and full of compromise. Was Ernaux grooming and being manipulative? Probably not, as it was her lover who first wrote to her, although she may have taken advantage of his fandom to have her way with him. But that was just ‘reclaiming female desire’. Nor has she been the only one engaged in this pursuit. When it comes to writers, a nefarious bunch to be sure, consider this: Iris Mudoch had a (legal) affair with a student when she was forty-four and he was twenty-four; Angela Carter had a (legal) affair with a nineteen-year-old man when she was thirty-one; and Germaine Greer published a book entitled The Boy (2003) – a study of the youthful male face and form from antiquity to the present day – in which she wrote that the ideally attractive boy must be ‘old enough to be capable of sexual response but not yet old enough to shave. This window of opportunity is not only narrow, it is mostly illegal.’ The erotic reawakening of middle-aged and older women is the main theme of several recently published novels: in Susan Minot’s Don’t Be A Stranger (2024), Ivy Cooper is in her early fifties, while her love interest Ansel is twenty years younger; in Miranda July’s All Fours (2024), the nameless heroine is forty-five-years-old, and constantly fantasises about sex with whomever; and Julia May Jonas’s Vladimir (2022) (a sly nod to Nabokov), features an unnamed fifty-eight-year-old academic, whose husband has been accused of historic sexual misconduct with seven ‘of age’ students, lusting after a forty-year-old colleague. (Parenthetically, Anne Enright’s excellent early short story ‘Felix’ riffs, both stylistically and thematically, on a female Humbert Humbert, a forty-seven-year-old suburban housewife who has an affair with her teenage daughter’s boyfriend.)

    In the cinema world, the mother-of-all-cougars is the Simon and Garfunkel serenaded Mrs. Robinson, the older woman who seduces and has an affair with Benjamin Braddock in Mike Nichols’ The Graduate (1967). A then thirty-five-year-old Anne Bancroft was playing a woman whose age, although unspecified, was at least ten years older than that, somewhere in her forties, which is a sharp reminder of Hollywood’s standards when it comes to roles for leading actresses (or ‘female actors’). As the twenty-one-year-old Benjamin, twenty-nine-year-old Dustin Hoffman was in reality only six year younger than Bancroft. (Interestingly, the film also contains a false rape accusation, made by Mrs. Robinson against Ben, in order to thwart his relationship with her daughter, Elaine (Katherine Ross)). The older-woman-younger-boy trope later appears in Richard Eyre’s Notes on a Scandal (2006), itself adapted from the 2003 novel by Zoë Heller. The scandal in question concerns forty-one-year-old art teacher and mother of two Sheba Hart, who has an affair with one of her underage secondary school students, fifteen-year-old Steven Connolly. Paul Thomas Anderson’s Liquorice Pizza (2021) is a contemporary film depicting a twenty-five-year-old woman, photographer’s assistant Alana Kane, dating a fifteen-year-old boy, actor Gary Valentine. Todd Haynes’ May December (2023) features Gracie Atherton-Yoo and her husband Joe Yoo, who started a relationship in the 1990s, when she was a thirty-six-year-old mother of two and he was twelve. Gracie has spent time in jail for statuary rape, where she gave birth to Joe’s baby. When she was freed on parole they got married, had two more children, and are still together. The scenario is loosely based on the real life story of Seattle teacher and mother of four Mary Kay Letourneau who, aged thirty-four in 1996, seduced her twelve-year-old student, Vili Fualaau. Like Gracie, Letourneau spent several years in prison, and married a then of age Fualaau upon her release in 2005, and had two children with him. In Halina Reijn’s Babygirl (2024), CEO Romy (Nicole Kidman), a married mother of two daughters, embarks on a powerplay affair with her intern Samuel (Harris Dickinson). While how old they are is not specifically detailed in dialogue, the official screenplay indicates that their respective ages are forty-nine and twenty-five, a twenty-four year disparity. Furthermore, Kidman is fifty-seven while Dickinson is twenty-eight, making the leads’ real life age gap one of twenty-nine years. (As it happens, Kidman is no stranger to taking on such roles, as she portrayed similar older women involved with younger men in A Family Affair (2024), The Paperboy (2012) and To Die For (1995).) Reijn has promoted her film thus:

    If we see a movie where the male actor is the same age as the female actor, we find that odd. Which is insane. It should completely be normalized that the age gaps switch and that women have different relationships. We’re not trapped in a box anymore. We internalize the male gaze, we internalize patriarchy, and we need to free ourselves from it. It’s really hard.

    In real life, Madonna is sixty-five, her boyfriend is twenty-seven. Cher is seventy-seven, her boyfriend is thirty-five. Brigitte Macron is seventy-one, her husband Emmanuel Macron is forty-seven. Some of these relationships are legal, some are not, while some inhabit a grey area, depending on where and when they occur. But the middle-aged ladies are evidently horny for young male flesh, at least in these zeitgeisty cultural representations. The message is clear: having a toy boy is cool, whereas having a younger woman, it would seem, is not – or not anymore. What men have always known, and women are catching on to, to echo Ernaux, is that connubial domesticity is often a burdensome bore from which respite is required. Thus, for men, the acquiring of a mistress, or the discreet visits to the brothel, to supplement the mundane or meagre mollifications of the marriage bed. So, either women are just catching up and this is only equality in action, or else no older person, man or woman, should be allowed to cultivate such intergenerational romantic or sexual relationships in the first place. After all, what is sauce for the goose is sauce for the gander – or is it the other way around?

    CLICK HERE to read PART II of Desmond Traynor’s ‘Woody and Annie (and Others)’.

    Feature Image: G1AWGP Cannes, France. 12th May, 2016. Woody Allen, Soon Yi Previn Director And Wife Cafe Society, Premiere. 69 Th Cannes Film Festival Cannes, France 12 May 2016 Diw88737 Credit: Allstar Picture Library/Alamy Live News

  • Woody and Annie (and Others) Part II

    What’s my favourite Woody Allen movie? He has directed fifty, churning out one a year since 1982, maintaining a consistently high standard leavened by only occasional dross, so it can be difficult to choose. Another common phenomenon to be taken into consideration in this discussion is how fans of any artist who becomes ‘problematic’ are reluctant to believe anything derogatory about those whose work they admire, and are quick to leap to his or her defence, or at least to give them the benefit of any doubt which exists, in particular if the artist in question has been foundational and influential for them. This process always puts me in mind of the epigraph Nabokov chose for another of his novels, Pale Fire (1962), taken from James Boswell’s Life of Samuel Johnson (1791):

    This reminds me of the ludicrous account he gave of Mr. Langton, of the despicable state of a young gentleman of good family. “Sir, when I heard of him last, he was running about town shooting cats.” And then in a sort of kindly reverie, he bethought himself of his own favourite cat, and said, “But, Hodge shan’t be shot; no, no, Hodge shall not be shot.”

    Like many who first encountered Woody Allen’s work at a formative period in our lives and sensibilities, I tend to make a similarly mono-obsessional exception for him. According to sociologists’ shorthand, the standard demarcation dates for the Baby Boomer generation are those born between 1946 and 1964, while Gen X stretches from 1965 to 1979. But eighteen years is a long time, in which much social change occurred, and being born in 1961 (like Douglas Coupland, author of the novel Generation X (1991)) I have always considered myself on the cusp, partaking of stereotypical characteristics of both groupings, and disavowing others – an analysis which in any case is based on trends in the U.S. rather than the Ireland in which I grew up. Thus, I can relate more to the financial precarity of the Gen Xers than the monetary security and confidence associated with Boomers. This accident of birth placed me at what I now regard as a happy conflux, in which I am not defined by preferring The Eagles or Nirvana (the latter, obviously), but can isolate a point in 1976/77 when my musical tastes moved from prog rock and Bob Dylan and Joni Mitchell, via The Velvet Underground, David Bowie, Pere Ubu, Tom Verlaine and Patti Smith, to taking in the punk explosion of The Clash, The Sex Pistols and The Ramones, and on to the subsequent New Wave post-punk of Joy Division, Echo and The Bunnymen, Magazine, Wire, etc. Besides, when if comes to film, I detest Boomer touchstone The Big Chill (1983), and prefer anything from Blade Runner (1982) to Le Haine (1995) to Trainspotting (1996).

    Us late B(l)oomers/Early Gen Xers cut our sophisticated comedic teeth on Woody Allen’s ‘early, funny ones’ (to quote from his thinly-veiled self-critique in the Felliniesque Stardust Memories (1980)) such as: Take the Money and Run (1969): Bananas (1971); Play It Again, Sam and Everything You Always Wanted to Know About Sex (But Were Afraid To Ask) (both 1972); Sleeper (1973); and Love and Death (1975); which were screened late night on the newly formed Channel 4 in the early-to-mid-’80s. In the cinema we would have seen Annie Hall and Manhattan and Stardust Memories while still in secondary school, or starting to do whatever it was we did after leaving it, probably with our first girlfriends or boyfriends. Also on the big screen we would have caught A Midsummer Night’s Sex Comedy (1982), Zelig (1983), Broadway Danny Rose (1984) (‘I don’t mean to be didactic or facetious’), The Purple Rose of Cairo (1985), the latter-day Chekhovian Hannah and Her Sisters (1986), Radio Days (1987), and Crimes and Misdemeanours (1989). Into the ’90s there was Husbands and Wives (1992) (the last film of thirteen he made with Mia Farrow as lead actress), Manhattan Murder Mystery (1993) and Bullets Over Broadway (1994), followed by the incredible run of Mighty Aphrodite (1995), Everyone Says I Love You (1996) and Deconstructing Harry (1997). Then there are the overlooked gems like Celebrity (1998) and Sweet and Lowdown (1999) (overlooked only because they are surrounded by such unfailing brilliance). Into the new millennium there was a perceptible dip in quality, but there were still fine movies like Match Point (2005), Vicky Cristina Barcelona (2008), Midnight in Paris (2011), and Blue Jasmine (2013). Most of us would still find these celluloid treats as comforting and reassuring as the sparse white Windsor Light Condensed font over a black background title sequences and credits that Allen’s films have consistently used since the mid-seventies. Along the way we laughed ourselves silly at recordings of his standup comedy routines (I would particularly recommend his tale of mistaken identity at a costume party  involving  the Berkowitzes, ‘The Moose’, a model of quintessentially Jewish humour). We would notice that in Annie Hall Rob’s off-colour joke about the sixteen-year-old twins is perhaps tempered by Alvy’s counterweighting zinger, ‘Lyndon Johnson is a politician, you know the ethics those guys have. It’s like a notch underneath child molester.’

    Surely the guy who made those classics which contained these quips could not be a child molester himself?

    Everyone from Caravaggio (murder) to George Berkeley (slave ownership) to Alice Munro (returning to her second husband after his abuse of one of her daughters by her previous marriage – aged nine at the time of the assault – was revealed), via Picasso, Joyce and Beckett (plain old misogyny and purported domestic abuse), is now in the dock. Only today a headline in The Guardian catches my eye: ‘Cormac McCarthy had 16-year-old ‘muse’ when he was 42, Vanity Fair reports’, containing the information that, ‘(Augusta) Britt said the pair had sex for the first time when McCarthy was forty-three and she was seventeen.’ However, the same defence offered above of Allen, that the extraordinary work somehow pardons the culpability of the life, can be applied to all of these artistic and philosophical heroes and heroines as well. But then we must ask ourselves: what if the work does not measure up, or if we think it does not, or if we only come to think it does not because of the objectionably horrible life? What if, as is the case for us mere mortals, there is no artistic production or legacy at all to throw into the scales as a counterweight against the misdeeds? What of the accountant’s, the plumber’s, the refuse collector’s abuse?

    Creatives we like can and do say and do terrible things. The awful things they have said or done impinge on how we approach and appreciate their work. Or not, as the case may be: maybe we choose to go down the ‘separate the art from the artist’ route, in order to continue enjoying the work; or else take the opposite tack, deciding that no amount of stupendous cultural production and influence can justify vile actions. Personally, I am more exercised by Radiohead’s and Nick Cave’s flying in the face of the Boycott, Divestment and Sanctions campaign against apartheid Israel in the midst of the genocide it is perpetrating against the Palestinian people than I am about the unproven sexual proclivities of Woody Allen – to the point of removing their music from my life and not supporting them by buying tickets to attend their concerts. Which, of course, says more about me than it does about the bad things, and how I grade them. Tellingly, I grant Bob Dylan and Leonard Cohen a little more leeway: they may have played concerts in Israel, but they come out of a Jewish heritage, which makes it slightly more understandable and so forgivable that they would hold an allegiance to that settler state – not that they need my forgiveness. Plus, I am not about to give up listening to the songs of Bob Dylan or Leonard Cohen, because they mean more to me personally, and I am more invested in them, than in the work of Radiohead or Cave. The ratio on the dial of your ethical/aesthetic framework may vary. If you possess different taste, or are of a younger age, or think that domestic violence is just as bad or worse than mass killing of innocent civilians, then the reverse might well be true for you.

    And, while we are at it, what about the sins of omission? Where is world saviour Bono when we need him? While espousing a multitude of worthwhile causes worldwide, he is roaringly silent on Israel’s war crimes. Perhaps he is checking his investments, or worrying about his audience figures in the United States? At least artists do not run for election on platforms of moral rectitude, and then get caught with their pants down, as many politicians do, so there is less hypocrisy involved. But they may, in common with politicians, talk out of one side of their mouths in public, while acting in an entirely different way in private. It helps if artists are nice people. It helps if people are nice people. But nowhere is it stipulated that artists, much less other people, have to be nice. In addition, should artists be held to a higher moral standard than the average Joe or Jane Doe, as priests and nuns once were, because their work is considered more important than that of non-artistic labourers? Only if art is your religion.

    Let us focus for a moment on some artists whose critical and popular stock remains relatively high, despite the fact that their personal lives should not – all things being equal – get a pass by today’s more stringent, or more enlightened, moral standards. The highly revered Oscar Wilde paid for and fucked underage rent boys (or at least had some form of sexual relations with them), predicated on a class privilege of which he was probably only dimly aware (notwithstanding his great egalitarian essay ‘The Soul of Man Under Socialism’), or else did not mind exploiting for sexual gain – yet he is remembered by posterity as a persecuted icon of the gay rights movement. Elvis Presley fucked a plethora of underage girls – indeed to be favoured with his favours, you pretty much had to be fourteen, and there were a lot of fourteen-year-olds available to him and receptive to his attentions – but his position is unimpeachable as an icon of popular culture. John Lennon beat his first wife. Bob Dylan, whose record in terms of toxic masculinity with women is chequered to say the least, is reputed to have punched his first wife in the face during a row, after she came down to breakfast one morning in February 1977 to find him already at table with another woman and their children. The much loved David Bowie allegedly fucked an underage girl, the then fifteen-year-old groupie Lori Mattix, but this indiscretion is passed over in relative silence by those who deify him, both personally and professionally, in their posthumous hagiographic appraisals of his life and work. Indeed, Mattix herself does not seem to have been unduly traumatised by her defloration, stating in an 2015 interview, ‘Who wouldn’t want to lose their virginity to David Bowie?’ While there are some holes in her story (the same women who say ‘believe all women’ will simultaneously dismiss Maddix’s claim that Bowie slept with her as a minor, simply to defend Bowie’s legacy by slandering Maddix), Bowie himself admitted later in life that he was so perpetually coked up in his heyday that he was not overly punctilious about checking the birth certs of his casual lovers. So he may very well have slept with underage girls, even if he did not do so with Lori. This behaviour was something he deeply regretted and was remorseful for in his maturity, as is evidenced by his donating to several charities for victims of sexual abuse. Or maybe he just did that, entirely altruistically, because it was a good cause? Incidentally, Maddix also had a two year affair with Led Zeppelin’s Jimmy Page, starting when she was fourteen, which throws into question the chronology of her starfucking, and the true identity of her deflowerer.

    Thus, there are far too many inconsistencies in the post-#MeToo revisionist world for the attendant blacklisting and cancel culture to stick, or make sense. It is lynch mob mentality, and it is unfair and unjust. ‘I Believe Her’, while empowering genuine victims, can also be potentially dangerous. Apart from the fact that unscrupulous and conniving men can use feminist sympathies as a means of seduction in espousing it, it is a slogan and belief easily pivoted into a liar’s charter for unscrupulous and conniving women. Part of what makes it so fraught is that no one would want to be seen as condoning rape, or as an apologist for rapists (as Woody has said in interview, ‘Who in the world is not against child molestation?’), and any criticism of the movement can be construed as such, as can any questioning of the veracity of an accusation of rape.

    Also take into consideration that cancelation really only hurts the objects of its ire, and is an effective tool against them, if they are not as monolithically huge as Picasso or Elvis or Dylan or Lennon or Bowie. They are, as they saying goes, ‘too big to fail’, and can weather any storm. It is the little guys, usually living precariously rather than safely and securely dead – the debut artists, the non-tenured professors, the writers with only one or two publications – who stand to lose most. Woody Allen has suffered career setbacks and reputational damage, but he has survived and continued to work, mostly because of his previous track record of artistic achievement. His troubles stem, in part, from the annoying fact that, at age eighty-nine, he is still alive, rather than beyond the reach of scandal in death. It is the ones you have never heard of who are bearing the brunt of cancel culture, with the result that as of now you may never hear of them.

    The righteous anger and good intentions of #MeToo are also denigrated by its somewhat scattergun approach, and gross exaggeration. Australian comedian Hannah Gadsby may be some people’s idea of fun, with a ton of relatable personal trauma and resentment to catharise, but when it comes to her assessment of ‘men’, they are just as wrongheadedly chauvinistic as anyone who has wronged them. To quote from their one-woman show, Nanette: ‘They’re all cut from the same cloth. Donald Trump, Pablo Picasso, Harvey Weinstein, Bill Cosby, Woody Allen, Roman Polanski. These men are not exceptions, they are the rule.’ #NotAllMen, Hannah. Moreover, despite possessing an undergraduate degree in Art History, when it comes to art criticism they are a hectoring philistine. Gadsby may not be aware of songwriter Jonathan Richman’s humorous contention, in his eponymous tribute song, that, ‘Some people try to pick up girls and get called assholes/This never happened to Pablo Picasso/He could walk down your street and girls could not resist to stare, and so/Pablo Picasso was never called an asshole’, but if they were, they would give the sentiment short shrift. The It’s Pablo-matic: Picasso According to Hannah Gadsby exhibition they co-curated at The Brooklyn Museum last year, was an evisceration of Pablo Picasso based around the fact that he was not a very nice man to some of the women in his life. As an example of the insights to be gleaned, this is their commentary on the 1937 painting The Crying Woman: ‘The weeping woman appears in heaps and heaps of Picasso’s works in the 1930s, like, heaps and heaps and heaps. Heaps. I am not kidding, heaps. This is far from the best one.’ You may have been Mansplained, but have you ever been Gadsplained? The exhibition may have contributed to ‘the conversation’, but the curatorial commentary is little better than scrolling through some bot’s X (formerly Twitter) feed. Of course, you are free to throw all of Picasso’s work out of the western canon of visual art, or use it as an example of ‘degenerate art’ (as the Nazis did), based solely on the fact that he was a bit of a bastard love rat, if you wish. But why stop at him? Clearly, Gadsby does not. But their generalised assault of tarring all the men they list with the same brush is what weakens their partially justified argument: it is lazy, vacuous and wrong to compare Woody Allen to Harvey Weinstein and Donald Trump, or even to the much loathed Pablo Picasso. His is not a pattern of compulsive behaviour and abuse. As Allen said of himself in 2016, with no tongue visible in either cheek, ‘I should be a poster boy for #MeToo’ – a reference to the fact that, in all his years of working with famous female actors, he has never been accused of sexual impropriety by any of them. Even after the raked embers of Dylan’s reheated publicity, no further accusations have retrospectively been added to hers.

    It is argued by some that the ‘those were different times’ argument is no excuse, and by others that we should not apply today’s revised standards to the past. In the 1970s it was virtually de rigueur for famous rock stars to fuck teenage girls, and no one batted an eyelid, least of all the girls themselves. That does not make it right, just as the whole colonial project is now recognised for what it actually was: a giant, exploitative land grab under the auspices of spreading the benefits of civilisation and Christianity to backward peoples. But then why stop in the 1970s, or ’60s, or ’50s? Or, for that matter, the 1890s, or 1750s? Why not apply our newly-minted strictures to the entirety of recorded history, in the manner of Mao’s Year Zero, and dismantle once and for all the crumbling edifice of this vaunted western civilisation?

    The Berkeley Library in Trinity College, Dublin was recently renamed as the Boland Library, in a clear concession to contemporary fashion. What would happen if, in the coming years, Eavan Boland is called out, because she is discovered not to have been above reproach in some regard? And again, why stop at poor old slave-owning, eighteenth century idealist philosopher George Berkeley? Let us also cancel ancient Greek philosophers Socrates, Plato and Aristotle, and remove their busts from the Long Room Library, each of whom probably owned slaves, with the latter a positive defender of the practice (see his Politics 1254a).

    These philosophers lived in societies where slavery was a common, unquestioned, and accepted custom, the argument in their defence goes, and so their views must be understood within the historical and cultural context of their time. Which does not excuse their positions, but helps to explain them. (Interestingly, they also lived in societies which tacitly tolerated the practice of consensual pederasty, or paiderastia, usually between a teacher and student (see Plato’s Symposium, pretty much all of which is an extended bacchanalian seminar on the latent or active homoeroticism involved in pedagogy, even if Plato’s stated views on homosexuality changed noticeably from The Symposium to The Laws, and even if it is anachronistic to project modern ideas of sexual classification onto these ancient peoples, who would not have understood the concept of ‘orientation’ anyway, only situational ‘preference’; and who, equally, would have had no understanding of the concept of the ‘teenager’) – referenced, however inaccurately, by the character of Mickey (played by Allen) in Hannah and Her Sisters: ‘Jesus, I read Socrates. You know, this guy used to knock off little Greek boys. What the hell’s he got to teach me?’ – and which was chief among Oscar Wilde’s defences of his activities with underage boys, during his trials for ‘gross indecency’, as ‘that deep, spiritual affection that is as pure as it is perfect.’) But then why should ‘those were different times’ apply to them, but not to Berkeley? Because they are much further in the past? Because the abolitionist movement was gaining momentum in Berkeley’s time, and he should have known better, and is therefore on the wrong side of history? This argument takes no cognisance of the fact that although it may seem like a no-brainer today, the abolition of slavery was still very much a live debate in George’s time, with ostensibly sensible people to be found on either side of it – much like abortion, euthanasia or genetic engineering remain today, however much you may take one side in these arguments and demonise the proponents of the other. Indeed, as an Anglican bishop, were Berkeley alive today he would be obliged to take a strong stand against these practices. Besides, if the mighty mind of Aristotle could not conceive that there might be something fishy about slavery, even in the fifth century B.C., where would that place the relevance of his Ethics today? It seems to me to be a supreme show of colossal arrogance on the part of the present to expect the past to live up to today’s standards, especially when the cut-off point for what constitutes an acceptable aberration and what does not is often subjectively arbitrary.

    Secretly, I look forward to the Californian college town of Berkeley – also named after the eminent philosopher – also being renamed; and what more (in)appropriate soubriquet than Boland, since Eavan taught for many years down the road at Stanford? I wonder which rival Bay Area Big Game participant, the Golden Bears of public, liberal activist Berkeley or the Cardinals of private, traditionally conservative Stanford, will object more vociferously?

    Finally, spare a thought for the fate of the falsely accused, charged or convicted – embracing the acquitted over whom a pall of suspicion still hangs, because they could not be convicted ‘beyond reasonable doubt’. ‘Those were different times’ is matched only in the Catechism of Cliché by ‘There is no smoke without fire.’ Sometimes, even literally, there is lots of smoke without any fire. It goes by other names: gossip, hearsay, tittle-tattle; rumour, innuendo, insinuation; or, worse: calumny, defamation, backbiting. For the pedantic, Chemistry 101: many materials will smoke before reaching their ignition temperature. If oxygen is low or absent, fuels will smoke heavily without igniting. Just try lighting a stove or open fire, to observe this phenomenon empirically. Thus, the adjective ‘smouldering’, which frequently precedes the noun ‘hot’, as applied to things, or sometimes people. These days, the required oxygen is publicity, and is amply supplied by social media much more than by the traditional or legacy variety, thus greatly increasing its potency and unregulated spread, with the result that wild fires break out far more often, and can prove impossible to extinguish, or subdue.

    Cases of the use of ‘raped a white woman’ as a pretext for the torture and lynching of black men by racist white men in the southern U.S. states during the near century of the Jim Crow laws, where charges of sexual transgression were routinely fabricated, are both too common and too random to enumerate in detail here. This noxious nexus has been famously fictionalised in Harper Lee’s bestselling novel To Kill A Mockingbird (1960), set in Alabama in the 1930s. However, one of the most notorious miscarriages of justice of this kind occurred in Canada in 1959, long before the ascent of social media. Fourteen-year-old Steven Truscott was convicted and sentenced to death by hanging for the rape and murder of his twelve-year-old classmate Lynne Harper, in Clinton, Ontario, entirely on circumstantial evidence. Luckily, he was reprieved, and instead sentenced to life in prison. Owing to considerable public pressure, his case was reviewed in 1966 by the Supreme Court of Canada, who ruled eight-to-one that the jury ‘were satisfied beyond a reasonable doubt that the facts, which they found to be established by the evidence which they accepted, were not only consistent with the guilt of Truscott but were inconsistent with any rational conclusion other than that Steven Truscott was the guilty person.’ He was released on parole in 1969. Nearly half a century later, in 2007, his conviction was overturned on the basis that key forensic evidence was weaker than had been presented at trial, and key evidence in favour of Truscott had been concealed from his defending lawyers.

    In November 2013, following police interviews which began in February of that year, acclaimed English folk musician Roy Harper, then seventy-two, was charged with ten counts of alleged historical child sexual abuse of an eleven-year-old girl over a period of several years in the 1970s, and indecently assaulting a sixteen-year-old girl in 1980. After a two-week trial in February 2015, he was acquitted of the claims that he sexually abused the eleven-year-old and indecently assaulted the sixteen-year-old, but a jury failed to reach verdicts on other counts relating to the younger complainant, and so he faced a retrial. Then, in November 2015, the Crown Prosecution Service dropped the remaining charges, as there was not ‘a realistic prospect of a conviction’. Outside the courthouse, Harper gave the following statement:

    I have now been acquitted on all the charges that were brought. This case should never have gone as far as this, or taken so long to resolve. The psychological and personal cost to my wife and myself has been enormous and the financial cost hugely unfair. I lost my livelihood and I spent my savings … and more, on my defence. I realise these are difficult issues at this time in this society, and I thank my lawyers for standing by me and working so hard to show the truth. Despite coming out of this without a blemish on my name, I cannot recoup my costs and that’s left me incredibly angry. I’m now going to restart my working life where I left off nearly three years ago. I’d like to thank everyone who’s continued to support. Thank you, all of you.

    In September 2016 Harper started touring again, to celebrate his seventy-fifth birthday.

    The case of ex-Manchester City and ex-French international defender Benjamin Mendy is more contentious, given his hard-partying, unprofessional, playboy lifestyle and flouting of Covid lockdown restrictions, which surrounded the rape allegations he faced. (For a detailed report of the footballer’s initial trial and retrial, see this New York Times report, ‘The Benjamin Mendy court case, not guilty verdict and his future explained’, 15/07/2023.) Briefly, in 2021, Mendy was arrested on allegations of sexual offences by six different women – eight rapes, one attempted rape and a sexual assault – and suspended by City. He was acquitted of all charges against him in two separate trials in January and July of 2023. He was subsequently released by his club in June 2023 following the expiry of his contract. After over two years out of professional football, Mendy signed for then Ligue 1 French club Lorient in July 2023 on a free transfer (Lorient have since been relegated to Ligue 2 at the end of the 2023/24 season). As one of his defence lawyers, Eleanor Laws KC, stated in her summing up, ‘His life, as he knew it is over, in football, in the UK – these accusations, he will never escape. Look up Ched Evans, men who have been falsely accused, they never escape them.’ In November 2023, Mendy took Manchester City to an employment tribunal after claiming that he was owed millions of pounds in unauthorised wage deductions. He alleged that the club had stopped paying him in September 2021 after he was initially charged and held in custody. In November 2024 an Employment Tribunal found that Mendy was entitled to receive the majority of his unpaid salary. But his career in the top echelons of his profession had effectively been destroyed – some would say by his own entitled attitude and lack of dedication. Still, as he said himself, in his own defence in court, being a rich, famous footballer made it ‘honestly, so easy’ to pick up women at nightclubs and take them back to his gated mansion. As any wealthy individual with a high public profile will tell you, temptation exists and can be hard to resist. But many do, for the sake of what enabled them to attain such privileged positions in the first place.

    BBC broadcaster Paul Gambaccini was arrested in October 2013, following claims of historic sex offences against two teenage boys in the early 1980s. Then aged sixty-four, he was bailed seven times over the next twelve months, until the Criminal Prosecutions Office dropped the case against him in October 2014, due to ‘insufficient evidence’. In March 2015, upon being exonerated, Gambaccini claimed that he had been used as ‘human flypaper’ by prosecutors for almost a year, his arrest publicised in the hope that other people would come forward to make allegations against him and others, in the wake of the Jimmy Savile sex offences scandal, which shook the BBC to its foundations. He said he forfeited more than £200,000 in lost earnings and legal costs, due to being unable to work because of publicity surrounding the allegations, during the twelve months prior to police and prosecutors informing him that there was no case against him. He later won an undisclosed amount in a compensation payout from the CPO.

    Police raided the home of Sir Cliff Richard in 2014 as part of an investigation into an accusation of having had sex with a fifteen-year-old boy at a rally in Sheffield in 1985, while four other men subsequently also accused him of sexual offences, which they alleged took place between 1958 and 1983. Richard, then aged seventy-three, denied the claims and was never arrested or charged. One of the men who accused him was arrested in 2016, over a plot to blackmail the singer. According to newspaper reports from the time, after seeing the police raid on Richard’s home on television, the alleged victim threatened to spread ‘false stories’ unless he received a sum of money from Richard. In 2018, Richard was awarded £210,000 in damages for invasion of privacy, after suing the BBC for reporting that he was being investigated by police over the claims of historic sexual abuse. Richard spent around £4 million fighting the broadcaster, successfully arguing that the BBC’s right to report the facts of an ongoing investigation did not outweigh his right to privacy. A year later, in 2019, Sir Cliff received in the region of £2 million from the BBC towards his legal costs, in final settlement of the privacy case, although he contended that he was still ‘substantially out of pocket’.

    As an upshot of the false allegations against Gambaccini and Richard they launched a campaign, Falsely Accused Individuals for Reform (FAIR), which called for anonymity for suspects under investigation for sex offences, until they are charged. They argued that the time between a suspect being charged and a court case beginning would allow for further victims to come forward. Explaining their motives, Gambaccini said: ‘There are actually two crises – one is a sex abuse crisis and the other is a false allegation crisis. When you solicit more accusations, most of them turn out to be false’, while Richard added: ‘People can be evil enough to tell a lie about an innocent person. Despite no charges being brought against me, and despite winning my privacy case, I’m sure there’s still people who believe in that stupid adage ‘no smoke without fire’.’

    The standard Rape Crisis network’s response to such moves is that the ‘women lie about rape’ narrative is the product of a culture of misogyny, portraying women as manipulative. But that does not account for why men would lie about being molested. They argue that a not guilty verdict does not automatically mean there was a false allegation, it merely means that a jury did not believe there was enough evidence to decide ‘beyond reasonable doubt’ that a crime had been committed. This line of thinking chimes with Ronan Farrow’s continued pursuit of his father, Woody Allen. In a 2016 article in the Hollywood Reporter, Ronan castigated the media for giving a free pass to Allen, just because he has never been convicted: ‘It is not an excuse for the press to silence victims, to never interrogate allegations.’ They further argue that victims are led to believe that their day in court is their opportunity to be believed, but because the standard is so high it is difficult to impossible to prove an accusation ‘beyond reasonable doubt’. Plaintiffs then think that no one believed them, when the actuality is that they were not believed ‘beyond reasonable doubt’. They feel that they themselves have been put on trial, as rape is the only crime where the accuser’s behaviour is questioned as much as that of the accused. The suspicion follows that the forum of the court is not fit for purpose when it comes to trying cases of sexual violence.

    This difference between legal truth and true justice is nicely skewered in Susie Miller’s play Prima Facie (2022), in which Jodie Comer starred as Tessa, a ruthlessly competitive, self-confident young barrister from a working class background, who specialises in defending men accused of sexual assault. The tables are turned when she is assaulted herself, by a male colleague, and finds herself on the witness stand, face-to-face not only with the vagaries of the legal system, but also with a privileged, upper middleclass old boys’ network.

    However, the trouble is, once you start questioning and dismissing a jury’s verdict, or the competency of courts and the legal system in general, you are on a slippery slope into the anarchy of trial by media and mob rule. This is not to say that there have not been many well-publicised miscarriages of justice in the past, and not only in relation to sexual offences. But what is to be done if the rule of law, and the decisions of courts, are not widely respected and accepted, on this issue? Perhaps the burden of proof is set at too high a threshold in cases of rape, and the conviction rate in such trials remains astonishingly low in comparison to other crimes, but changing the law would require treating rape as radically different from every other crime on the statute books that is brought to trial (which is what Gambaccini and Richard also want, but from the defendant’s viewpoint). You cannot ask for special consideration if you are not prepared to see how it might also be granted to your adversary. It is, again, a matter for legislative and even constitutional reform, rather than constantly questioning the character of those who have been subject to the full rigours of the law, and not been charged, much less convicted.

    The law is murky. The stain remains, whether you are innocent or guilty, or are found innocent or guilty. In many cases there is almost as much reputational damage in being accused as there is in being found guilty. The law is indeed, in this regard, an ass. For how are we to choose, and should we even bother trying, between manifest misogynistic assholes (as their rampantly sexist WhatsApp private group texts made plain) such as the defendants in what has become known folklorically as the ‘Belfast rugby rape trial’ of 2018 (not guilty), and – ditto the pejorative adjectives – the Conor McGregor rape trial of 2024 (guilty), except to conclude that in both cases the competitive aggression required for their professional sporting activities has carried over into how they conduct their private lives? And how do we distinguish between such obvious reprobates – be they deemed guilty or not guilty by the courts – and the genuinely innocent, non-womanhating, falsely accused, whose reputations lie in tatters, despite never having done anything wrong, in justice or in law?

    To return to Canada, Margaret Atwood (yes, that Margaret Atwood, the one who wrote such foundational feminist eviscerations of the sexual politics of patriarchy as The Handmaid’s Tale and The Blind Assassin) makes the contradictions around this dilemma clear in ‘Am I A Bad Feminist?’, an op-ed which appeared in the Toronto Globe and Mail in January 2018, and which articulates arguments ventilated above in a more authoritative manner than I have, and is essential reading for anyone engaged by the broader ramifications of the debate around rape culture and legislation.

    The background to Atwood’s article is that in November 2015 Steven Galloway, author of the novel The Cellist of Sarajevo (2008) among others, and until then Chairman of the University of British Columbia’s creative writing programme, was suspended by the university for what it vaguely called ‘serious allegations’. An internal inquiry followed, conducted by Justice Mary Ellen Boyd, a retired female B.C. Supreme Court judge, which went on for months with multiple witnesses and interviews. On its conclusion, the UBC faculty association issued a statement ‘to clarify that all but one of the allegations, including the most serious allegation … were not substantiated.’  Despite the fact that the report had decided that there had been no sexual assault, Galloway was still dismissed from his post in June 2016, when UBC said there had been ‘a record of misconduct that resulted in an irreparable breach of trust’. The one substantiated claim was that he had had a two year affair with an ‘of age’ student – which was not technically forbidden by the university’s rules.

    In November 2016, Atwood’s name was among a large group of Canadian authors who were signatories to an open letter criticising UBC for carrying out its investigation in secret and denying Galloway the right to due process while also publicly naming him. It called for an independent investigation into his dismissal, as the report on which the decision to sack him was based had never been made public. Inevitably, this letter initiated an online backlash, particularly against Atwood, with the signatories now accused of pressuring abuse victims into silence. In 2018, Galloway was awarded $167,000 by UBC for the damage to his reputation and the violation of his privacy rights. He is now in the process of suing his accuser, along with twenty others who had spread the allegations on Twitter and within UBC, for defamation.

    Prior to ‘Am I A Bad Feminist?’, Atwood sent a statement to various Canadian media groups, comparing the process by which Galloway was investigated to the Salem witch trials: ‘Those accused would almost certainly be found guilty because of the way the rules of evidence were set up, and if you objected to the proceedings you would be accused yourself.’ She continued: ‘To take the position that the members of a group called ‘women’ are always right and never lie – demonstrably not true – and that members of a group called ‘accused men’ are always guilty – Steven Truscott, anyone? – would do a great disservice to accusing women and abuse survivors, since it discredits any accusations immediately.’ Her main immediate gripe in the subsequent ‘Am I A Bad Feminist?’ is against the lack of transparency surrounding Galloway’s sacking, and the fact that proceedings were conducted in hugger-mugger, a process she again compared to the Salem witch trials, ‘in which a person was guilty because accused, since the rules of evidence were such that you could not be found innocent.’ In response to her Good Feminist vilifiers, she wrote: ‘My fundamental position is that women are human beings, with the full range of saintly and demonic behaviours this entails, including criminal ones. They’re not angels, incapable of wrongdoing. If they were, we wouldn’t need a legal system.’ She elaborated:

    The #MeToo moment is a symptom of a broken legal system. All too frequently, women and other sexual-abuse complainants couldn’t get a fair hearing through institutions – including corporate structures – so they used a new tool: the internet. Stars fell from the skies. This has been very effective, and has been seen as a massive wake-up call. But what next? … If the legal system is bypassed because it is seen as ineffectual, what will take its place? Who will be the new power brokers? It won’t be the Bad Feminists like me. We are acceptable neither to Right nor to Left. In times of extremes, extremists win. Their ideology becomes a religion, anyone who doesn’t puppet their views is seen as an apostate, a heretic or a traitor, and moderates in the middle are annihilated. … Why have accountability and transparency been framed as antithetical to women’s rights?

    She further draws an analogy between ‘guilty because accused’ and the ‘Terror and Virtue’ phase of revolutions: ‘the French Revolution, Stalin’s purges in the USSR, the Red Guard period in China, the reign of the Generals in Argentina and the early days of the Iranian Revolution.’

    Again, the pile-on was predictable. A sample tweet read: ‘‘Unsubstantiated’ does not mean innocent. It means there was not enough evidence to convict.’ Which presumes guilt, just like the Salem witch trials and the other periods of extremist terror to which Atwood referred did. One thinks of rhetorically leading questions such as, ‘When did you stop beating your wife?’ Or of the Trials by Ordeal, for example Trial by Cold Water: if you sank you were not a witch, but risked drowning; if you floated you were, and could be burned at the stake. While sinking is preferable to being burned to death, is it still not much fun, even if there were ropes available to haul you out of the murky depths.

    One of the most appealing aspects of Todd Field’s film Tár (2022) is that at first sight it seems to be a simple tale of exploitative comeuppance, but on repeated viewings reveals itself as a rich, complex narrative which avoids taking sides. Tár refuses to resolve itself into either a parable of #MeToo justice (à la Emerald Fennell’s ‘All men are bastards, even the nice ones’ Promising Young Woman (2020), a slick, rape revenge, morality tale), or a tirade about the excesses of wokery and cancel culture (of which Kristoffer Borgli’s Dream Scenario (2023) is one of the more creditable manifestations, mainly because of its obliquely surreal framing). Initially, it is easy to dismiss Tár because there is something a bit self-fulfilling about presenting a titular central character so opposed to the extremes of identity politics (as articulated, somewhat reductively – although in many cases quite accurately – by a Julliard student in a masterclass Tár is giving as, ‘Honestly, as a BIPOC pangender-person, I would say Bach’s misogynistic life makes it kind of impossible for me to take his music seriously’), and then later having her revealed as a transactional, power-broking predator all along. But are the aspirational flunkies (or ‘millennial robots’ as the embattled Lydia Tár abrasively terms them – ‘snowflakes’ being the more common derogatory denomination) who surround her and plot her downfall any better? Thus, it is suggested that Id Pol functions as a distraction from class politics (Tár’s socioeconomic origins are eventually shown to be solidly suburban lower middle class, so she dragged herself up by her bootstraps, not only through innate talent, but by sheer force of will), which serves the status quo nicely. The third act of the film may even be read as a Gothic depiction of mental breakdown in the face of a brilliant and dedicated career which flounders and lies in ruins.

    Indubitably, women need to feel safe at all times, and to be able to go about their daily business and nightly socialising without unwanted, unwarranted attention and harassment from uncouth male braggarts. On the other hand, what is the future fate of flirting, or seduction, never mind romance, if signals are routinely misinterpreted because of changing standards with regard to what is acceptable attractional etiquette? Are these life-enhancing frissions destined to wither and die? And is it for the greater good if they do? Or are they evolving into something new and barely recognisable to the ‘Ok Boomers’ in the mutual incomprehension that exists between them and the new morality of millennials? Maybe a momentous metamorphosis is slowly taking place in human consciousness, a feminisation of society (or, at any rate, an equalisation), which would be a real dividend of feminism, much more so that the ‘woman in the boardroom’ brand, which tends to hold contemporary sway, and passes for progress. But such a revolution in gender relations will require a fundamental paradigm shift away from long ingrained psychosocial constructs of man as pursuer and woman as the pursued, men as taking or getting something and women as having something that can be taken or given away. Marilyn French may well have been right in the contention aired by one of the characters in her debut novel The Woman’s Room (1977), that rape or its prospect is the crucible in which gendered power relations take place, but the concept of consent remains problematic. Government advertising campaigns now encourage us to ‘Whatever the moment, have the consent conversation’, but the middle-aged husband in one such ad who smarmily inquires of his wife, ‘Fancy an aul early night?’ (which she declines, because, ‘Yeah, but it’s hard to get in the mood since the kids moved back in’) seems just as creepy to me as any ageing dime store Lothario hanging around nightclubs when he should be home by the fireside in his carpet slippers. ‘Consent’ takes little account of the moment when instinct takes over at the expense of rationality, and can constitute the death of a mutually consummated passion which has no need of litigiously binding words. Life may not be like the movies, but ‘having the consent conversation’ would ruin every ardent clinch in film history.

    It is impossible not to be moved by Dylan Farrow’s February 1st, 2014 open letter to the New York Times, in which she reiterated her claims of sexual assault by her adoptive father Woody Allen in the attic of the Farrow home in Connecticut, in August 1992. But there is a large lacuna in it that Dylan fails to address. What if her mother, Mia Farrow, is not the ‘well of fortitude that saved us from the chaos a predator brought into our home’, but rather a woman scorned, hellbent on vengeance, using her adopted daughter as a pawn in a greater power struggle? What if Allen was right in accusing ‘my mother of planting the abuse in my head and call her a liar for defending me’? The whole affair is ugly. But if the adult participants were not celebrities, it would have and should have remained a private matter of familial strife, and Dylan would not have been the hapless rope in a treacherous public spotlight tug-of-war between two famous former lovers, her adoptive parents. I have no doubt that Dylan sincerely believes that she was violated. I am still not at all convinced that she actually was. I think there is solid evidence that she was coached by her mother into believing she is a victim of child molestation. I think it is regrettable that Dylan Farrow’s entire life and career has been defined by the fact that she is convinced (or has been convinced) that she was molested by her famous adoptive father. Furthermore, I think the four-part HBO docuseries Allen v. Farrow (2021), directed by the documentarian duo of Kirby Dick and Amy Ziering, in which Dylan is interviewed extensively, was incredibly one-sided, presented as it is entirely from the perspective of Dylan and Mia Farrow and their family, friends, and expert witnesses. Its partisanship partakes of tabloid sensationalism, and Dylan’s case is ill-served by it. Woody Allen did not participate, although he defends himself in disembodied voiceover culled from the audiobook of his 2020 memoir Apropos of Nothing. Following the premiere of the first episode, Allen and Soon-Yi Previn released a statement denouncing the docuseries as a ‘hatchet job’.

    What is the current utility of ‘I Believe Her’ as a slogan? In the case under consideration it has mutated into an oppositional microcosm of ‘I Believe Woody’ (and Soon-Yi and Moses) or ‘I Believe Dylan’ (and Mia and Ronan). It has, as Atwood contends, morphed into a rallying cry for the witch hunting, bandwagon jumping element of the #MeToo movement. Besides, what people choose to believe has never seemed to me to be of very much import when it comes to evaluating the truth or falsity of said beliefs, dependent as belief is on faith, which has nothing to do with factual evidence, and is in many ways irrelevant and even antithetical to it. People believe all sorts of crazy things. People used to believe that the earth was flat and that the sun went around it. They were wrong, even if they were acting on the best available evidence at the time. If something can be proven it requires no faith, and belief is redundant. What people choose to believe is of interest only to themselves, or for what it reveals about them to others.

    Why does the mob hate Woody Allen? Is it because he had an affair with and married a woman thirty-five-years his junior, who was his then-girlfriend’s adopted stepdaughter? Is it because they believe he sexually assaulted his own adopted seven-year-old daughter? Or both, because they think there is some connection between the two? As I hope the foregoing might conclusively demonstrate, the first supposed reason is neither here nor there, as this relationship was legal and, besides, he is hardly the only one – man or woman – to do it. The second supposed reason has never been proven, so it remains in the realms of conjecture, and amounts to his word against that of his accuser – his accuser being as much his acrimoniously estranged ex-girlfriend as the vaunted victim. As for the third, there is no demonstrable connection between these two acts (except that the child molestation accusation may have been initiated as a vengeful response to the humiliation caused to the senior accuser by the new relationship coming to light), so why are they conflated in the mind of the mob?

    The ultimate question here is: even if Woody Allen was guilty of one act of child molestation with his adopted daughter (and it should be clear by now that, taking all the angles outlined above into consideration, while there is still room for doubt, I think he was not), would that be enough for me to boycott him and his work? The answer here is: ‘No’. As Anne Enright wrote in ‘Alice Munro’s Retreat’ (New York Review of Books, 05/12/2024):

    I have read Munro all my life, and reading her again in light of these revelations, I find that I cannot take back my great love for her work; it was too freely given. Jenny Munro described her mother as “a dedicated, cold-eyed storyteller” and said: “Whether people love her fiction or hate it doesn’t matter. Andrea’s truth is here to stay.

    As is Dylan Farrow’s. As is Woody Allen’s. Just as devotees of Cormac McCarthy’s portentously homespun novels will overlook his grooming and seduction of a vulnerable teenager, just as fans of Allen Ginsberg’s Beat poetry will turn a blind eye to his membership of NAMBLA (The North American Man/Boy Love Association), just as those who cannot countenance a world without the art of flawed human beings like Wilde, Picasso, Elvis, Dylan, Lennon or Bowie as mentioned above, my admiration for the films of Woody Allen is too immense, his worldview so influential on the development of my own sensibility, for me to renounce them now, whatever he may or may not have done.

    We have all done things of which we are less than proud (even if that does not encompass child abuse or rape), and not done things of which we would be proud (like calling out toxic behaviour). The well-chosen title of Philip Roth’s novel of campus accusation and fall from grace is The Human Stain (2000) (just as the well-chosen title of J. M. Coetzee’s novel of campus accusation and fall from grace is Disgrace (1999)): we are all guilty – of something, even if we do not subscribe to the Christian doctrine of original sin, because we are human. Maybe it is time to cancel the whole world, and all of human history, Terror and Virtue style, and start all over again. Allen has borne the hysteria and dogmatism that obscures real debate, the equal inanity of ‘All men are potential rapists’ and ‘#NotAllMen’, what Roth called ‘the ecstasy of sanctimony’, what Coetzee challenges with the question, ‘Do you hope you can expiate the crimes of the past by suffering in the present?’, in this new puritan age of extremes. The least that can be hoped for is that the cancellers have enjoyed themselves; the most is that it will lead to the eradication of the grosser conduct which inspired their militancy. Unquestionably, one cannot read about the appalling crimes perpetrated by Dominique Pelicot on his wife Gisèle in the Provencal village of Mazan, France, over a nine year period, in complicity with upwards of fifty other men, without feeling utter revulsion, and despairing for how one half of humanity can behave towards the other. But maybe such evil will always exist, however much we strive to eliminate it. After all, murder – mass or otherwise – has never gone out of circulation. I doubt it ever will.

    As for Woody’s large age gap marriage with Soon-Yi and its origins, essentially I think large age-gap relationships, if the younger party is ‘of age’ in a given jurisdiction, and no matter the gender of the older and younger parties, are no one else’s business except that of the two people involved in them. After all, young women are not little girls (although some would argue that young men are still little boys). In the case of Woody and Soon-Yi, at least he claims to love his much younger lover – unlike Annie Ernaux. If you believe him. Vile, execrable, family man Woody Allen. Marvellous, candid, promiscuous Annie Ernaux. Allen gets a vilifying bad press. Ernaux gets a laudatory free pass. Go figure. One of the coarser ironies of the whole sorry situation is that the longevity of their relationship, instead of vouchsafing its validity, has rather acted for many as a constant reminder of Allen’s supposed original transgression, which reminds them in turn of his supposed subsequent one, and served to keep both in the public eye.

    Here is the clincher: when Mia Farrow married Frank Sinatra, she was twenty-one, and Frank was fifty. That short marriage was followed by one to composer and conductor Andre Previn, when she was twenty-five and he was forty-one (and married to singer/songwriter Dory Previn, who famously wrote a song, ‘Beware of Young Girls’, about Mia breaking up her marriage). I am not suggesting that Woody and Soon-Yi was karma, but such scenarios were not unprecedented in Mia Farrow’s life.

    To offer a completely unblemished example of a positive older man/younger woman coupling, from personal experience: my great friend Éilís Ní Dhuibhne (writer, scholar and folklorist of distinction) was twenty-four when she married her dissertation supervisor, Bo Almquist, who was forty-six, twenty-two years older than her. It was one of the most fruitful and happy unions I know of, a true meeting of minds. Two people in the same place, at the same time, interested in the same things: it is only natural that sparks are going to fly, whatever their respective ages.

    Woody Allen, now eighty-nine, knows that the first paragraph of his obituaries will mention the Allen/Farrow conflagration, and the accusation of child molestation. As he has said in interview, ‘I assume that for the rest of my life a large number of people will think I was a predator’, continuing, ‘Anything I say sounds self-serving and defensive, so it’s best if I just go my way and work.’ Yet he is no Jimmy Savile, so why should he be treated as though he were a serial abuser hiding in plain sight, and accorded the same pariah status? Nor is he a Harvey Weinstein, Bill Cosby, or Jeffrey Epstein, and he does not deserve to be pilloried as such, and thrown in prison. Allen has endured because he made his work and family his priority. Farrow concentrated on vendetta and revenge. I will still remember him as the incredibly witty, wisecracking, klutzy, neurotic nebbish, mischievously poking fun at ludicrous authority figures and highly qualified ‘experts’, who first graced our screens in the ’70s and ’80s, and whose comic genius remains undimmed, whatever calumnies he has suffered, even if they were not calumnies, or whatever crimes and misdemeanours he has or has not committed.

    Feature Image: G1AWGP Cannes, France. 12th May, 2016. Woody Allen, Soon Yi Previn Director And Wife Cafe Society, Premiere. 69 Th Cannes Film Festival Cannes, France 12 May 2016 Diw88737 Credit: Allstar Picture Library/Alamy Live News.

  • Covid-19: ‘The North Began’ Part II

    Northern Ireland has already conducted a statutory inquiry into how Covid was managed. In contrast, the Republic is set to have a ‘review’ without statutory powers to compel witnesses to attend. This despite the Republic having had both a relatively high fatality rate and punitive restrictions that don’t appear to have worked. Maybe there is something to be learned from the Orangemen?

    In a seminal 1913 article entitled ‘The North Began’, the renowned scholar Eoin MacNeill opined that the rest of the island of Ireland could learn from the approach then adopted by Ulster Unionists in setting up the Ulster Volunteer Force. Ultimately, this led to the creation of the Irish Volunteers, ostensibly to protect Home Rule, then supposedly imminent, but which also contributed to the emergence of the Irish Republican Army after the Easter Rising of 1916.

    MacNeill’s argument comes to mind with the recent announcement of a limited ‘Review’ into how Covid-19 was managed in the Southern Irish state – and also regarding how the experience of life during Covid differed from the North, especially for Dubliners, who were significantly disadvantaged.

    Who can forget – amid frenzied reports of hospitals being overrun in Italy and China by a new infection – this state going into lockdown as a ‘temporary’ precaution? A mantra quickly adopted was to ‘flatten the curve’ referring to the Rate of Infection, with every citizen encouraged to adhere to ‘social distancing’ rules until the health system was ready to absorb the expected surge.

    Having cut ICU beds after the Crash, the twenty-six county state was poorly placed by comparison with most of its E.U. counterparts to deal with expected surges.

    The Irish ‘Plan’

    Yet, for once, the Irish state did have a properly planned response (‘Ireland’s National Action Plan in response to COVID-19 (Coronavirus) Update 16th March 2020’) – having previously modelled responses to pandemic scenarios. Essentially, it was envisaged that third level institutes would be closed – as occurred – with field hospitals opened in these large, idle facilities. It was, on paper at least, a great plan.

    With any ‘Irish Plan’, there were two distinct pathways to follow. The first involved attempting to follow the ‘Zero Covid’ approach adopted by New Zealand, which sought to keep Covid off their islands altogether by requiring international passengers to remains for a specified period in quarantine facilities prior to any stay in the country. Then there was the so-called ‘Swedish Model’, which emphasized protection of the vulnerable, while minimising restrictions on personal liberties.

    Neither of those models were pursued in Ireland. Instead, we developed a strange hybrid with an emphasis on ‘a top-down, command-and-control approach.’

    Once an estimated 10,000 Irish racegoers took a round trip to the UK to witness J.P. McManus’s horse run in the Cheltenham Races whatever slim chance the ‘Zero’ option had of success evaporated. Incidentally, this large migration occurred with the approval of the Chief Medical Officer, Tony Holohan, who also ordered care homes to re-open in March, 2020.

    Instructively the Irish plan was based on an assumption that ‘6% of people may become more seriously infected and will require hospital care.’

    It is now clear that this figure was much exaggerated, based on flawed Chinese data, and generated undue fear. Moreover, early statistics on Covid hospital admissions seem to have included patients who tested positive for the virus, but were admitted for something else, as well as those who caught the virus while in hospital being treated for another condition.

    Many of those hospitalised ‘with Covid’ may have been asymptomatic, due to the sensitivity of the PCR test. As an important article in the New York Times from August 2020 put it: ‘Your Coronavirus Test Is Positive. Maybe It Shouldn’t Be.

    Sweden

    In these circumstances, the Swedish Model was harshly criticized as uncaring, and it was said that the disease would spread like wildfire. Yet, in hindsight, it seems to have been the lesser of evils.

    Alas, there is still no consensus as to the cumulative total of fatalities that occurred in the different European states. Nonetheless, even sources that seem less favourable to the Swedish approach, such as the ‘Worldometer’ table on Wikipedia, rate their death toll as lower than Ireland’s per capita, despite a significantly older population. There were 1,860 Reported Deaths per million happening there, as opposed to the 1,980 here. (Original source: https://www.worldometers.info/ coronavirus/?utm_campaign= homeAdvegas1. See Wikipedia table, ‘Statistics by country and territory’: https://en.wikipedia.org/wiki/ COVID-19_pandemic_in_Europe).

    Another metric provided by the Organisation for Economic Co-operation and Development, ranks the Scandinavian nation lowest for overall cumulative excess deaths among a number of countries studied from 2020-22, at 6.8 per cent. By comparison Australia had 18 per cent, the U.K. 24.5 per cent, and the U.S.A. a rate of 54.1 per cent.

    In retrospect, it is plausible that the ‘Irish Plan’ might have co-existed with either the Zero or Swedish approaches. Based on what was known at the time, it may have been worth trying a Zero approach initially. It probably would not have worked – not just because of a porous border with the North or membership of the European Union – but also because it seems that Covid-19 was already circulating in Europe as early as March, 2019.

    Normalisation of House-Arrest

    Intelligent leadership adapts to changing circumstance, and so, with the likely failure of the Zero-Covid approach, the Swedish model could – and should – have been adopted by the autumn of 2020. Had the Irish authorities adhered to their own plan, by that time, the universities would have been functioning as field hospitals. Yet that’s not what happened.

    Instead, ‘temporary’ lockdowns, introduced in March 2020, were gradually normalised into a weird form of house arrest. Rather than lasting a few weeks, these ‘temporary’ measures would dominate our lives for almost two years. It was an unprecedented, draconian suppression of civil liberties, which became more tyrannical and absurd as time passed by.

    The ‘new normal’ was to live within two kilometres of home, later extended to some five kilometres. All social activities were banned, bar a clap in one’s garden to thank ‘front-line’ staff. Meanwhile, Irish care homes – where air is often stuffy and poor quality – were left to fester with full occupancy, as sick elderly patients were released from hospitals. Consequently, the level of mortality that occurred in these institutions was second only to that of Canada during the first wave.

    That the Taoiseach at the time of outbreak, Leo Varadkar, had previously been a medical doctor, was an initial source of hope that we would be guided by competent leadership.

    Empty hospitals, however, such as Baggot Street and St. Bricin’s in Dublin, continued to lie idle. Elected representatives, including Varadkar, effectively devolved leadership to NPHET (the National Public Health Emergency Team for Covid-19). which was composed almost entirely of career civil servants – arguably with little ‘skin in the game’ if businesses were shut down – but whose pronouncements came to be treated with the same reverence as was once accorded to the Catholic hierarchy. Throughout that period their evaluations decided our destinies in ways that often seemed ridiculous.

    Image: Daniele Idini

    Science becomes religion

    Holohan’s decision to appoint Professor Philip Nolan – ‘The pair had known each other for years’ – to oversee disease modelling ought to have prompted concern. Nolan was then President of Maynooth University, his ‘research was in physiology – specifically the control of breathing and the cardiovascular system during sleep.’

    With limited apparent research background or expertise in infectious diseases, Nolan’s wayward models – and bizarre commentary on antigen testing – informed Irish government decisions throughout the pandemic.

    According to the authors of Pandemonium: Power, Politics and Ireland’s Pandemic (2022), ‘almost everyone who attended NPHET meetings agreed on one thing above all others: this was a Tony Holohan production.’ An unnamed source in that publication described his style as ‘very dictatorial and autocratic,’ and ‘intolerant of alternative views.’

    Science became the new religion. Yet the measures often seemed scientifically questionable. Thus, in line with WHO guidance a positive PCR test within twenty-eight days of someone dying was listed as a Covid fatality – even if that poor individual had died in a car crash!

    Meanwhile, ‘stay safe’ became ‘stay sane’ for many of us who watched scarce resources dwindle, as the normal conduct of business was prevented. Sadly, little adaption to challenging circumstance occurred in line with ‘the science’.

    Who can forget the moral panic that ensued in the summer of 2020? Thus, tabloid photographers cunningly used long range lenses to foreshorten the view of people at beaches. Despite people sitting apart, it looked as if they were on top of one another. Subsequently, in January 2021 it emerged that not one case of transmission could be traced to the beach ‘outrages’ when assessed by the U.K. authorities.

    ‘The Republic guarantees religious and civil liberty’?

    The Irish state was set-up a century ago to prevent the coercion of Irish citizens. Notably, the fourth paragraph of the 1916 Proclamation asserts:

    The Irish Republic is entitled to, and hereby claims, the allegiance of every Irishman and Irishwoman. The Republic guarantees religious and civil liberty, equal rights and equal opportunities to all its citizens, and declares its resolve to pursue the happiness and prosperity of the whole nation and of all its parts, cherishing all of the children of the nation equally, and oblivious of the differences carefully fostered by an alien Government, which have divided a minority from the majority in the past.

    Ergo the social contract on which this Republic is based ought to protect personal freedoms, within bounds. Yet, instead we had unprecedented and clearly disproportionate restrictions imposed on us by our own government. It seems that being ‘the best in the class’ mattered most of all to Irish politicians in terms of accepting dictates from European masters.

    EU leadership?

    Meanwhile, disastrously, leadership at the European level was sorely lacking: Rather than providing positive guidance to adapt to the reality that Covid was effectively endemic by the winter of 2020, the European Union supported lockdowns, a milder model of that first trialled in that great bastion of liberal democracy: the People’s Republic of China.

    Hence the Germans banned outdoor markets – even though outdoor trade should have been encouraged. Meanwhile, only at the last minute did the Austrian government abandon the idea of forcing injections on recalcitrant civilians. Thus, it seems logical that there should be a proper inquiry into how Covid was handled at the E.U. level, as well as in each member state.

    The unwillingness of the President of the European Commission Ursula von der Leyen to release communications with vaccine manufacturers, including text messages with Pfizer boss Albert Bourla, also raises serious questions regarding transparency.

    In Ireland, the utter incompetence of Boris Johnson in the U.K. provided lasting cover. He was memorably, if somewhat bizarrely, compared to a rogue shopping trolley creating chaos about the place.

    A regular refrain on Irish media, and in private conversations, was that ‘at least we’re not as bad as the Brits’. Thus, instead of finding ways to enable the maximum amount of people to live their lives as normally as possible, officialdom largely adopted a ‘no can do’ approach. At times, it almost seemed as if the state broadcaster was intent on terrorising the population into submission.

    Irish Constitution

    In such a challenging period, thoughts of God might may have come to mind. In line with the sentiments expressed in the 1916 Proclamation, Article 44 of the Irish Constitution of 1937 protects practice of faith from obstruction.

    Unlike care homes, churches and temples are typically tall spacious venues with plenty of fresh air. There was little scientific basis for banning people from attending such places, provided certain measures were adopted – including ensuring adequate ventilation, personal space, and adapting rituals pertaining to communion and hand shaking.

    In my view, the state was obliged to vindicate these rights. After all, what is the point of a constitutional right if serious efforts are not made to adhere to it in challenging circumstances?

    Instead, essential freedoms were extinguished at the stroke of a pen. Thus, by early 2021, twelve months into the pandemic, what were effectively inmates of the twenty-six counties were being subjected to the most stringent restrictions on personal freedoms in Europe.

    Lockdown gains?

    It may be recalled that during Covid, there was talk about ‘building back better’; that society would become more compassionate; that we would have a notably better health system afterwards Today, little of that seems evident.

    Indeed, under questioning in September 2020 from Michael McNamara TD in the Dáil, Taoiseach Micheál Martin revealed that just twenty-three ICU beds had been added since the start of the pandemic.

    The impact of shutting down the construction trade for long periods should also not be overlooked. Homeless figures are now at an all-time high – amid huge levels of emigration, much of this in response to the state’s desultory attitude towards housing. All of this despite Ireland being the least densely populated state in the E.U., and supposedly among the richest.

    Nonetheless, in both Cork city and Dún Laoghaire, earnest efforts were made during Covid to adapt and advance neighbourhoods by way of enhancing their public domains – thus facilitating local trade and improving amenities.

    What then was the experience of Dublin City? As the main place of work for the country’s civil servants, the city centre was all the more quiet for their absence. While the country was undergoing the most severe of lockdowns in Europe, Dubliners were, to all intents and purposes, singled out for the most repressive regime of all.

    Along with ‘front-line workers’, anyone involved in agriculture or food production during Covid was effectively exempt from restrictions on movement. Hence, it was the urban populations who were particularly hampered in the course of their normal lives – while many of their rural counterparts experienced much less difference, apart, obviously, from children being kept at home from school.

    Despite it being well-established by 2021 that it was safe for people to socialise outside, March that year saw ordinary decent Dubliners being harassed by police for drinking outside in parks by the River Dodder – instead of gathering inside, where infection would more likely occur.

    A few stretches of cycleways were added along Werburgh and Nassau Streets – with unsightly plastic bollards inserted there and elsewhere. Public toilets were provided in an ugly kiosk outside the Stephen’s Green Shopping Centre – despite purpose-built public toilets being sited only sixty metres away inside Stephen’s Green, that the Office of Public Works keeps locked-up.

    The only serious civic gain during that time was the pedestrianisation of Capel Street, and a small amount of pedestrian pavement being widened elsewhere.

    Decline of Dublin

    Otherwise, Dublin’s city centre clearly stagnated. A small vignette: throughout the entirety of Dublin 1, there is only one public glass recycling bank sited at Shamrock Street in Ballybough. That is obviously disastrous in terms of under-provision for such a densely populated area.

    Coincidentally, every year, the Irish Times reports on the IBAL Litter Survey which repeatedly finds Dublin’s north inner city to be the worst in the state. Yet, during the ‘Covid Years’, City Council management actually moved to close down this one glass recycling facility! Fortunately it was saved in September 2022 – but only after intervention by councillors, (Alas, no reports in the Irish Times about any of that.)

    Meanwhile, cops on the beat became far less visible around the inner city. There were regular reports of gang fights occurring around the quays as a thuggish culture festered, culminating in the notorious Dublin Riots of October 2023.

    A lasting perception of inadequate personal safety has eroded public confidence, which has resulted in people avoiding town – further undermining the commercial viability of many of the businesses based therein.

    Thus, the city centre is clearly now in crisis; once bedrock establishments of the city’s premier core around Stephen’s Green, such as Shanahan’s on the Green and Café en Seine, have either closed down or have seen profits halved.

    The commissioning of a report last year by the government regarding O’Connell Street – while doing little else obvious otherwise – does not inspire confidence.

    The prospect of an accountable elected City Mayor with powers has long been held out by central government as a logical solution for the city’s management. Yet just like the airport railway that has been repeatedly promised since the early 1970s, I’ll believe it when I see it.

    Failure to adapt

    Ultimately, the initial response by responsible citizens to adhere to extraordinary state rules in a time of crisis was abused beyond belief. On this, the neoliberal economist Milton Friedman was proven right: nothing becomes so permanent as a ‘temporary’ government programme.

    Any hopes of the state responding to Covid in a progressive manner gradually evaporated. Official guidance regarding mandatory facemasks was never properly updated – despite clear evidence that the effectiveness of basic blue ‘surgical’ masks was minimal, at best. Had people been made aware of the efficacy of different mask types – albeit a secondary consideration to good ventilation – it would have enabled citizens to better manage their risk exposure.

    Meanwhile, the arrival of low-cost, antigen Covid tests for home use offered an obvious way forward. People would have a quick way of identifying whether they would pass on the virus – and could act accordingly. Remarkably, however, NPHET’s Philip Nolan pronounced on Twitter that these were being offered by ‘snake-oil salesmen’!

    Fortunately, outside eyes were watching. Harvard epidemiologist, Professor Michael Mina, brought some sense to proceedings by tweeting back at Nolan ‘For an advisor to your government – you don’t appear to know what you are talking about’, adding, ‘The comment adds nothing of benefit and further sows confusion. You should be ashamed of your demeanour here.’

    Regime Media

    So much media space was bought by the state by way of advertisements, it was Herculean. Unsurprisingly, counter-arguments were not encouraged, as few outlets were prepared to question the official line.

    In hindsight, it is remarkable to consider the emphasis placed on encouraging individuals to take – and indeed coercing them into taking through passports – vaccines. The miraculous benefits of Pfizer, Moderna, and Astra-Zenica were all widely publicized at the time. Yet, the vaccine trials were not actually set up to prove they would either prevent transmission or serious illness.

    When Astra Zenica was taken off the market entirely early last year, arising from ‘rare but serious’ side-effects, media coverage was muted. Meanwhile, the Johnson and Johnson vaccine has also been withdrawn from the market in the United States – but yet again, there seems to have been little reportage here on the magic shot being discontinued.

    So, where were the brave journalists questioning what was happening at the time, or now for that matter? Aside from photos of naughty social occasions that leaked onto the internet, commercial media organs essentially competed with one other to be the first to publicize official edicts. There is little reason to suspect any difference in future. Other than a few honourable exceptions, it seems what we have in this country is a propaganda apparatus, as opposed to a free media.

    The pronouncements of NPHET were all that mattered. Nine euros was sanctioned as the minimal spend when eating out – presumably because Covid was waiting for an eight euro offer?

    All the time, people delayed necessary health checks and procedures – initially ‘to flatten the curve’ – and so critical conditions may have gone untreated. Others put on weight through inactivity.

    There was also the undoubted impact on many people’s mental health, as after a few months, the grim reality of forced isolation, without-end-in-sight, pushed many towards the edge. At least in part, such factors may explain Ireland’s highly elevated mortality in the wake of Covid. All this underlines the need for a robust inquiry into the state’s management of that period.

    Any Accountability?

    It seems to me that the cumulative effects of Ireland’s Covid response surely did more harm than good. Now, if this state is to do its job properly in future – if we are to learn anything from that dystopian time – it is essential to conduct a transparent and rigorous assessment of the response.

    The effects of that period were pronounced and are, to some extent, ongoing. For example, it is notable that the number of recipients of sick benefit in England and Wales has increased by 38% since Covid. How does that tally with the experience here? Lacking powers to compel witnesses and documents, how can the state’s Covid ‘Review’ properly assess impacts of its response during that time?

    I fear nothing will be learned from this Review, as it lacks the necessary powers. Yet where are the elected representatives who should be demanding the proper statutory inquiry that is necessary?

    Without such a process, if we ever encounter a similar challenge, it is worrying that the state’s agents – ‘the permanent government’ of civil servants – may fail to have due regard to fundamental constitutional rights.

    Game On (for some)

    Memorably, with restrictions on sports, almost all facilities were shut down – despite most activities being held outdoor. Notably, golf and hill-walking were prohibited – even though these presented the least threat of exposure to an airborne virus.

    As time went on, some allowances were made for certain sporting bodies – such as the GAA. Again, Dublin benefited least, as that body’s membership is disproportionately rural.

    By year two, the emergence of a two-tier state seemed fairly clear, with the GAA allowed to have over 40,000 spectators from Mayo and Tyrone attend the All-Ireland Football final in Croke Park on September 11, 2021 – at a time when many businesses in that part of Dublin were closed down.

    The decision-making process that allowed the match to take place was notable, as the ‘new’ freedoms were only announced retrospectively – with a press statement issued on September 9th stating: ‘From 6 September, indoor events can take place with 60% of the venue’s maximum capacity, provided all the people attending are fully vaccinated or have recovered from COVID-19 in the past 6 months’. Did the GAA know something that the rest of us didn’t when arranging the fixture?

    Party On

    Only later did it emerge that as early as June 2020, the Department of Foreign Affairs on Stephen’s Green were hosting soirées in spite of the rules – well before Boris’s notorious Christmas Downing Street parties later that same year.

    Meanwhile, a retirement gathering in RTE featuring some of the best known presenters on the station, was found to have involved five breaches in relation to Covid 19 advice, protocols and regulations.

    Memorably, an apparent sense of entitlement also extended to then E.U. Commissioner Phil Hogan, who was forced to resign in August 2020 after being caught breaking the rules by playing golf and having supper afterwards. And with that, went the best opportunity Ireland had to influence E.U. affairs at its most senior level.

    Even a year later, little seemed to have been learned, when it emerged that the former Minister for Children, Katherine Zappone, had held a party on July 21 for around fifty attendees in the garden of the Merrion Hotel. But that was all happily resolved when the Government Press Office released a statement a fortnight later stating that the Attorney General was of the view that it was permissible for outdoor gatherings of up to 200 people.

    How can such carry-on occur in a proper democracy? It seems that rules could be retrospectively interpreted differently if required.

    Justice for the Plebs

    Yet the leniency shown to ‘the few’ sharply contrasts with the dogged pursuit of ‘the many’. For the outrageous crime of spreading the Lord’s Word, in December 2022 three Evangelical Christian street preachers were prosecuted for holding an outdoor event beyond five kilometres of their homes the previous year. Consequently, those three men each now have criminal records – having never had them before.

    As of August 2023, it was reported that there had been a staggering 13,000 prosecutions under the Health Acts against Covid offenders – and yet even today, this madness has seemingly not stopped!

    Only this week, in February 2025, the trial date has been set in April for the prosecution of the so-called ‘Dubai Two’ who allegedly broke quarantine rules during that period. Thus. two young mothers face the prospect of a month in jail and a €2,000 fine.

    Where is the Republic that ‘guarantees religious and civil liberty, equal rights and equal opportunities to all its citizens’ as per the 1916 Proclamation?

    Vaccine vs Liberty?

    Based on that experience, it is impossible to ever again trust the state to ‘suspend’ civil liberties. What reward was there for compliance?

    Let’s not forget that only the day before the 2021 GAA football final, it was reported that 90% of Irish adults were fully vaccinated. Yet, a mere four days later, Holohan was out again warning that further lockdowns were on the agenda – as indeed occurred, with restrictions only ending fully in February 2022.

    So then, if the vaccines were so effective, why then were we again subjected to lockdowns after much of the population had been vaccinated? Either the vaccines worked, and subsequent lockdowns should not have occurred – or else the vaccines were not so effective, and the emphasis put on mass inoculation was incorrect. This argument needs to be addressed.

    Even with the high rates of vaccination and diminished threat, as late as January 2022, members of NPHET were contemplating force injecting the small minority outstanding.

    All of this points to the need for public confidence to be restored – by way of a robust evaluation as to how matters were managed. It is now five years since Covid began, and three since it ended; people’s memories will be getting hazy.

    RTÉ: Rewarding Failure?

    And what of the media apparatus that helped ensure compliance in the population? The year after Covid ended, the wheels came off the wagon of RTÉ, when it emerged that there had been serious problems with the finances and management at the state-owned company.

    Memorably the then Director General Dee Forbes resigned in June, 2023. Around the same time, Ryan Tubridy’s ‘secret’ payments subsequently came to light.

    Problems in that organisation were evident for some time, as was previously raised in this publication, well before it exploded onto the national consciousness.

    Nonetheless, it appears that the Covid period provided cover for questionable practices, both within that organisation and in other state agencies.

    But this was small beer compared to the €725 million fixed upon the Exchequer only last year by the government to ensure RTÉ’s continued operation until 2028. That cash could be used to build up to 1,500 houses, potentially reducing the state’s homeless population by almost a third. Instead, it is being shovelled into an economic albatross that loyally served the government, when the people required rigorous journalism.

    How can we expect accountability at the state broadcaster when cash is shoveled in so easily?

    So then, whatever happened to the assertion in the 1916 Proclamation about ‘cherishing all of the children of the nation equally’?

    Looking North

    Thus, it is interesting to look North, as they took a somewhat different approach. It’s a different jurisdiction, but with a broadly similar social make-up.

    In the main, similar restrictions were adopted, with schools and pubs closed for much of the period. It was far from perfect in terms of coping with the crisis, with criticisms at the time, and since, as stated in evidence. Restrictions on social assemblies were clearly detested in some quarters, most memorably by a vocal Van Morrison.

    Yet, over time, a different approach gradually emerged. For example, in the first year, as occurred with crowd events in the south, the Orangemen called off their summer marches to prevent contagion. This was a sensible approach, given the knowledge at that time – and arguably more notable given that body has not always been associated with responsible approaches.

    But by the second summer, however, the Orangemen allowed outdoor, localised events to go on. Again, this was consistent with an evidence-based response. Simply put, the Orangemen got it right in terms of their Covid response!

    Last summer a suitably robust Inquiry was conducted in the North into how the state there had responded – with the BBC reporting that it had heard ‘devastating evidence with multiple failings across several departments.’ Hardly a ringing endorsement for that state’s response, which made for uncomfortable listening for many of those involved. Yet, the process may prove cathartic if mistakes are not to be repeated.

    As part of that inquiry, elected representatives were asked to turn over all text and WhatsApp messages from the period. Unfortunately, Sinn Féin politicians had apparently deleted the most relevant ones. In contrast, the Democratic Unionist Party (DUP) disclosed their texts. One member, Edwin Poots, appeared to have regarded Covid as a ‘Catholic’ disease – but, in fairness, he seems to have been an outlier.

    More encouraging were the texts from the current Joint First Minister, Emma Little-Pengelly, who voiced concern for children from poorer areas who were dependent on free school meals, which were to be suspended during school closures. This was a thoughtful and compassionate approach.

    Obvious need for a statutory Covid Inquiry in the ‘Republic’

    What could be learned from a comparable Covid inquiry in the South? Certainly, it would be very useful to gauge how the state implemented its emergency plan; how it adapted to new data; and how it will respond should a similar scenario ever again arise. MacNeill’s 1913 article resonates yet again; much can be learned from the approach adopted in Ulster.

    Instead, a culture of non-transparency that developed during Covid seems to have been normalised throughout the Southern government. Rather than a statutory Covid inquiry with accountability prioritised, it appears the so-called Republic are now to be governed according to secret pacts made with elected independent representatives.

    To borrow a description from Theobald Wolfe Tone, the last regime was ‘execrable’; and yet, there is every reason to fear the new administration may be even worse.

    Alas, it is hard to see how a non-statutory ‘review’ without powers to compel witnesses or documents will find much that is not already part of the establishment’s narrative.

    Without adequate explanations, as an inquiry could allow, my faith in this state has been shattered. Simply put, once entrusted with special powers, the government made a bad situation bloody awful.

    God forbid, if a proper inquiry was to occur, perhaps we might learn that at most crucial junctures, this state and at least some of its agents see themselves as beyond accountability – and are happy to force citizens to carry the cost of demented policies.

    Should this state ever again try to enforce measures such as those during Covid, I for one will be looking North to see how the Orange brethren respond. In the absence of accountable government here, I have learned to respect those who at least seem to prize their own civil liberties.

    Renowned musician Ronan O’Snodaigh (brother of Sinn Fein T.D. Aengus) playing bodhran on the walls of Derry/Londonderry with proud Orangeman Richard Campbell in 2021.
  • The Relevance of Jurisprudence to Law Part 3

    The remains of unquestionably the greatest intellect of the nineteenth century, Karl Marx, are buried in Highgate Cemetery in London. I recently tossed a red rose on the site. I doubt whether Judge Gerard Hogan, to whom I have addressed previous articles in this series, or any other legal positivist, would do likewise.

    While positivists often engage, though disagree, with rights-based -thinkers such as Ronald Dworkin, most exhibit a level of incomprehension, and often outright hostility towards certain forms of Radical Jurisprudence. No doubt the often unclearly expressed ideas of late Marxism, structuralism and post structuralism often are a factor, but that is only a partial excuse.

    Noam Chomsky – himself a linguistic positivist – once made a comment to the same effect on these authors, exempting Michel Foucault. He had developed a rational understanding of Foucault, but none for example of Derrida, who many including myself regard as largely intellectually fraudulent. Indeed, many Cambridge University philosophers objected to the conferring of an honorary degree on him, although I believe there is an element of truth to his babbling on relative truth or foresight.

    This plan of Jeremy Bentham’s panopticon prison was drawn by Willey Reveley in 1791.

    Panopticon

    It is, nonetheless, easy to see why, as far as my harsh assessment of post-structuralism Foucault is exempted. Foucault makes very relevant contributions to Jurisprudence and the practice of law.

    First, the transplantation of Jeremy Bentham’s idea of the panopticon – the all-seeing surveillance prison such as Kilmainham in Dublin – is in Foucault’s view a depiction of modern society, where a uniform doctrine is enforced in schools, law courts and hospitals, leading to blind conformity.

    Foucault presaged the age of Surveillance Capitalism and 24-hour data surveillance in Ireland, achieved in camera in the Quirke Case through the representations of the Minister for Justice Helen McEntee. Thus, we have a global panopticon wherein the value of privacy and freedom is thrown to the wolves.

    Now our judges aside from Hogan, most recently in the Dwyer Case restricting the privacy right, ignore ECHR and EU law. This undermines an ideal of liberty, at least as old as J.S. Mill in modern times, and in fact going back to the Greeks. So, Foucault’s insight is not about postmodernism. It translates into the destruction of rights under Article 3 of the Irish Constitution and 8 and 5 of the Convention.

    The second of Foucault’s contribution is his book on madness in the age of reason. The fundamental tenet is that the Enlightenment / Age of Reason involved the necessity, intellectually and then institutionally, to confine the unreasoned – those who were called mad – into asylums. Well, who is mad and who is clinically insane?

    The recent US Democrat convention, with the rather wonderful Mr Walz speaking from the heart on middle-class US conservatism about banning books and depriving choice stands against that Twitter conversation between Musk and Trump.

    The problem of reason and madness is also clear earlier in Ken Kesey’s masterpieces ‘One Flew Over The Cuckoo’s Nest’ (1962). What happens when the lunatics have taken over the asylum and a dissident voice says no? What of when the man or woman of reason, the pursuer of nuance and grey, the boy who cries wolf, the creature of the Enlightenment is locked up by those who are in fact self-interestedly insane.

    Foucault was apparently not on the UCD Jurisprudence syllabus in the late 1970s. A short journey to the Arts block to encounter Richard Kearney’s expertise in Continental Philosophy would have been beneficial.

    Marx and Engels in the printing house of the Neue Rheinische Zeitung. E. Capiro, 1895.

    The Crucial Figures

    The crucial figures of radical jurisprudence are not the structuralist, even Foucault, but the great Marxist theoreticians. For Marx law was a mirage, an ideology upholding the interests of the bourgeoisie, He considered it a mere superstructure determined by the economic base. Law, he observed, served the interests of the ruling class.

    Thus, in Marxist terms Hogan’s analysis of Kelsen is a form of intellectual masking or ideology justifying a form of state authoritarianism, which Marx would surely have interpreted precisely as the Populism of the petit bourgeoisie. No judicial deferral should be granted to the popular sovereignty of the mob.

    Marx though is not consistent about law. He argues that in the properly ordered Communist society there would be no need for laws, as we would spontaneously co-operate in our Communist Nirvana. But at times he concedes, inconsistently, that law is not always bad, and a close textual analysis of his views on property rights, and the freeing up of the alienation of estates to facilitate greater capital, shows that sometimes the superstructure can influence the base, and thus influence economic relations.

    So, what of Ireland controlled by a landlord class achieving nothing and facilitating careers going nowhere except to Microsoft and criminal banks, or the legal service class who act like vultures preying on the vulnerable on behalf of the powerful?

    The legal realist Oliver Wendell Holmes in his famous rebuke to unregulated free market economics in Lochner (1905) said the Fourth Amendment does not enact Mr Herbert Spencer’s social statics, and nor should the Irish Supreme Court enforce the interests of the commercial fat cats of Aran Square or elsewhere.

    Many Marxists, such as Lenin, saw the necessity for rules in a never-ending interregnum on the way to a Communist Utopia, which is never to be achieved. More pragmatically, the fundamental question for any judge which the Marxists pose is: whose interests do the rules serve?

    The Marxists influenced the critical legal studies movement, which to some extent educated me, adopting the radical indeterminacy thesis, an idea borrowed at one level from the legal realists. They argue that given the plasticity and malleability of rules, legal outcome can be very unpredictable and in fact subjective.

    There really is no such thing as a ‘plain fact’ or literal interpretation of almost any legal text. To avoid nihilism we should invoke moral principle as a corrective.

    Alienation

    The term alienation coined by Marx more generally to describe exploitation of workers serves as a warning as to how our government is destroying both the working and middle classes,

    Subsequent Marxist have been more approving of law. The legendary Antonio Gramsci, while imprisoned by Mussolini, adopted the phrase ‘hegemony’ to suggests as necessary a form of co-operation in law, politics and culture between the proletariat and the bourgeoisie. Now this coalition argument suggests law can be used as an instrument of social change. That depends on a desire to change for the good.

    One wonders whether the new, petite bourgeoisie-aligned Keir Starmer government in the U.K. should be a source of optimism or seen as a false dawn? More taxes on the wealthy, or further savage austerity for the poor?

    The Rule of Law is a central concept in jurisprudence, though hotly contested, and Marx aside, it has dominated the thinking of some of the main Marxists thinkers of recent vintage.

    In his codicil to Whigs and Hunters (1975), E.P. Thompson expressed a view on the Rule of Law as an unqualified good, which at times could check arbitrary authority. That of course assumes the Rule of Law exists in an ethical polity. It is not that evident in Ireland today as core principles are violated or improperly implemented.

    Thus, the independence of the judiciary is not obvious in Ireland, the use of in camera proceedings, akin to the promulgation of secret laws, is a cardinal violation of the notion that justice must be carried out in public. We also find an apparent tolerance of police corruption, the abandonment of substantive rather than formal equality, and indeed the abandonment of constitutional rights.

    Thompsons argument is premised on the idea that the judges are willing to enforce the rule of law, often with the effect of unsettling vested interests, as in the recent, painfully prolonged, Assange case. Irish judges are more likely to do the opposite.

    Jürgen Habermas

    Habermas

    Jürgen Habermas is, as ever, a crucial contemporary thinker, and, with all due respect to Gerard Hogan’s veneration of Kelsen, he is not just the world’s leading intellectual figure but the towering German intellect along with Thomas Mann and Kafka of the 20th century.

    Since Habermas abandoned the Frankfurt school, and thus post-structuralism, he has become, for over fifty years, one of the great proponents of the Rule of Law and legalism. He stresses the importance for judges not to subvert rights and parliamentary laws protecting civil liberties including the right to protest, viewing civil disobedience as central to revitalizing democracy.

    In contrast, the knee jerk reaction in Ireland and the UK has been to give more powers to the police to regulate dissent.

    Habermas’ other idea of communicative action, borrowed at one level incidentally from the arch positivist Austin, is the elaboration of the idea of ideal speech. His ideal for the vindication of speech rights is the eighteenth century salon. The ideas of communicative action in legal and judicial terms blends into the ideas audi alterum partem (‘listen to the other side’), and the obligation not to be either subjectively or objectively biased.

    Ideology, a term adopted by Marx, has been reinterpreted by Slavoj Žižek, drawing on another Marxist in Lacan, as ideological misidentification. In both instances, and applied to law, there is the sense that the bureaucratic class are engaged in false consciousness or deceptive ideas.

    Lon L. Fuller, who is not a Marxist but a natural lawyer, argued that once a legal system has not a tinsel of legality left, but enforces barbarism, it is no longer a legal system.

    To round the series off, a Marxist would fully understand the rage of Populism, but not necessarily approve of it. Of course pure Communist societies do not work, but nor does pure neo-liberalism. Indeed, Ireland is not working except for the landlord class.

    What does work legally ethically and morally is a social democratic Just Society advocated by the master John Rawls. What does work is Sweden, Denmark, Norway and much of northern Europe, where people are not in Marxist terms commodified and viewed as product, but in the moral Kantian sense things in themselves.

    John Rawls intellectually speaking would never have existed but for Karl Marx and a difficult thing for a legal positivist practitioner to realise is that Marx is in fact the greatest of all legal, political and economic philosophers. This is not to say he is entirely correct or a model to be followed in overall societal regulation, but a useful corrective to interpret laws and asses whose interest they serve and, if necessary, to bend rules to achieve socially just outcomes.

    Dworkin in fact argued that the South African judges during Apartheid should potentially have lied about the content of a racist law. I also agree or rather at the very least that they should have interpreted it to bring about socially just outcomes.

    Marxism at its best focuses on civil and in particular social and economic rights, and the judiciary responsibility to enforce them into the law and the Constitution, to the extent that this is consistent with the Rule of Law.

    Feature Image:Tomb of Karl Marx, East Highgate Cemetery, London.

     

  • The Relevance of Jurisprudence to Law Part 2

    In the first part of this series, London-based barrister, who taught Jurisprudence for sixteen years in the Honorable Society of the King’s Inns in Dublin, David Langwallner takes issue with Irish Supreme Court Justice Gerard Hogan devotion to Legal Positivism, instead arguing morality and politics should inform the law. He elaborates further on that debate in this article.

    This piece details what I believe is absent in the form of Legal Positivism that has been advocated by Supreme Court Judge Gerard Hogan. Indeed, there is a wider blind spot among the Irish legal establishment on whether jurisprudence should go beyond Legal Positivism, into the territory of Natural Law.

    A few years ago this debate might have been confined to the classroom and seminar, but it now assumes central importance.

    There is currently a crisis of legitimacy in the Rule of Law worldwide, unprecedented since the 1930s, and Ireland is not exempt. In my view Positivistic limitations on the subject is a sign of intellectual infantilism – an unnecessary curtailment of the boundaries of law, and what it means. Worse still, Legal Positivism contributes to a false assurance of just outcomes.

    The Nuremberg Trials.

    The Fundamental Question of Jurisprudence

    Let us thus address the fundamental question of jurisprudence: what law is, and what that matters in its practice?

    For a Positivist, the essence of law is legal fact, if it stems from an authoritative source often referred to as the Sovereign. Or let us call it, as Hans Kelsen and Hogan do the grundnorm (‘basic norm’). Then the law is divided into rules conferring powers on officials, within a given system, to apply them. This process occurs at a remove from politics or morality.

    H. L. A. Hart, the other leading Positivist with Kelsen, calls these rules either primary or duty imposing rules, or secondary or power conferring rules, which often rely on enforcement by adjudication by tribunals or courts, but not, it seems, by interpretation. That is the initial fallacy.

    Thus, according to Legal Positivism the job of any official is to apply rules literally. Giving, what Ronald Dworkin called, ‘plain facts their plain meaning.’

    Yet, very little is ever plain, and as the leading jurist of the 20th century, not Kelsen but Dworkin, maintained law is a question of the interpretation, not the application, of plain facts. It is also about principle not authority. And the texture of law is slippery and often as unclear as mud. Hence legitimate legal interpretation is a matter of law, not purely political philosophy. That is the crucial point and the one Hardiman and Hogan, among other UCD Positivists, fail to understand.

    Consider this in a different context. Imagine a witness says someone’s hair is dark, the question becomes how dark on a scale of 1-100, and was there any grey in the darkness? There is invariably a lack of clarity on any matter, and even the arch-Positivist Hart conceded an open texture or fuzziness even to statutory rules.

    That concession by Hart – as Dworkin correctly maintains – undermines his whole theory. For Hart, where the rule is fuzzy, he suggests a judge use his discretion. Dworkin correctly queries whether discretion per se should form any part of a legal dispensation.

    In fact, given that many rules have an open texture – in that they are capable of various interpretations – the reliance on an untrammelled or open-ended discretion, as Dworkin maintains, undermines Hart’s conception of Legal Positivism. The natural lawyer John Finnis also correctly points out, in parenthesis, a weakness to Hart’s internal point of view, crucial to his Positivist agenda. To save Legal Positivism from morality Finnis points out, by using normative language such as ‘ought’ or ‘should’ Hart is conceding a moral component to law.

    Contrary to Hogan’s position on legal interpretation, Dworkin contended that it must involve political and moral interpretation, and not be an exercise in literalism or strict constructionism.

    To make sense of law as a corpus and not rely on discretion per se law legal interpretation must be an exercise in principled interpretation. Only then can it create a seamless whole that is not a web of deceit, or draconian rules, but one of justice.

    Adolf Eichmann

    Slow Train

    The abandonment of principle and constitutional rights is a slow train to the sort of cognitive dissonance embodied in the likes of Adolf Eichman, when he argued he was only doing his job. This is the divorce of officialdom from morality.

    Such issues led to the famous Hart-Fuller Debate on the relationship between law and morality and to a consideration of retroactive laws. Fuller in effect maintained we owe no obedience to laws without a tinsel of legality. Even Kelsen applied retroactivity exceptionally in the case of the Nazis.

    Dworkins progenitor and mentor is John Rawls, who is decidedly back in fashion in the academic community. Not that his ideas have ever gone away entirely, but his critique of neoliberalism and his conception of a just society seems more pertinent than ever,

    Daniel Chandler in his recent book Free and Equal: What Would a Fair Society Look Like? (2023) argues that there is a broad approval among academics around the ideas of the maximisation of liberties; a measure of discrimination in favour of the disadvantaged; and an element of putting money aside for future generations to meet the economic and environmental devastation of neoliberalism. To our power brokers, however, these principles have little or no significance. Seemingly, as Chandler contends, the more Rawls gains traction in the academic community, the less his ideas are implemented by our rulers.

    Of course, Rawls is a political philosopher and though he does address law, he does not do so with the precision of Dworkin.

    For Dworkin the answer is very clear: our judiciary have a moral and principled obligation to interpret laws in a socially just way to protect the innocent, the disempowered, the accused and sanction the government when required. This also includes the moral obligation not to defer to a Separation of Powers, but to declare a law unconstitutional when it is called for. It also includes a non-textualist approach to read rights into the constitution as a living instrument, to protect the rights of the citizen, and non-citizen.

    In Ireland the lure of Legal Positivism and the abandonment of the wisdom of Rawls and Dworkin among the judiciary has led to the non-enforcement of social and economic rights. This has contributed to a housing and homelessness crisis, tearing apart the very fabric of our society and fuelling the rise of the far right.

    The judiciary could have easily followed Canadian and South Africa as well as Indian Jurisprudence, which either give vitality to the Right to Life contained in Article 2 of the Constitution, by including the quality of that life. They might have also revived Article 45, and thus the social contract.

    Ensnared by banking interests, debt, and agency capture, the courts have failed to intervene. These decisions and non-decisions are unforgiveable, immoral, and even borderline criminal.

    Further, In Rawlsian terms They have not maximised rights over absurd limitations on public and common good considerations, thus systematically destroying due process and privacy rights, ignoring or sidelining EU and ECHR law along the way. They have given ever more power to our police forces, standing idly by as 24-Hour Surveillance takes place, with more special courts to come, amidst an unspecified emergency.

    The Four Courts, Dublin.

    Long Dead Values

    Our gatekeepers have deferred to long dead values. They have not utilised the constitution progressively, and failed to protect non-nationals adequately. I suspect they will curtail freedom of speech if the hate speech bill passes.

    Since Adrian Hardiman, and indeed before, they have been utterly useless in upholding the constitution.

    Part of the Positivist agenda is to focus on Positivistic realism. Realism, though useful in some respects as an analysis of trial practice and what courts do, justifies cynicism and above all Populism. If there is one idea that captures the leading realists Karl Llewellyn’s conception of policy, it is the will of the majority, or what people want. What Hogan terms the grundnorm of popular sovereignty.

    The problem with deferring to Populism in our present Dark Age is that we are dealing with agency capture of the media, excessive blind sheep obedience, alt-right mob rule and the enforcement of it through legislation, such as anti-immigrant measures or mass surveillance.

    It is in fact important for judges to be, as Dworkin put it, philosopher monarchs, in the sense of vindicating rights against tyranny. Thus, gatekeepers must protect rights against tyranny and realise that, as Hannah Arendt put it, we should have the right to have rights.

    In Ireland the judiciary defer to Kesean popular sovereignty and judicial restraint. It is correct to see them as accomplices to evil. Even Hogan, our finest judge, risks selling his soul to the devil.

    Justitia in the Superior Courts Building in Budapest, Hungary.

    Are Rules Important?

    The other fundamental question is whether rules are really that important. The realist scholar Roscoe Pound called them merely pretty playthings. This is the view, commonly held among realists, that a judge reaches the subjective conclusion, dictated by policy considerations and then makes the rules fit the facts. In short, the rule is an intellectual justification of a conclusion. This is a view I have some sympathy with, but it again demonstrates the obsolescence of black letter law.

    Crucially, Dworkin gives rules or plain fact more weight, and thus does not undermine legality but argues that a rule or even the plain fact of a rule is subordinate to the interpretation of principle. Thus, the judge is obliged to attempt to achieve the best creative and constructive sense of the law as a matter of principle, where principles have dimensions of weight and importance, and rules do not.

    The important point comes where there is a conflict between a rule and a principle. Here the principle, whether legal or moral, prevails.

    Dworkin points to the Lord Atkins Neighbour principle in the foundational case in Tort Law Donoghue v Stevenson (1932), to the effect that constitutional values are principles in the law. Indeed, a crucial application of principle is where a law is declared unconstitutional. That is when a Positive law struck down by a principle. Or when the principles of the ECHR are enforced, which we rarely see, rendering our constitution a nudum pactum – a promise that is not legally enforceable.

    In this respect by its embrasure of literalism and historicism in judicial interpretation, Legal Positivism negates the spirit of the law, and deems crucial issues non justiciable. It does not protect matters of principle and rights, and fails to develop the constitution as a living instrument to adapt to changing circumstances.

    The negation of this development of constitutional rights has led in America to the justification of handguns, in that they were commonly in use at the time of the American Revolution by the historicist Scalia, and the over-ruling of Roe Versus Wade, as inter alia in a specific context it sought to graft a non-literal privacy right into the constitution of the US.

    Dworkin’s principled interpretation, unlike Legal Positivism, takes rights seriously and takes issue with legal realist premises, based on majoritarianism, that rights are subservient to policy consideration.

  • The Relevance of Jurisprudence to Law Part 1

    This article is a response to Supreme Court Justice Gerard Hogan’s Annual Hale Lecture in Trinity College, Dublin in November 2023 on the on the topic of: ‘Grundnormen in UK and Irish Constitutional Law,’ and I thank him for sending it to me.

    The grundnormen is a creation of the legendary Austrian jurist Hans Kelsen. He is viewed by many as the greatest figure in Jurisprudence of the 20th Century. For his own part, in the mould of Justices Niall McCarthy, Adrian Hardiman and Declan Costello, Gerard Hogan is, in my view, our only current top class Irish judge, and a man for whom I have great respect.

    However, Hogan’s paper, although a brilliant piece of work, is profoundly unsettling not as such in what it is right about, but in terms of what it is wrong about, largely by omission or occlusion, i.e. what it does not say.

    He frankly concedes that the UCD lectures he received in jurisprudence failed to equip him with an understanding of the relevance of John Rawles or even The Natural Lawyer, John Finnis, nor does he reference radical jurisprudence, or indeed the éminence grise of 20th century legal philosophy, Ronald Dworkin. Thus, Hogan emerges as an arch positivist – as of course was Kelsen – a literalist and strict constructionist. It is fair to describe him as a black letter lawyer.

    Kelsen was the purest and most consistent of the positivists in emphasising the precise distinction between law and the domains of politics and morality, with one significant aberration on which more later. It is called a pure theory of law, Kelsen argued, because it only describes the law and attempts to eliminate from the object of this description everything that is not strictly law: Its aim is to free the science of law from alien elements. This is the methodological basis of the theory.

    Hans Kelsen 1881-1973.

    Kelsen: The Pure Theory of Law

    It is perhaps unsurprising that one of Hogan’s instructors in jurisprudence while in UCD, Professor John Kelly, in a superb posthumous A Short History of Legal Theory (Oxford University Press,1992), expresses equally bafflement with post-positivism. It is merely an afterthought in that book. Well that is UCD.

    Likewise, consider Adrian Hardiman’s apparent chastisement of John Rawls in his judgment in the seminal 1991 Sinnott case for viewing political philosophy as a branch of jurisprudence:

    [t]heorists of this view consider that they can provide a body of principles which can be interpreted and applied by courts, to the virtual exclusion or marginalisation of the political process…I[f] judges were to become involved in such an enterprise, designing the details of policy in individual cases or in general, and ranking some areas of policy in priority to others, they would step beyond their appointed role.

    Also, the reference to Lord Denning’s subtle dismissal of jurisprudence at the outset of Hogan’s paper is at one level a revelation of the standard wisdom of practising lawyers that only positivistic jurisprudence is relevant to court cases.

    When the U.K. Supreme Court overturned Boris Johnson attempt to suspend parliamentary scrutiny by proroguing it, Lord Pannick KC, the advocate in the case, gave a most revealing and rare interview after the event. In a sense Hogan’s argument is about where they stretched matters too far. I disagree.

    The problem with Hogan/Kelsen, and positivism more broadly, is, fundamentally, the cleavage between law and morality and/or law and politics, which are treated as if they are separate domains and not relevant to the subject of jurisprudence.

    Hogan also purports not to understand the Natural Lawyer. When it comes to John Finnis I agree. Finnis argues unconvincingly that the law should reflect self-evident goods such as marriage involving sexual congress, which has as its aim the production of children. In short sex for the sake of sex, not for conception, is not good, because it does not conform to the common good of friendship, which is intrinsic to heterosexual congress within marriage, or the good of parenthood.

    Jeremy Bentham like many positivists regarded natural law as ‘nonsense upon stilts;’ or as the other positivist John Austin suggested: if you invoke in a court room that an act is contrary to natural law a judge will indicate the inconclusiveness of your reasoning by hanging you. Many are also sceptical, as they ought to be, of inserting the values of The Iona Institute into the Irish Constitution.

    But that does not answer the question of morality or politics as an aspect of jurisprudence by a process of legitimate legal interpretation. This is the interpretation of texts in the sense of the grand style judge, mentioned by Karl Llewellyn, who defers not just to literalism, but also to policy and principle.

    Thus, Hogan effectively dismisses John Rawls and Ronald Dworkin, Marx’s Grundrisse and the legal realist perspective on policy from legal interpretation. Hogan also falsely invokes Oliver Wendell Holmes as a positivist. He was in fact the founder of legal realism – the forerunner to Llewellyn – who said, ‘The prophecies of what the courts mean in fact are what I mean by the law.’

    It is, however, brave of Hogan to attempt to define the mystical grundnorm. In Ireland it can be interpreted as the Constitution, based on popular sovereignty, or parliamentary sovereignty in the UK. But at its most abstract level the grundnorm is that which is responsible for the historically first constitution, in Kelsen’s own words.

    So, why does that create problems? First, and not least, the concept of original intent and the intentions of the Founding Fathers, is intrinsic to US jurisprudence, especially through the likes of Amy Coney Barrett. This involves a deference to long dead people or long dead intentions in different historical circumstances, an approach which Ronald Dworkin has rightly criticised.

    Kelsen, like indeed Hogan, was in an extracurricular sense far from apolitical. He was a Jewish intellectual and supporter of Weimar Germany. However, he believed, as Hogan does, in the essential goodness of the state. Although, in fairness Hogan has sagely warned about the denudation of due process by the Irish judiciary. In my opinion Kelsen was, and Hogan is, over-wedded to the view that states have duties to allow rights, but only on its conditional fiat. I cannot accept that at face value for it assumes the state apparatus in its present incarnation protects rights, which in the case of Ireland it clearly not the case.

    It assumes the Irish state has a tinsel of legality. Yet with our corrupt police force, dysfunctional justice department, populist leadership, and compliant judges we are entering a period of anarchy I fear.

    The Nuremberg Trials.

    Nuremberg Trials

    Curiously, Hogan does not mention Keisen’s famous moral detour, where he contorted positivism to justify the jurisdiction of the Nuremberg War Crimes Tribunal. Although Kelsen fundamentally disagreed with the legal basis for the assumption of authority and the way in which individual responsibility was not more differentiated, he defended the Nuremberg Trials. Contorting the principle of retroactivity, he argued the Nazis knew at the time what they were doing was immoral and not innocent. Thus, he created an exception to retroactivity, which is a cardinal violation of positivism, and indeed that amorphous notion, the Rule of Law; for which he has been heavily criticised by other positivists such as Joseph Raz.

    Hogan quotes another positivist, Jonathan Sumption at length in dissent at the prorogation of parliament case around the necessity to defer to parliament and the Rule of Law, or ‘the people’ as in Ireland. This should apply only if parliament is entitled to deference, which it is not in my view in Ireland, and only marginally so in the UK.

    Judicial review should protect against executive action or ouster clauses removing the jurisdiction of the courts, as in the UK. The Irish courts do not apply judicial review with rigour, and certainly not in a fashion similar to the mandatory orders in South African or India to enforce shelter, housing and health care rights. They also defer to the notional expertise of immigration tribunals and police decisions.

    Hogan has previously referenced the obliteration of due process in Ireland, and indeed the constitutional dispensation has provided scant support for those whose privacy rights have been violated.

    It is also notable that Hogan discusses the jurist, Carl Schmitt. Schmidt famously argued against emergency power clauses and secret laws, and yet our courts in camera last year approved of twenty-for-hour surveillance of the entire population, and we await the extension of the Special Criminal Courts. An unspecified emergency has been referred to by Minister Helen McEntee. Perhaps Hogan knows what this is.

    John Rawls 1921-2002.

    John Rawls

    In my view, the most important book of political philosophy since Karl Marx’s Grundrisse is John Rawls A Theory of Justice (Harvard University Press, 1971).

    The Rawlsian approach is to pose a question: where people are placed behind a veil of ignorance wherein they cannot know what their personal circumstances will be, how would they chose to order their society?

    He suggests that most people would choose the maximum number of liberties, as they would not enjoy living in a society where civil liberties are not adequately protected. Secondly, he argues that most would choose some measure of wealth edistribution in favour of the disadvantaged.

    If you were to be born a sub-Saharan Africa, or Ireland for that matter, you would surely want some measure of social protection. This principle is despised by neoliberals, and is central to the arguments in favour of housing rights, health care rights, food rights and a civilised society.

    Thirdly, Rawls argues for equality of opportunity and the elimination of self-advancement based on birth, family ties or social position.

    Rawls adds an additional idea, The Just Savings Principle, wherein we cannot denude the Earth for future generations. However, Amartya Sen, in The Idea of Justice (Harvard University Press, 2011) argues that Rawls fails to address the reality that the achievement of a Rawlsian society is resource dependent. Clearly, we need to build a just society based on our capacities and needs.

    Ireland is among the richest countries in Europe, yet successive governments have permitted rampant homelessness and moveable refugee shelters. Surely these ongoing violations require mandatory orders?

    Codicil

    As a codicil, Hogan references the Irish Constitution, and has written the definitive text on the subject, but at this stage all that wonderful analysis seems to amount to a Tristam Shandyesque cock-and-bull story. The problem is positivism: positivism in an age of draconian laws; positivism in a crypto-fascist age.

    Thus, when Hogan suggests popular sovereignty as a grundnorm, he should look squarely at the Gorgon’s Head and the rampant Populism that neoliberal policies have produced.

    Populism is not an acceptable juridical dispensation when all civility is lost, as in fact Sumption hitherto argued. The law becomes, as the jurist Eugen Ehrlich argued, in a criticism of Kelsen, a mask for brute force. We are right because we are powerful: macht geht vor recht as Bismarck put it.

    The fundamental questions are whether the gatekeepers, including the judges, are really aware of the social realities, and are they attempting to achieve a just and decent society. Gerard Hogan should bone up on Rawls, Dworkin, Legal Realism and even Marx’s Grundrisse, in my view a far more convincing abstract analysis of the role of law in society than Kelsen’s Grundnorm.

  • Guilt and Innocence in the Criminal Justice System Part 2

    As the founder of the now seemingly inactive Irish Innocence Project, and co-founder of The European Innocence Network, I staunchly oppose the death penalty, with exceptions for certain Crimes Against Humanity. I have personally visited and represented individuals on death row in Kenya and the U.S.. This underscores the critical need for our legal system to exercise caution, and precision, to avoid wrongful convictions.

    Recently, I have condemned in a Cassandra Voices Podcast the inhumane prospect of Julian Assange enduring indefinite incarceration. This stance does not, however, imply a belief in universal innocence, or countenance a dismissal of deserved punishment. Rather, I advocate for a measured approach to justice, echoing Shakespeare’s notion of ‘measure for measure’ in determining appropriate consequences for actions.

    Following an ethical determination of guilt, the central question revolves around what form of punishment is suitable. But before delving into punishment, we must first address the concept of guilt, and whether the guilty evade accountability.

    Unfortunately, instances abound of individuals with power or wealth evading justice through various means. Examples include former President Trump and Clinton’s long list of pardons on leaving office, and instances of state officials abusing their authority, as depicted in literature such as Klima’s 1991 novel Judges on Trial. These cases underscore the danger posed by those entrusted with upholding the law manipulating it for personal gain.

    The Worst Criminal

    A state or judicial criminal is often the worst criminal. They have subverted the Rule of Law and the processes they were appointed to uphold. They are professional hypocrites.

    In his 1971 detective novel Equal Danger, Leonardo Sciascia demonstrates how in Italy judges may become, by stages, complicit in murder. Chillingly, the President of the Supreme Court intimates to the investigating detective that in condoning murder the judiciary are incapable of error.

    Sciascia also documented the complicity of the mafia and Christian Democrats in the murder of God’s banker Roberto Calvi in 1982, and of course the kidnap and murder of the progressive, or incorruptible, Christian Democrat Aldo Moro in 1978.

    In Ireland the incident that primarily gave rise to Conor Cruise O’ Brian’s immortal phrase GUBU (grotesque, unbelievable, bizarre and unprecedented) was the murderer of the nurse Bridie Gargan and the farmer Dónal Dunne in 1982. The murderer Malcolm McArthur was discovered on the private property of then Attorney General Patrick Connolly.

    Not uniquely in Ireland, the powerful avoid and do not accept responsibility for their actions and may resort to framing others. Voltaire, the earliest expert in miscarriages of justice coined the phrase per encourager les autres, to deal with the scapegoating of Admiral Pyle by the establishment.

    Political criminals also enact laws to protect their interests. The new Hate Crimes Bill in Ireland is finally being opposed by SF as they have recognised the danger it poses.

    Foundational Tenet

    The legal principle of ‘presumed innocent until proven guilty beyond reasonable doubt,’ as established in the case of Woolmington v DPP (1935), serves as a foundational tenet. Yet, challenges arise, particularly regarding the interpretation of evidence and credibility of assessments.

    In every case I have recently conducted the same question is asked by jurors: “is sure the same as beyond all reasonable doubt?” Judge rightly say yes, and try to avoid further questioning to avoid being buried in semantics.

    Of course, the crucial point is that unless someone tells a defence lawyer he or she is guilty – in which case you either withdraw or can only defend by challenging the prosecution evidence without asserting innocence – you cannot know definitively.

    Cognitive bias cuts all sorts of ways. A defence lawyer should be timorous about getting a client to plead guilty if there is any doubt. Not least, many clients are vulnerable and inclined to please authority and, as has happened in my experience, defendants may seek to change their plea.

    The intersection of morality and legality further complicates matters. It is essential to caution against conflating moral judgment with legal culpability. Instances of moral condemnation influencing legal proceedings – as seen in the admission of bad character evidence – highlight the need for a nuanced approach.

    A feature of my speeches is to caution a jury not to confuse morality with legality. Moral condemnation is often used by the prosecution to smear the accused, and the previous bad character admissions ushered in by Blair in the U.K. opens that gateway.

    In Ireland, however, the exclusion of bad character is not a good idea. Evidence of bad character is only inadmissible in certain defined exceptions, such as if one puts one’s good character in evidence. There should be more of a halfway house.

    Despite efforts to discern guilt, the process remains fraught with challenges. Guilty individuals often resort to elaborate tactics to obfuscate the truth, necessitating a vigilant approach from their lawyers. Additionally, societal biases and institutional pressures can influence witness testimony and judicial outcomes.

    In the pursuit of justice, it is crucial to distinguish between genuine miscarriages of justice and rightful accountability. While liberal objections to wrongful convictions are warranted, there are instances where the punishment must align with the severity of the crime. The case of the Moors Murderers 1963-65, Ian Brady and Myra Hindley, serves as a poignant example of criminals rightfully facing lifelong imprisonment.

    Reluctantly, it must be conceded many are guilty. And it is sometimes very difficult to get them to accept their guilt. Even my great hero Clarence Darrow ‘Attorney for the Damned’ represented Leopold and Loeb, who in a nihilistic fashion attempted to kill another young man simply to prove they could get away with it. As in the Jamie Bolger case. Darrow knew they were guilty and avoided an insanity plea. Instead, he made the greatest plea in mitigation in the recorded legal annals to avoid the death penalty. But they did do it.

    Lucy Letby mugshot.

    Nurse Letby Case

    The recent case of Nurse Lucy Letby who was found guilty of murdering seven infants in Manchester crown court in 2023 is instructive.

    She is not the first Mancunium serial killer. Between 1963-65 in Saddleworth Moor near Manchester Mancunians Ian Brady and Myra Hindley murdered innocent children. It is noticeable that they were also influenced by the film ‘Compulsion‘ documenting the Leopold and Loeb case.

    Working on a recent case in Manchester, I resisted the temptation to visit the moors, but did pass by Market Street, Cheshire where another notorious murderer, the serial killer and doctor, erstwhile respectability known as Harold Shipman had his surgery. In this case a later inquiry revealed the police should have acted sooner. So, one should not always attack the police.

    And there is some evidence in Nurse Letby’s case that the NHS, in collective group think, buried their heads in the sand as the evidence accumulated. They were protecting the guilty through cognitive bias. A consultant who gave evidence in her case said lives could have been saved if there was not a cover up to preserve institutional reputation. Thus, in fairness, state officials, doctors and police officers are often hit from both sides: damned if they do; damned if they don’t.

    I have represented clients in several cases where due to witness reluctance or external pressures, the police have taken the action of NFA (No Further Action), which they have come to regret.

    The cheaper the crook…

    So, what are the hallmarks of guilt? It is surprisingly difficult to work out. One crucial sign is perhaps, as the American actor Humphrey Bogart said: ‘the cheaper the crook the gaudier the patter.’ Overly complex explanations are often a sign of guilt.

    The patter includes: convoluted challenges to police evidence gathering and exercise of due diligence on instruction; excessive casting of doubt on overwhelming expert evidence; elaborate excuses for extreme violence based on self-defence; and inappropriate allegations of police misconduct.

    Now the process must be tested and many wish to save their skins. Those who are desperate will often resort to anything, and the defence lawyer on instructions often must facilitate this.

    I remember how both myself and Adrian Hardiman were tarred with damnation, overlooking constitutional niceties, in the constitutional challenge to The Proceeds of Crime Act as lawyers for Gilligan by the Sunday Independent.

    A trial process weighs up whether evidence is relevant or not, and whether there is a case to be answered. The question of whether a case should have been brought in the first place is a different matter.

    Legal representatives may also argue over whether there has been an abuse of process through non-disclosure, non-compliance or a fit up. In this respect the absence of video or phone evidence is crucial. Once confronted, a guilty person may tangle themselves up in lies, which affects their credibility when giving evidence

    A witness who is lying must avoid the truth and is often lulled by persistent questioning into the trap of telling the truth by indirection.

    Thus, the prosecuting barrister Edward Carson, after listening to days of Oscar Wildes’ ridicule at his trial for gross indecency in 1895, popped the surprise question – a deadly weapon to be sparingly used in the barrister’s art – about the boy Grainger.

    Did you Kiss him?

    The answer which leads to the Reading Gaol and early death in Paris was:

    Oh no he was far too ugly.

    It must be stressed that the credibility of a witness must be read in the context of the vulnerable person they may be. Some suffer from addiction and mental health issues, which is not to say they are not telling the truth.

    Sadly, in a world of increasing subjectivism and loss of truth those who lie may have been telling the truth as they see it, or as they remember it, but not as a fact. Witnesses for defence and prosecution also have intellectual masking to justify in their own mind what they have done. Everyone, as Voltaire indicated, has their reasons.

    Anti-social Media

    In our time, text evidence from social media and other digital uploads such as chat lines are often very incriminating. The utilisation of social media can have disastrous consequences as historic texts and chats can come back to haunt you. They might demonstrate a propensity as a prelude or aftermath to an incident, and they often show planning, ostensible grooming or worse still acceptance. But comments of a salacious nature in isolation can be magnified by unscrupulous prosecutors.

    Scurrilous tactics are never justified, but tarnished evidence is often admitted. I am no fan of racist vigilante groups or engaging in quasi entrapment, but I recognise that sometimes they catch people who are guilty, or, more ambiguously, exhibit certain traits.

    Video evidence often confronts someone with what they really did under the influence and normally leads to a quick acceptance of responsibility.

    What happens next has been characterised by Oliver Wendell Holmes as the ‘bad man’ of law:

    If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, and not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.

    The legal process is often unforgiving, albeit this is necessary at times.

    I do not believe in punishment as denunciation, or retribution where guilt and sin are confused, such as occurred in the sentencing of Roger Casement to death.

    With respect to what the British call just and proportionate punishment, I had the privilege of inspecting a Norwegian prison when attending a death penalty conference in Oslo. The tennis courts, swimming pools, private rooms discourage recidivism and potentially rehabilitate criminals.

    The Court of Appeal in the UK in R v. Ali (2023) is actively discouraging judges from sending people to prison, not least in congested post-Covid times. Most come out not wiser, but weaker.

    But let us also be conscious of the appropriate punishment for the massacre of the innocents.  Not all who claim a miscarriage has occurred are victims. There is a time for a liberal objection to a miscarriage of justice, and a time for when the punishment should fit the crime. Even the Norwegian prison system struggled with the serial killer Anders Breivik, who they had to build a special facility for.

    I wonder will certain lawyers, businessmen or lawyers ever see justice? Not likely, apart from a few subordinates thrown to the wolves. This was the pattern of our banking prosecutions. The rich can retain the best lawyers and engage in plausible deniability, and a chain of command.

    Thus, corporate lawyers, judges and businessmen, as well as puppet politicians, have the justice game rigged, up to the point where they commit murder. Then of course the system must react? This may become a pertinent question for Ireland in the coming months.

    Feature Image: Christian Wasserfallen
  • Guilt and Innocence in the Criminal Justice System Part 1

    I have just finished representing a client in a murder case and have plenty to reflect on about guilt and innocence. This is a two-part excursus for Cassandra Voices dealing first with why certain people are found guilty of crimes they did not commit.

    The Innocence Project, with which I was involved over many years, has flagged the issue of cognitive or confirmatory bias, which often plays a crucial part in my closing speeches. The idea that we are liable to jump to conclusions based on pre-existing prejudices or our life experiences is as old as Dante or Francis Bacon.

    The idea explains why in natural justice terms the aphorism: justice must not only be done but be seen to be done, cautions against a decision based on the perception of bias, including objective bias. The crucial point is to be self-reflexive and to acknowledge shades of grey. Such is the path of wisdom – esteem nuance and not dogmatism. That is how to judge or be a juror, or even an investigative police officer, and not a persecutor.

    In terms of Confirmatory Bias Drs. Dror and Hampikian of The Innocence Project have demonstrated that even when experts review a DNA test, if the police disclose which is the suspect’s DNA profile, a favourable match to the evidence may be found.

    In a case study they conducted, two state experts who declined to exclude a suspect had information about his background. Whereas, when that same evidence was sent to seventeen out-of-state experts at another lab – who had no information on the suspect – twelve of the seventeen DNA analysts excluded the suspect from the inquiry, four deemed the matter inconclusive, and only one agreed with the original state police lab scientists that the suspect could not be excluded.

    We refer to this as confirmatory bias, and in my view it goes beyond police officers and social workers. It also seems to apply to pathology experts and forensic experts. The best are trained to understand such biases exist, and as one expert I recently cross-examined recently intimated, allow for a spectrum of doubt.

    Leading Questions

    A crucial problem emerges in the trial and investigative processes when repetitive, leading questions are asked.

    Elizabeth Loftus and Maggie Bruck specialise and are associated with the Innocence Project in false memory syndrome, which is accepted as persuasive in many courts. So, for example Loftus conducted a survey familiar to lawyers as to how different participants react to how any question is framed.

    An example of a leading question is illustrated by the difference between the following questions.

    Question 1: At what speed did car one contact car two?

    Question 2: At what speed did car one smash into car two?

    The question using the verb to smash led to the witnesses seeing broken glass when there was none and to assume guilt. In short, the question was framed to achieve a particular answer. It was suggestive and leading.

    A leading question the big no-no of the criminal courts, as it is used to elicit a desired answer, and build a conclusion from a premises. Unfortunately it is often employed by police officers and social workers. A barrister may attempt to lead, but is chastised if it is obvious.

    Language matters and those who misuse or traduce it to achieve outcomes whether for personal, political  or commercial reasons should be treated with the utmost scepticism. It is increasingly tolerated in a culture of obvious untruth and exploitation, which is now seeping into the criminal justice system.

    Brains can be reduced to mush by leading and direct questions. By such mechanisms children can be led to believe that day workers slaughtered rabbits, as Stanley Schiff recently remarked in a book about the Salem Witch Trials.

    Examination of a Witch (1853) by T. H. Matteson, inspired by the Salem trials.

    An opinion once adopted

    Francis Bacon, the great British philosopher and intellectual as well as Lord Chancellor of Britain also remarked in this context:

    The human understanding when it has once adopted an opinion … draws all things else to support and agree with it. And though there be a greater number and weight of instances to be found on the other side, yet these it either neglects or despises, or else by some distinction sets aside or rejects

    In rape and abuse cases such attitudes as this have spiralled out of control, particularly through the overloading of a formal accusation with endless satellite allegations, which create an overwhelmingly prejudicial effect; compounded by the admission of bad character evidence in the U.K.. This represents the over-weighting of morality to determine criminality.

    Historic cases are hugely problematical, as is delay. The all too convenient idea that a victim waits donkey’s years because of suppressed memories leaves a defendant, twenty or more years later, relying on the fallibility of memory – often in the absence of documentation – to defeat allegations. When relationships break-up and partners move on and there are children involved it often opens up an unholy vista.

    That is not to undermine the victims of serious crimes. But the falsely accused are also victims and their lives are often destroyed.

    Conceptual closure, and stereotyping are necessary as a survival plan but not for justice. Black and white thinking leads to tick box, or slot machine justice.

    Identification Evidence

    Life of course is messy, as is the criminal justice system , and we need categories or categorisations to survive, but we must confront the problem of over-categorisation.

    The legendary jurist Jerome Frank was much attuned to how the prejudice of participants in the trial process (judges and indeed jurors or witnesses) influenced decisions, and how selective recall or mistakes about facts often affected the outcome of a case.

    Thus, the unpredictability of court decisions resides primarily in the elusiveness of facts and deep-seated prejudice. He wrote:

    When pivotal testimony at the trial is oral and conflicting, as it is in most lawsuits, the trial. Court’s finding of the fact involves a multitude of elusive factors: First the trial judge in a non- Jury trial or the jury in a jury trial must learn about the facts from the witnesses and Witnesses, being humanely fallible, frequently make mistakes in observation of what they saw and heard, or in their recollections of what they observed, or in their courtroom reports. Of those recollections. Second, the trial judges or juries also human, may have prejudices – often unconscious unknown even to themselves – for or against some of the witnesses, or the Parties to the suit, or the lawyers. Those prejudices when they are racial, religious, political or economic, may sometimes be surmised by others. But there are some hidden, unconscious. Biases of trial judges or jurors – such as for example, plus or minus reactions to women, or unmarried woman, or red-haired woman . . . or men with deep voices or high-pitched voices.

    Identification evidence or the fleeting glance is often subject to the Turnbull Warning of the dangers of same, and although safeguarded it remains troublesome. 

    Juries have always been swayed by advocacy, and it is, as I have hitherto written, about a dark art more akin to magic or sorcery, but even the most ingenious sorcerer cannot normally produce a silk purse from a sow’s ear. Jurors are not entirely naïve and, in my experience, do focus on the evidence, but particularly in America, hysterical prosecutors often confuse morality and criminality. That this is fuelled by excessively religious people warrants condemnation.

    There are other causes of false convictions. In Ireland since 2015 when the JC Case jettisoned the exclusionary rule, allowing the police to characterise tainted evidence as inadvertence or a mistake, it created an open door for targeting and framing. The prevalence of police corruption and incompetence in Ireland recommends, in my view, a special layer of checks in addition to the DPP, before any arrest is sanctioned.

    Another consideration is where an offence is far too loosely defined such as the proposed Irish criminalisation of so-called hate crimes.

    I am very attuned to dealing with vulnerable people with mental health problems and drug addictions. The problem of false confessions arises when a person is interviewed often without an appropriate adult in the room, and starts to sing like a canary. Vulnerable people will confess to almost anything, often based on lack of self-esteem and incredibly short-sighted desires to get out on bail, sometimes just to go to the pub or attend a football match. Solicitors should always be present. Psychiatric reports need to be secured.

    The explosive growth of social media has led to a proliferation of new crimes, such as what may be a mistaken decision to engage in a sexual role play conversation and, in that context, there is the rise in demonic entrapment, including the targeting of perceived sex offenders by vigilante groups who prepare the case for the police.

    We live in an age of extremes, characterised by witch hunts, increasing executive decrees, secret laws and over-regulation. It is eminently possible to stray into a wrong place at the wrong time and be accused unfairly.

    A crucial final point is to appreciates the damage caused by a false allegation. Even if a person is ultimately found not guilty, they may be traumatised for life.

    I hope the Innocence Project gains more traction improving processes at the beginning of the system, rather than providing a photo opportunity twenty years later, when someone’s life has already been destroyed.

    The question of compensation also arises, as in the recent Andrew Malscherk case who served eighteen years for a rape he did not commit.

    But to anticipate my next article not all are innocent, and some who are guilty are assumed to be innocent. Bob Dylan’s song about Rubin Carter ‘Hurricane’ is forceful and brilliant, although it may have given a sanitised account of the accused. Not that he could have been the champion of the world but that he was always an innocent man in a living hell.

    Feature Image: Christian Wasserfallen