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[Auto-generated transcript. Edits may have been applied for clarity.]
Michelle Dempsey, thanks very much for having this conversation with me. Thank you for inviting me.

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The topic we're discussing today is sexual wrongdoing in the past,

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and I'm specifically interested in the ways in which the historical element of

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certain sexual misconduct claims affect how people think about that past wrong,

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and both in terms of how wrong was it when it was in the distant past,

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and also the degree of the perpetrators blame worthiness for wrongs that they've done a long time ago?

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So the reason I wanted to speak to you about this is because you've done some really excellent work breaking down these ideas and

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separating out the potentially very different things that people might have in mind when they're thinking about why it matters,

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or could it potentially matter that some sexual misconduct happened quite a long time ago.

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Um, but just to start it off. Obviously we're using the term sexual misconduct and historical sexual misconduct,

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but that actually covers quite a wide array of different sorts of behaviour and incidents at different levels of seriousness, doesn't it?

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And I'm wondering when you wrote this article, if you had particular levels of seriousness or particular kinds of conduct more in mind than others?

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I think I was trying to capture quite a broad range. I think one of the interesting things of the the MeToo Time's Up movement,

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which was sort of the impetus for for thinking about these issues and writing this article,

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was that certain things that in the past would have been regarded as wrong, clearly.

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Right. Rape. It's not as if people just realise that rape is wrong.

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Right. But certain things that we didn't treat as wrongful back then, or maybe not as seriously wrongful, are now being reconceived re understood.

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And so I think I was trying to capture everything from a quite serious case involving rape to forms of sexual harassment,

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sexual coercion that might be much lower level. Um, so yeah, I think I was trying to take a broad view there.

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Yeah. Um, there's a there's a general background idea here.

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I think, um, which is this notion of what's been called empathy.

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I think Kate Mann, as you said, coined, um, coined this term meaning, uh,

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the feeling of sympathy for someone who may feel that the rules of what is okay and what isn't okay, um, have changed.

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And then all of a sudden, and they can't quite keep up with it, and it's caught them unawares.

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Um, but as you say in your article, there's a certain ambiguity there, right, about what rules we're thinking about when we say,

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well, rules have changed now are they rules about what is it actually acceptable to do?

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So yes. I mean, I think there are very different ways we can conceptualise empathy if, if again,

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if we're dealing with a wrong that was clearly recognised as wrongful in the past, it's just no one was ever held accountable for it, then I,

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I don't think there's a justifiable space for empathy in that sort of situation,

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but there could be a couple different contexts in which someone might have a

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legitimate complaint that the rules have been changed on me in some respect,

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and one is something I discuss in the paper I'm sure we'll get to this is focussed around the song baby,

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It's Cold Outside and the song, if you're familiar with it,

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is the male character is pursuing and trying to get the female character to stay,

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and you're supposed to understand that he's trying to get her to stay and have sex and she's saying, no, no, no, I must go.

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And he keeps pushing. So. One way to conceptualise what was going on there.

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And this is not my interpretation. It's written by someone under the the name of Sleigh Bell who did an analysis of the the song listening

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while feminist and analysed the possibility that at the time the song was written in the 1940s,

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the social norms may have been such that really the best way to interpret what was going on.

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There was two people sort of being partners in crime and trying to subvert the conservative social

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norms that prohibit them from spending the night together and having sex outside of marriage.

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And so when she says no, he's and he continues to push it, you shouldn't see it as a sign of disrespect or undermining her autonomy.

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And you shouldn't see her eventually staying as as her being coerced into the situation.

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Instead, you just have to read it as an element of its time.

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So at some sort of high level of description, we could say,

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is it wrong to continue to try to convince someone to stay the night and have sex after they've expressed that they are going to go?

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And, you know, we might compare it to a case that received a lot of attention in recent years.

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The Aziz Ansari case, where he was alleged to have pursued a sexual encounter despite being given negative feedback,

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and it sort of parallels what was going on in that song.

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And you might say, well, at that level of description, pursuing someone who's saying no maybe wasn't wrong back then,

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if what was actually going on was that they were acting as partners in crime.

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You very nicely break down in this article the different kinds of defensive claims that people can launch,

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um, in response to an, an accusation of historical sexual wrongdoing.

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And the first one is. But that used to be okay. The second one is. But everybody used to think that that was okay.

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Can we move on to the second claim that you distinguish?

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Um, and I wonder if maybe you could just explain what would be an example of this, you know, and how is it different from the first defence?

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Right. So in that section of the paper, I was focusing on the idea of someone having a mistaken belief that their

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partners consented to sex and the question of what constitutes reasonableness.

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So if you have a reasonable, mistaken belief that your partner is consenting to sex,

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then at least as far as the criminal law is concerned, you're not criminally responsible.

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And I would suggest that it's not proper for people to blame or punish even extra legally.

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Certainly a wrong is done, right. There has been sex without consent.

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And so there is a victim. There is a wrong.

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I would suggest there's also accountability and, you know, certain sorts of accountability practices that should apply.

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But but a condemnatory response and certainly a public condemnatory response would not be appropriate in the case where there was a reasonable,

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mistaken belief that there was consent. And so what I look at is it can time impact the question of reasonableness?

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And one thing I want to push against is the argument, as you just phrased it there, and as I put it in the paper.

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But everybody used to think that was okay, as if the relevant reference were sort of the man on the Clapham omnibus,

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or the sort of average Joe on the street. Right? Because that's just a way of saying, well, everybody used to just get away with that.

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It's not. It's not really speaking to the reasonableness of the belief.

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Instead, I think we could have a situation where the reasonableness of the belief does change over

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time in virtue of the fact that it is tracking the way that people express consent.

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And so I give an example of silence and stillness, of a situation where people are engaging in sexual petting and kissing and disrobing,

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and then just before the point of penetration and the female partner just goes completely.

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As a student of mine once memorably put, it goes, all dead fish just lies there silent, still like a dead fish.

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And it has been suggested to me I didn't live during these times, but that in the past lying there silently and silly was consistent with consent.

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I've had older women tell me that, yes, that actually was a way to express consent.

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It was perfectly consistent with a consensual encounter to lie there, silly and silently.

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Nowadays, that strikes me as very inconsistent with the ways that people express consent.

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And so it's not. It's not just tracking the question of what do other people believe?

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What do people in the the position of the male about to penetrate.

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What do they typically believe? It's really more a question of how do people typically express their consent.

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And if that changes over time, then the complaint, I suppose, isn't.

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But everybody used to think that was okay.

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It should really be something more along the lines of, but that's the way that people let you know it was okay back then.

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I wonder if I can press on a particular kind of case related to this and under the heading.

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But that used to be okay, which is the case of somebody and many MeToo type revelations, I think, involved these kinds of cases, um,

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someone who behaved very badly in putting unwelcome advances, uh, towards a person,

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um, sexual assault, um, pressure, threats, coercion that were totally illegitimate.

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And at the time, it's not that they thought the person they address these threats to or pressured consented.

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They understood perfectly well in their own way that these were entirely unwelcome advances.

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That or that the only reason the person is saying yes is because they threatened them or something like that.

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So it's not that they were in the dark because of the social customs about what was going on, it's simply that they didn't care very much.

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They thought, this is just perfectly legitimate conduct to engage in.

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But the level of welcome this was not something they misunderstood or unwelcome rather, but everybody else that they had a very high tolerance.

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At the time, there was a much higher social tolerance for people engaging in this kind of behaviour.

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So it was more the case that, you know, lots of people did this and people just didn't think it was a very big deal.

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Um, and I suppose one of the things I'm thinking about is maybe low level casual sexual harassment in the workplace,

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that sort of thing where it's not like somebody could say, oh, I thought she liked it.

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It was entirely apparent that that the person didn't like it.

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It's just that this was a scene is not a big deal and fairly socially acceptable.

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So I wonder if we could go back to that kind of case. And what difference do you think it makes that if any, this, this defence that.

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Well, there was high social tolerance. Lots of people were doing it.

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Nobody thought it was such a big deal kind of defence. Great.

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So one thing I would want to do is and I fear I did this in the article, so I'll, I'll hopefully not do it in this conversation.

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I would want to avoid lumping all of a political community into people thought right there.

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Obviously, you know, political communities are complex. There's all sorts of different views.

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And, you know, feminists have been saying this stuff for a long time.

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Right. So when when people say, oh, well, people thought that was okay back then, I want to know the reference group.

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Who are you? Who thought it was okay? Right. So even before there was a word for sexual harassment, it wasn't until the early,

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late 60s, early 70s, uh, where the phrase sexual harassment even came to be a thing.

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There was still this experience. And, you know, feminists were criticising it for as long as it's existed.

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Right? So as long as feminism has been there and been a voice, it's just a question of whether or not people have been listening to it.

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Right? So so it's sort of, um, if someone says, well, people thought it was okay back then,

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they're not only they're dismissing the actual wrong that they were committing back then, so they're failing to take ownership for that.

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But they're also sort of saying,

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I get off the hook because I was blinding myself and making myself deaf to the legitimate complaints of people who did recognise this as wrong.

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Right. So I don't I guess I don't have a lot of patience for that sort of approach to these issues.

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Yeah, and I suppose some of my interest here is in and,

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and it sounds to me like maybe you think similarly is in this question of when we can fairly expect somebody to have known better.

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Mhm. Um, and you seem to be saying, well it's, it's not, it's not the case that there was no, uh, rebellion.

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It's not the case that there was no objection to this anywhere, that nobody was analysing this for what it was.

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Plenty of people were. Hence maybe there was plenty of opportunity for somebody like that to understand that what they were doing wasn't acceptable.

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So the fact that not everybody thought likewise, um, not everyone saw these things in the same way.

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And there were these feminist voices saying, but that's never been okay. It's not okay.

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It's really relevant to that question of, you know, can we expect someone to have known better at the time?

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Right. And this sort of situation pops up in all different kinds of contexts, right?

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Not just sexual wrongdoing, but a lot of historic wrongs and not even necessarily historic wrongs.

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Just sort of the basic question of when is it excusable to be ignorant here, ignorance about moral facts.

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And, you know, it tracks certain things like capacity, naivete, ability to have the opportunity to be exposed to these views.

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I mean, one can imagine, I suppose, someone who,

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despite the fact that there were feminists complaining about this sort of thing, literally never heard anyone complain.

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It never occurred to them that you complain about this just about thinkable.

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But yeah, they somehow blameless Lee lack the emotional imagination to think of it themselves.

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Right. I don't think you need feminists to tell you that it's wrong to, you know, slap one's back then secretary on the bum.

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You You just need to know that that's not how people are treated. And that you wouldn't want to be treated that way.

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So, you know, at some level of of youth, lack of capacity, lack of exposure, uh, there could be a situation where someone was blameless,

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ignorance of the moral facts that made that kind of behaviour wrongful in the past.

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But it strikes me as a fairly small group of people who would fall into that non culpable mistake.

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Mhm. So if we can move now to the third claim, the third line of defence which is.

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But that was so long ago as I understand it,

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this is a different claim in that we're moving here from the suggestion that some kind

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of behaviour wasn't actually as wrong in the past as the same behaviour would be now,

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owing to different contexts, a different social understanding around consent, for instance,

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to the different claim that it's just the mere fact that something happened so long ago in the distant past.

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That is a reason in itself to respond to it differently, even if the conduct we take, it was every bit as wrong back then.

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The idea is something like, well, it just happened too long ago to be redressing now.

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Um, that's how I understand this claim. So could you tell us a bit about how do how would the arguments go under that suggestion?

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So some arguments I put sort of to the side for the purpose of this paper, and I'm happy to talk about it now.

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But there are a whole host of considerations around procedure and proof that arise

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when we're looking at holding people accountable for misconduct in the past,

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the ability to get evidence, to get witnesses, to find reliable forms of proof over time, the way that narratives in our mind shift over time.

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It's There's a host of complaints that sort of live in that world,

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but let's imagine that we have sort of perfect proof and we can say, yes, we waited.

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We did not hold you accountable back then, but we are holding you accountable now. So I think there's a few things going on with these cases.

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But one is reflected in the law regarding statutes of limitations.

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Hmm. Statutes of limitations are legal rules that bar criminal prosecution after a

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certain amount of time has passed from the time at which the crime was committed.

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There are certain exceptions when someone tries to hide their crimes and what have you.

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But assuming that there is no attempt to to hide the crime, the statute of limitations begins to run at the time the crime is committed.

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And then the question is will it ever expire? Now, with low level crimes such as shoplifting or disturbing the peace,

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there is a Relatively short statute of limitations, and the thought is, well, it's lower level seriousness.

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We're not going to keep someone on the hook for potentially being prosecuted for the rest of their life for something so insignificant.

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But then when it comes to more serious crimes such as murder or rape, murder,

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certainly in many places, rape as well just doesn't have a statute of limitations.

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The crime can be prosecuted at any point because it's so serious.

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One of the interesting things about the MeToo Time's Up movement is that it's caused us both individually and as a society,

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to rethink what counts as a serious wrong. So while low level sexual harassment smacking a secretary's bum on back in the 1950s,

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the sort of Mad Men behaviour from that TV show, you know, either wasn't viewed as wrong or was viewed as a low level wrong.

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But now I would say,

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thankfully now we are seeing that sort of behaviour as connected to a whole range of wrongs and it is being recognised as a quite serious wrong.

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And so the question then becomes sort of what does that do to the way that we think about the extralegal statute of limitations?

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Right. And I would say that it means that we are now properly in for the first time,

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recognising what was regarded as either not wrong or not seriously wrong as quite a serious wrong.

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And thus I think it lends justification to holding people accountable for those past wrongs.

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Right. So when we're in the territory of thinking about statute of limitations, we're always having to confront just how serious is the crime?

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Because the general principle is the more serious the crime,

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the more liberal we are about statute of limitations to the point where for the most serious crimes, you don't impose them.

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But you're kind of saying, well, part of the the whole phenomenon of me too, is that we're completely reconceived.

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The level of seriousness of all kinds of different behaviours.

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And that's then going to feed into this question of how long should a person be able to

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wait until they confront a person publicly about their behaviour or using legal means?

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Right. Right. Um, something that you, I mean,

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related to this is something that you draw attention to at this point in the paper

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and is just generally this idea of delayed complaints and the suggestion that,

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uh, there's some kind of principle about sitting on your rights for too long, uh, that at some point you're right to complain kind of expires.

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And whether this could be underneath some of the thinking behind.

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But that happened to long ago. Um, so do you think there is anything whatsoever to that defence?

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So not much there.

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I'm always open to the possibility that there's aspects of this that I'm not seeing clearly enough,

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but to to complain that someone sat on their rights by not coming forward and bringing a complaint at the time that it occurred in the past,

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presupposes that something would have been done about it.

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And what we know is that, by and large, nothing would have been done about it in terms of holding the perpetrator accountable,

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and much would have been done in terms of destroying the life of the person who made the complaint.

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And I would suggest that while the latter is, I think, better than it used to be in the past.

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The problem of people still not being held accountable continued. We still have hundreds of thousands of untested rape kits.

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We have police and prosecutors who refuse to investigate and prosecute crimes of this nature.

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So. But even today, I think the the complaint that someone is sitting on their rights is not a viable complaint.

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I mean, it may be that someday when people come forward and say that they've been sexually harassed or sexually abused,

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it will be taken seriously, it will be properly investigated, and people will be held accountable.

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And if people then choose not to come forward, maybe someday there will be something to the complaint that they set on their rights.

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And thus the perpetrator shouldn't be held accountable. But for right now, I just don't think that complaint holds any water.

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So the whole question about what difference a long lapse of time makes to the

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degree of a person's blame worthiness for something that they did in the past.

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Um, we're talking exclusively about sexual wrongdoing in the past, but I think, as you mentioned earlier,

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or many of these considerations extend outside of that domain,

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there are questions we can ask about moral wrongdoing in the past of all different kinds.

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So we hear examples, for instance, of people who are caught, um, decades after committing terrible atrocities in the context of war.

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That sort of thing. You know, they're they're 95 years old, but they did this terrible thing.

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And even in that situation, when we're thinking about one of the gravest things that people can do is very serious moral crime.

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And I admit to finding myself feeling a tiny bit ambivalent about the question, well, what do we do with this person at this point?

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You know, this, you know, 95 year old person who may have very little kind of even memory, right?

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Or, you know, connection to that person that they were before.

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Um, you know, do you put that person in prison? Um, what is what is how do you redress the wrong at this point when so much time

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has elapsed and in a way you might feel we already kind of missed the chance.

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You know, justice wasn't done. Um, you know, and now there's this extremely odd person.

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And, uh, is anything going to be achieved by, uh, blaming them to the point of, you know, bringing them before the law at this point?

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And even then, I kind of even there, I find myself feeling like I'm a little bit unsure about what the correct thing to do here is.

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And I wondered if you think there are any respects in which, um,

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past sexual misconduct is set apart from other kinds of historical moral crimes, such as that some of the considerations would be different.

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Okay, so let me start by just saying sort of generally on the topic of,

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of holding people accountable for past wrongs when a long, long time has passed.

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There's a couple things that might have happened in the interim. Right?

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So one, you know, there are questions about the philosophy of personal identity that I don't think we need to get into.

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But I think even if we don't sort of run the arguments, every human being can conceptualise a way in which that felt like a different person.

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Right? The the person I was at 20 doesn't feel in some respects like the person I am now.

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And so, you know, there may be questions of who are we holding accountable? Or is this person, in salient, important respects, the same person?

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Uh, so that's just one set of considerations. I don't know that I have a very strong view on that, and I think it might differ according to the case,

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because some people may commit a horrible wrong in their youth and then completely reform their character and,

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you know, cultivate a very different set of character traits in opposition to that wrong that they've committed,

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and moreover, have spent the intervening decades recreating themselves, trying to make amends for it.

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Maybe they didn't go down to the police station or go to their victim and, and, you know, turn themselves in or apologise.

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But they did other things that that demonstrated a level of, of remorse and sort of self-imposed punishment for the wrong that they committed.

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I think that bears on the question of sort of what we should do with them at this point as well, but.

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Particularly with respect to certain kinds of wrongs. And I want to I'll focus on sexual offences, since that's what we're primarily focussed on.

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When a society finds itself in the middle of this, this what Cass Sunstein calls a norm cascade,

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where the norms are shifting and we are conservatively and intentionally taking a different view on how to think about such things.

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I think there's a risk that if we don't hold people accountable for their past wrongs.

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We are being hypocritical. Right. Um, if this is really wrong and we recognise that now, then we have some old business to attend to.

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And so I think in part because of the norm shift that's happening.

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And the what I think is, is the need to encourage that and continue it moving.

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Uh, we, we do need to look to the past and not simply say, okay, well, you know, everything before 2017 is given a pass and now we know better.

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It would be very difficult to legitimately claim that now we know better if we were willing to just give a pass to historic wrongdoing.

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I think we demonstrate our commitment to this new set of norms by looking back

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to the past and holding people accountable for the wrongs that they committed.

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Michele Dempsey, thank you very much for this. Thank you. Kate.