[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.
The topic we're discussing today is sexual wrongdoing in the past,
and I'm specifically interested in the ways in which the historical element of
certain sexual misconduct claims affect how people think about that past wrong,
and both in terms of how wrong was it when it was in the distant past,
and also the degree of the perpetrators blame worthiness for wrongs that they've done a long time ago?
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
separating out the potentially very different things that people might have in mind when they're thinking about why it matters,
or could it potentially matter that some sexual misconduct happened quite a long time ago.
Um, but just to start it off. Obviously we're using the term sexual misconduct and historical sexual misconduct,
but that actually covers quite a wide array of different sorts of behaviour and incidents at different levels of seriousness, doesn't it?
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?
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,
which was sort of the impetus for for thinking about these issues and writing this article,
was that certain things that in the past would have been regarded as wrong, clearly.
Right. Rape. It's not as if people just realise that rape is wrong.
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.
And so I think I was trying to capture everything from a quite serious case involving rape to forms of sexual harassment,
sexual coercion that might be much lower level. Um, so yeah, I think I was trying to take a broad view there.
Yeah. Um, there's a there's a general background idea here.
I think, um, which is this notion of what's been called empathy.
I think Kate Mann, as you said, coined, um, coined this term meaning, uh,
the feeling of sympathy for someone who may feel that the rules of what is okay and what isn't okay, um, have changed.
And then all of a sudden, and they can't quite keep up with it, and it's caught them unawares.
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,
well, rules have changed now are they rules about what is it actually acceptable to do?
So yes. I mean, I think there are very different ways we can conceptualise empathy if, if again,
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,
I don't think there's a justifiable space for empathy in that sort of situation,
but there could be a couple different contexts in which someone might have a
legitimate complaint that the rules have been changed on me in some respect,
and one is something I discuss in the paper I'm sure we'll get to this is focussed around the song baby,
It's Cold Outside and the song, if you're familiar with it,
is the male character is pursuing and trying to get the female character to stay,
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.
And he keeps pushing. So. One way to conceptualise what was going on there.
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
while feminist and analysed the possibility that at the time the song was written in the 1940s,
the social norms may have been such that really the best way to interpret what was going on.
There was two people sort of being partners in crime and trying to subvert the conservative social
norms that prohibit them from spending the night together and having sex outside of marriage.
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.
And you shouldn't see her eventually staying as as her being coerced into the situation.
Instead, you just have to read it as an element of its time.
So at some sort of high level of description, we could say,
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?
And, you know, we might compare it to a case that received a lot of attention in recent years.
The Aziz Ansari case, where he was alleged to have pursued a sexual encounter despite being given negative feedback,
and it sort of parallels what was going on in that song.
And you might say, well, at that level of description, pursuing someone who's saying no maybe wasn't wrong back then,
if what was actually going on was that they were acting as partners in crime.
You very nicely break down in this article the different kinds of defensive claims that people can launch,
um, in response to an, an accusation of historical sexual wrongdoing.
And the first one is. But that used to be okay. The second one is. But everybody used to think that that was okay.
Can we move on to the second claim that you distinguish?
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?
Right. So in that section of the paper, I was focusing on the idea of someone having a mistaken belief that their
partners consented to sex and the question of what constitutes reasonableness.
So if you have a reasonable, mistaken belief that your partner is consenting to sex,
then at least as far as the criminal law is concerned, you're not criminally responsible.
And I would suggest that it's not proper for people to blame or punish even extra legally.
Certainly a wrong is done, right. There has been sex without consent.
And so there is a victim. There is a wrong.
I would suggest there's also accountability and, you know, certain sorts of accountability practices that should apply.
But but a condemnatory response and certainly a public condemnatory response would not be appropriate in the case where there was a reasonable,
mistaken belief that there was consent. And so what I look at is it can time impact the question of reasonableness?
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.
But everybody used to think that was okay, as if the relevant reference were sort of the man on the Clapham omnibus,
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.
It's not. It's not really speaking to the reasonableness of the belief.
Instead, I think we could have a situation where the reasonableness of the belief does change over
time in virtue of the fact that it is tracking the way that people express consent.
And so I give an example of silence and stillness, of a situation where people are engaging in sexual petting and kissing and disrobing,
and then just before the point of penetration and the female partner just goes completely.
As a student of mine once memorably put, it goes, all dead fish just lies there silent, still like a dead fish.
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.
I've had older women tell me that, yes, that actually was a way to express consent.
It was perfectly consistent with a consensual encounter to lie there, silly and silently.
Nowadays, that strikes me as very inconsistent with the ways that people express consent.
And so it's not. It's not just tracking the question of what do other people believe?
What do people in the the position of the male about to penetrate.
What do they typically believe? It's really more a question of how do people typically express their consent.
And if that changes over time, then the complaint, I suppose, isn't.
But everybody used to think that was okay.
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.
I wonder if I can press on a particular kind of case related to this and under the heading.
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,
someone who behaved very badly in putting unwelcome advances, uh, towards a person,
um, sexual assault, um, pressure, threats, coercion that were totally illegitimate.
And at the time, it's not that they thought the person they address these threats to or pressured consented.
They understood perfectly well in their own way that these were entirely unwelcome advances.
That or that the only reason the person is saying yes is because they threatened them or something like that.
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.
They thought, this is just perfectly legitimate conduct to engage in.
But the level of welcome this was not something they misunderstood or unwelcome rather, but everybody else that they had a very high tolerance.
At the time, there was a much higher social tolerance for people engaging in this kind of behaviour.
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.
Um, and I suppose one of the things I'm thinking about is maybe low level casual sexual harassment in the workplace,
that sort of thing where it's not like somebody could say, oh, I thought she liked it.
It was entirely apparent that that the person didn't like it.
It's just that this was a scene is not a big deal and fairly socially acceptable.
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.
Well, there was high social tolerance. Lots of people were doing it.
Nobody thought it was such a big deal kind of defence. Great.
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.
I would want to avoid lumping all of a political community into people thought right there.
Obviously, you know, political communities are complex. There's all sorts of different views.
And, you know, feminists have been saying this stuff for a long time.
Right. So when when people say, oh, well, people thought that was okay back then, I want to know the reference group.
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,
late 60s, early 70s, uh, where the phrase sexual harassment even came to be a thing.
There was still this experience. And, you know, feminists were criticising it for as long as it's existed.
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.
Right? So so it's sort of, um, if someone says, well, people thought it was okay back then,
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.
But they're also sort of saying,
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.
Right. So I don't I guess I don't have a lot of patience for that sort of approach to these issues.
Yeah, and I suppose some of my interest here is in and,
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.
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.
It's not the case that there was no objection to this anywhere, that nobody was analysing this for what it was.
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.
So the fact that not everybody thought likewise, um, not everyone saw these things in the same way.
And there were these feminist voices saying, but that's never been okay. It's not okay.
It's really relevant to that question of, you know, can we expect someone to have known better at the time?
Right. And this sort of situation pops up in all different kinds of contexts, right?
Not just sexual wrongdoing, but a lot of historic wrongs and not even necessarily historic wrongs.
Just sort of the basic question of when is it excusable to be ignorant here, ignorance about moral facts.
And, you know, it tracks certain things like capacity, naivete, ability to have the opportunity to be exposed to these views.
I mean, one can imagine, I suppose, someone who,
despite the fact that there were feminists complaining about this sort of thing, literally never heard anyone complain.
It never occurred to them that you complain about this just about thinkable.
But yeah, they somehow blameless Lee lack the emotional imagination to think of it themselves.
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.
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.
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,
ignorance of the moral facts that made that kind of behaviour wrongful in the past.
But it strikes me as a fairly small group of people who would fall into that non culpable mistake.
Mhm. So if we can move now to the third claim, the third line of defence which is.
But that was so long ago as I understand it,
this is a different claim in that we're moving here from the suggestion that some kind
of behaviour wasn't actually as wrong in the past as the same behaviour would be now,
owing to different contexts, a different social understanding around consent, for instance,
to the different claim that it's just the mere fact that something happened so long ago in the distant past.
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.
The idea is something like, well, it just happened too long ago to be redressing now.
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?
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.
But there are a whole host of considerations around procedure and proof that arise
when we're looking at holding people accountable for misconduct in the past,
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.
It's There's a host of complaints that sort of live in that world,
but let's imagine that we have sort of perfect proof and we can say, yes, we waited.
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.
But one is reflected in the law regarding statutes of limitations.
Hmm. Statutes of limitations are legal rules that bar criminal prosecution after a
certain amount of time has passed from the time at which the crime was committed.
There are certain exceptions when someone tries to hide their crimes and what have you.
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.
And then the question is will it ever expire? Now, with low level crimes such as shoplifting or disturbing the peace,
there is a Relatively short statute of limitations, and the thought is, well, it's lower level seriousness.
We're not going to keep someone on the hook for potentially being prosecuted for the rest of their life for something so insignificant.
But then when it comes to more serious crimes such as murder or rape, murder,
certainly in many places, rape as well just doesn't have a statute of limitations.
The crime can be prosecuted at any point because it's so serious.
One of the interesting things about the MeToo Time's Up movement is that it's caused us both individually and as a society,
to rethink what counts as a serious wrong. So while low level sexual harassment smacking a secretary's bum on back in the 1950s,
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.
But now I would say,
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.
And so the question then becomes sort of what does that do to the way that we think about the extralegal statute of limitations?
Right. And I would say that it means that we are now properly in for the first time,
recognising what was regarded as either not wrong or not seriously wrong as quite a serious wrong.
And thus I think it lends justification to holding people accountable for those past wrongs.
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?
Because the general principle is the more serious the crime,
the more liberal we are about statute of limitations to the point where for the most serious crimes, you don't impose them.
But you're kind of saying, well, part of the the whole phenomenon of me too, is that we're completely reconceived.
The level of seriousness of all kinds of different behaviours.
And that's then going to feed into this question of how long should a person be able to
wait until they confront a person publicly about their behaviour or using legal means?
Right. Right. Um, something that you, I mean,
related to this is something that you draw attention to at this point in the paper
and is just generally this idea of delayed complaints and the suggestion that,
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.
And whether this could be underneath some of the thinking behind.
But that happened to long ago. Um, so do you think there is anything whatsoever to that defence?
So not much there.
I'm always open to the possibility that there's aspects of this that I'm not seeing clearly enough,
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,
presupposes that something would have been done about it.
And what we know is that, by and large, nothing would have been done about it in terms of holding the perpetrator accountable,
and much would have been done in terms of destroying the life of the person who made the complaint.
And I would suggest that while the latter is, I think, better than it used to be in the past.
The problem of people still not being held accountable continued. We still have hundreds of thousands of untested rape kits.
We have police and prosecutors who refuse to investigate and prosecute crimes of this nature.
So. But even today, I think the the complaint that someone is sitting on their rights is not a viable complaint.
I mean, it may be that someday when people come forward and say that they've been sexually harassed or sexually abused,
it will be taken seriously, it will be properly investigated, and people will be held accountable.
And if people then choose not to come forward, maybe someday there will be something to the complaint that they set on their rights.
And thus the perpetrator shouldn't be held accountable. But for right now, I just don't think that complaint holds any water.
So the whole question about what difference a long lapse of time makes to the
degree of a person's blame worthiness for something that they did in the past.
Um, we're talking exclusively about sexual wrongdoing in the past, but I think, as you mentioned earlier,
or many of these considerations extend outside of that domain,
there are questions we can ask about moral wrongdoing in the past of all different kinds.
So we hear examples, for instance, of people who are caught, um, decades after committing terrible atrocities in the context of war.
That sort of thing. You know, they're they're 95 years old, but they did this terrible thing.
And even in that situation, when we're thinking about one of the gravest things that people can do is very serious moral crime.
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?
You know, this, you know, 95 year old person who may have very little kind of even memory, right?
Or, you know, connection to that person that they were before.
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
has elapsed and in a way you might feel we already kind of missed the chance.
You know, justice wasn't done. Um, you know, and now there's this extremely odd person.
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?
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.
And I wondered if you think there are any respects in which, um,
past sexual misconduct is set apart from other kinds of historical moral crimes, such as that some of the considerations would be different.
Okay, so let me start by just saying sort of generally on the topic of,
of holding people accountable for past wrongs when a long, long time has passed.
There's a couple things that might have happened in the interim. Right?
So one, you know, there are questions about the philosophy of personal identity that I don't think we need to get into.
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.
Right? The the person I was at 20 doesn't feel in some respects like the person I am now.
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?
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,
because some people may commit a horrible wrong in their youth and then completely reform their character and,
you know, cultivate a very different set of character traits in opposition to that wrong that they've committed,
and moreover, have spent the intervening decades recreating themselves, trying to make amends for it.
Maybe they didn't go down to the police station or go to their victim and, and, you know, turn themselves in or apologise.
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.
I think that bears on the question of sort of what we should do with them at this point as well, but.
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.
When a society finds itself in the middle of this, this what Cass Sunstein calls a norm cascade,
where the norms are shifting and we are conservatively and intentionally taking a different view on how to think about such things.
I think there's a risk that if we don't hold people accountable for their past wrongs.
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.
And so I think in part because of the norm shift that's happening.
And the what I think is, is the need to encourage that and continue it moving.
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.
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.
I think we demonstrate our commitment to this new set of norms by looking back
to the past and holding people accountable for the wrongs that they committed.
Michele Dempsey, thank you very much for this. Thank you. Kate.