We can do better than the capitalist court system

Workers' movement: Bureaucratic ‘justice’ and dealing with sex assault cases

How should the left deal with serious allegations made by one member against another? Mike Macnair looks at the limits of what is possible

In recent weeks Paul Demarty and Ben Lewis have commented in this paper on the politically significant effective silence of the Morning Star’s Communist Party of Britain and of the Socialist Party in England and Wales on the crisis engulfing the Socialist Workers Party triggered by the treatment of rape allegations against leading militant ‘comrade Delta’. This silence, the comrades suggested, reflected common features of these organisations’ political culture with that of the SWP.

Comrade Lewis’s second article on March 13 drew attention to the point that SPEW might have its own skeletons in its cupboard round similar issues, noting the publication of allegations of domestic violence against Rail, Maritime and Transport union assistant general secretary and SPEW member Steve Hedley. At around the same time comrade Hedley resigned his SPEW membership, no doubt after ‘encouragement’ from the leadership - the right course of action, though arguably somewhat belated.1

Now another issue has appeared on the web. The names are published and there is therefore no point in attempting to anonymise them. Cardiff SPEW activist Sara Mayo in November 2012 accused fellow SPEW member, Remploy trade union consortium national convenor Les Woodward, of sexual assault (in this case groping in a pub, rather than, as in the Delta case, rape). Allegedly, in the internal disciplinary process Woodward admitted the event, though saying he was too drunk at the time to remember much, and apologised for it. Mayo was dissatisfied that the resulting SPEW disciplinary process did not result in Woodward’s expulsion, and continued to raise the issue both in political discussion, and by way of appeal to the SPEW appeals committee (AC).

The SPEW leadership took the view that open discussion, and appeal to the AC, were incompatible courses of action, and instructed her to take down Facebook postings on the topic. Woodward now brought a cross-disciplinary charge accusing Mayo of attempting to deny him the rights of a member to participate in the organisation’s activity. The SPEW AC decided to hear both Mayo’s appeal and Woodward’s complaint together. Socialist Party Wales has published a slightly redacted version of an April 10 letter to Mayo from Hannah Sell, attacking Mayo’s conduct and providing a good deal of detail of the case and the disciplinary process, which was circulated at least to SPEW members who had been in Facebook communication with Mayo;2 and Mayo in response to this letter on April 11 resigned from SPEW and issued a public letter, attacking Sell for ‘victim blam[ing]’ Mayo and “directly trying to make [SPEW] unsafe for” her.3

‘Delta’ and Woodward

This will inevitably be added by commentators to the Delta case as yet another example of misogyny in ‘Leninist’ groups; so it is worth flagging up what is common to both cases and what is different between them.

Both cases concern allegations of serious sexual offences under the criminal law, of a sort which are usually about the assertion of power over women by men, brought not before the courts but before left organisations’ disciplinary procedures. It is, of course, true that the starting point in rape sentencing would be five years,4 while sexual assault of the type complained of in the Woodward allegations would normally attract a non-custodial sentence.5 But that should not minimise the significance of the latter offence.

Both cases involve substantial age differences and power differentials apart from gender between the alleged perpetrator and victim - middle-aged men and much younger women, ‘important’ men and ‘less important’ women. Again the Delta case would be more serious if the allegations were true, since the complainant was of school age, albeit over the age of consent, at the relevant date, and Delta was her (and other SWP members’) line manager under the regime operated by the SWP. Mayo is older and a trade union militant herself,6 while Woodward is an important trade union leader, but not in direct authority over Mayo.

In both cases, the effect of the matter being dealt with by the party’s internal disciplinary procedures is that it now probably practically cannot be dealt with by the courts. The reason is that the evidence of possible witnesses has been ‘contaminated’ by their examination in a pseudo-judicial context in the process of the disciplinary procedure.7 In neither case, however, would a prosecution be particularly likely; outside of the context of child sex abuse, the substantial delay in complaint, present in both cases, inevitably affects complainant credibility to juries and hence the police’s and Crown Prosecution Service’s prosecution decisions. This fact is a problem (because the psychosocial dynamics of rape and other sexual assault commonly produce delayed complaint without there being real implications for complainant trustworthiness) and one which the courts and CPS are trying to address;8 nonetheless it is a real factor in prosecution decisions.

In both cases, the trigger for the allegations being publicised widely was the attempt of the organisation’s leadership to prevent their being publicised, by cracking down on Facebook conversations. Again there is a difference here: the SWP leadership pre-emptively expelled the ‘Facebook Four’, while the SPEW leadership merely circulated to the participants in the Facebook discussion a letter denouncing Mayo’s conduct as unprincipled.

Members of the SWP central committee and their supporters accused their opponents in the organisation of “creeping feminism”. Hannah Sell’s letter says: “Today the EC is preparing material taking up the mistaken ideas of petty bourgeois feminism, in contrast to working class, socialist feminism, and we are happy to engage in debate around this and other questions relating to the specific oppression of women.”

The overall narratives of the allegations have a certain similarity to the issues of sexual predators among Catholic priests and the church’s response - about secrecy and cover-ups - and to the Jimmy Savile case: in particular, the role of secrecy/confidential treatment of allegations in preventing Savile’s exposure before his death. Indeed, the public climate created by these issues is probably significant in relation to the fury created by the Delta case.

There are three other significant differences. The first, and perhaps the most important, is that unlike the Delta case, Sara Mayo’s allegations against Les Woodward appear from what has been published to have been undisputed in the disciplinary process except for quite marginal points. Sell’s letter reports that Woodward has put his hand up to the charge and apologised. The issue is then quite simply what the appropriate penalty should be: expulsion? Or something less?

The second is that Delta was a full-time worker for the SWP and had been in a position of authority in the SWP. The question of allegations of abuse of power and a possible cover-up therefore immediately implicated the SWP’s internal regime. In contrast, Les Woodward is a trade unionist and convenor who has been engaged in a stubborn, albeit largely losing, battle against the employer and the government - not a SPEW centre bureaucrat. He also has multiple disabilities, so that the ‘competing oppressions’ can of worms comes into play.

The third, which perhaps follows from the first two, is that what we have in SPEW is - so far - the resignation of an individual member, not a full-blown party crisis like that in the SWP.

The problems posed are two very similar, interrelated, but not identical, issues. The first is that of socialist groups not doing better than the capitalist legal system in relation to sexual assault. The second is that of socialist groups doing worse than the capitalist legal system on the same issue.

Doing no better

The capitalist legal system does very badly in relation to sexual assault allegations. An enormous number of cases go unreported, except to criminological studies which invite by questionnaires anonymous reporting of victimisation and of offending. Among cases reported to police there is a huge ‘attrition rate’ between reporting and prosecution, and one which in recent years has grown, possibly because there is an increase in reporting. Among cases prosecuted, the acquittal rate is relatively high.9

There is an underlying problem here which is probably not soluble within the framework of capitalist justice. It is certainly not the case that sexual assault is publicly taken by capitalist law to be acceptable: it is in formal terms unambiguously criminalised (and has been for a very long time).10 The problem is that the judicial process - especially in connection with the consent defence, but also if less clearly on the ‘nothing happened’ defence - tends to convert the allegation that the defendant has committed a crime - ie, engaged in conduct unacceptable to society - into a privatised individual contest between complainant and defendant about who is to be believed. In this privatised individual contest the victim experiences again the isolation and powerlessness of the original attack.

There is a curious feature of the problem: both anecdotal evidence from prosecutors and experimental evidence from mock juries suggest that in ‘acquaintance rape’ cases where consent is at issue women jurors are less likely to believe the complainant than male jurors.11 It is possible that there is a connection of some sort with the phenomenon of women policing other women round issues of appearance.12

‘Individualist feminists’ argue that the solution is self-defence: ‘God created men and women - Colonel Colt made them equal.’13 This is, however, certainly not a solution to the problem of ‘acquaintance rape’: you can hardly be expected to hold a gun on a date when deciding whether or not to go to bed with him, even if holding a gun on your ex who comes around hassling you is a bit more reasonable. Moreover, homicide, even in self-defence, is for the overwhelming majority of non-psychopaths severely psychologically traumatic.14 And we are a very long way from a mass women’s movement into firearms possession and training even in the US, let alone elsewhere.

An alternative non-judicial solution is building solidarity for the victims of sexual assault. This was the original conception of Rape Crisis centres, which later mutated into a form of professional social work.15 The arguments of comrades of the Radical Anthropology Group suggest that ‘counter-dominance’ solidarity can revolutionise social and gender relations, and it has been claimed that in pre-class societies matrilineal and matrilocal marriage arrangements have the effect of improving the solidarity women can expect from their siblings (male and female) in relation to other men, including husbands.

The difficulty is that the aim of building solidarity with the victim or potential victim against the offender is inconsistent with the individualising forms of the capitalist16 process of adjudication. In modern English law in particular (here US law is different) publicity solidarising with the victim against the defendant, where a prosecution is pending, amounts to contempt of court and may even prevent the case being tried - on the ground that it may prejudice the jury against the defendant. A certain amount of caution is also genuinely necessary: the News of the World’s 2000 campaign to ‘name and shame’ paedophiles notoriously produced, among other gross errors, vandalism of the home of a paediatrician.17

It is this contradiction between adjudication and collective action which is engaged in the efforts of the SWP leadership to avoid publicity in the Delta case (here the SWP is more defendant-friendly than English law, which currently gives anonymity to the complainant, but not to the defendant, in rape cases) and the SPEW leadership’s claim that Sara Mayo seeking solidarity on Facebook is inconsistent with her pursuing an appeal to the AC (and Woodward’s complaint against Mayo, that she is attempting to exclude him from party activities).

It is straightforwardly impossible for the left to create real ‘safe space’ in the sense of somewhere free of sexual assaults. We live in a class society, and therefore in a sexist society. Even if we went down the road - tried repeatedly in the past - of creating select groups of the pure in heart (or rather in politics), we would fail to achieve this aim. But it is possible, though difficult, that the left could improve on the norms of capitalist justice. To do so would require above all else creating some more space for solidarity with the complainant than at present exists.

Doing worse

Even if doing better than capitalist justice is difficult, surely at least we should be able to do as well. But the disciplinary practices of the main left groups do not do as well as capitalist justice.

‘Not only must justice be done; it must also be seen to be done.’ This tag has a curious immediate origin: a 1923 judgement about the appearance of judicial bias by lord chief justice Lord Hewart, a man who was notoriously bad at avoiding judicial bias himself.18 It nonetheless states succinctly a very important principle of adjudication, which has two aspects - one generally accepted since Roman times, the other variable between periods and currently debated.

The generally accepted principle is that the judges should be not only actually unbiased between complainant and defendant, but that they should have no connections with either side which could make them appear to be biased. The routine practice of left, and indeed other, political parties of handling disciplinary allegations at branch level or in leading committees appears to violate this principle, but, as long as what is being dealt with is merely violation of collective decisions, what is involved is just the right of a voluntary association to disassociate from others: ie, to split.

Where, however, the disciplinary process is dealing with allegations which are criminal under the general law, this is much more problematic. It is also more problematic where, as in the SWP disputes committee, a body is represented as independent and quasi-judicial, but is in fact an arm of the bureaucratic apparatus (the SPEW AC seems better here). It is quite plain that justice is not ‘seen to be done’; this is a routine aspect of the SWP’s disciplinary procedures, and the Delta case merely provided a spectacular display of the problem.

The second and debated principle is that justice should be open. There is a current running debate about the Justice and Security Bill, having now passed both houses of parliament and awaiting royal assent, which among other things makes provision for more secret trials.19 It has been sharply attacked by civil liberties campaigners - and by the SWP.20 The year 2011-12 saw debate about ‘super-injunctions’ which ban reporting of legal proceedings.21

The fundamental reasons for open justice are twofold. The first is that it is very questionable how far we should trust judges. In the absence of open justice, judges are more likely to operate in a biased way (and, indeed, to take bribes). Openness offers a limited possibility of oversight of the very extensive powers of judges. The second is that trials are concerned not only with providing a remedy for the claimant or complainant, but also with signalling clearly social disapproval of the defendant’s conduct. This signal is completely absent where the whole proceeding is secret, and where only the outcome (conviction or acquittal) is reported it is very much weaker than in a public trial.22

Open justice has been more variable in history than the demand for judges to be independent of the parties. In ancient Athens and republican Rome, criminal (and some civil) trials were conducted openly before large panels of lay citizen judges. With the replacement of the republic by the empire, there was a gradual shift into more or less secret cognitio enquiries before officials acting as judges - perhaps beginning with treason cases - also accompanied by a spread in the use of torture from slaves to lower-class citizens (humiliores).23

The fall of the western empire produced in the early medieval period a return to lay and public collective courts and assemblies.24 On the continent, from the 13th century there was a gradual revival of the Roman imperial model of private enquiry by the judge (and also of the use of torture) starting with treason and heresy, the period’s equivalent of ‘terrorism’, but eventually extending to most serious crime.25 England took a different path, the mutation of trial by jury (originally merely an official enquiry among locals) into public trial. By the 1460s, Sir John Fortescue in his De laudibus legum Angliae (On the praises of the laws of England) identified the open trial (and the non-use of torture) as a particular virtue of English as opposed to French law. The reasoning was adopted by numerous later authors and formed part of the ideology of the English revolutions of 1641-60 and 1688.26

There is a pattern here. The ideological shift towards secret trials which is now manifest should be seen as a symptom of the decline of capitalism, part of which is a shift into increased control by the state bureaucracy - analogous to the decline of the antique mode of production in the Roman imperial period and of the decline of feudalism in the development of European absolutism and in the Tokugawa Shogunate (which also introduced secret trials) in Japan.

What, then, are we to make of the fact that the normal practice of ‘control commissions’, ‘disputes committees’ and ‘appeals committees’ in left groups is secret trials - and of the defence of this practice of secrecy which was expressed both in the expulsion of the ‘Facebook Four’ in the SWP and in Sell’s letter to Mayo in SPEW?

This is part of a more general practice of secrecy, which is linked to control of the organisations in question by the full-time, bureaucratic apparatus and the ‘career’ lay leaders linked to this apparatus. The apparatus/leaders are asserting a private property right to the control of information and its flow against the membership, and against the working class as a whole, which is no different to the claims of Trafigura and other super-injunction claimants. This is, incidentally, our answer to those on the left who accuse the Weekly Worker of ‘gossip’ and of publishing private or confidential information: comrades, if you are going to create something superior to capitalism, you will have to accept the end of secrecy.

We cannot altogether do without apparatus and leading committees, because the result would be complete inability to reach collective decisions and breakdown even of collective discussion (as can be seen in the wildernesses created on left bulletin boards and on the comments pages of left blogs). The idea of doing without leaders is an illusion: ‘leaderless’ forms of organisation actually produce leaders, but unaccountable ones. Transparency combined with freedom to organise against the leadership - freedom of factions, freedom of caucuses, and so on - at least create the possibility of partial accountability of the leadership.

What are the implications of this for the problem of sexual assault? There are two fundamental issues. The first I have already addressed: the problem of solidarity for the victim, versus the individualising character of the capitalist trial. If contempt-of-court rules limit the possibilities of solidarity with the victim, secret trials practically preclude solidarity with the victim.

The second is an important empirical observation made by academic ‘offender studies’ in the US. ‘Acquaintance rapists’ turn out to be likely to be serial offenders and to display the same psycho-sexual/gender attitudes as ‘stranger rapists’. They are merely cleverer in victim selection.27 One consequence28 is that publicity of trial - and of the name of the defendant - is of fundamental importance to any use of trials to combat the practice of sexual assault. The story of assault told by one woman (‘V’) about individual ‘R’ may be a lie (though the CPS has found very low frequency of such lies), or be a result of real confusion about consent. But if the result of publicity given to V’s story is that several other women come forward with similar stories about R, there is a considerable probability that R is, in fact, a sexual assailant and a repeat offender.

The result is that the left organisations’ practice of secret trials is unambiguously worse than the (current) capitalist judicial system - and especially worse in the context of the problem of sexual assault.

Now step sideways. Suppose that the left were to abandon central structures on the basis of the manifestly corrupt and useless character of the existing regimes - but to retain the practices of secrecy/confidentiality, imagining that the underlying problem is sexism or that it is only ‘leaderships’ or ‘bureaucracies’ which are to blame. The result would be substantially the same as the present problem with the left organisations trying to handle sexual assault allegations: because the problems of secret trials and individualisation would go unaddressed.

We could do better than these disputes show us doing. But the core of doing better is to create more transparency - and by doing so to enable more solidarity.




1. The dispute is ongoing: Steve Hedley has put his side of the story (http://stevenhedley.wordpress.com) and Caroline Leneghan’s RMT rep, Andy Littlechild, has published a statement contesting this statement, which has, in turn, been sharply criticised (http://libcom.org/news/steve-hedley-not-cleared-domestic-violence-case-still-answer-08042013).

2. www.socialistpartywales.org.uk/HSletter-SM10-04-13.pdf.

3. http://shortarguments.wordpress.com/2013/04/11/sara-mayos-resignation-from-the-socialist-party-her-letter-to-hannah-sell.

4. www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/sentencing.

5. www.cps.gov.uk/legal/s_to_u/sentencing_manual/s3_sexual_assault.

6. She can be seen speaking on behalf of Cardiff Trades Union Council on a demonstration at www.youtube.com/watch?v=XSnb2xrot6M, and reported a Wales regional Socialist Women’s meeting in The Socialist in December 2012: www.socialistparty.org.uk/campaign/Women/Abortion/15822.

7. See G Davies, ‘Contamination of witness memory’ in A Heaton-Armstrong, E Shepherd and D Wolchover (eds) Analysing witness testimony London 1999, chapter 2. Cf also www.barstandardsboard.org.uk/code-guidance/guidance-on-witness-preparation. Legal understanding of the risk is ancient: M Macnair The law of proof in early modern equity Berlin 1999, pp178-79.

8. See www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/societal_myths/#a10; R v D (JA) [2008] EWCA Crim 2557.

9. See, for example, C McGlynn, ‘Feminism, rape and the search for justice’ (2011) 31 Oxford Journal of Legal Studies pp825-42 (arguing for a ‘restorative justice’ approach as a solution); H Reece, ‘Rape myths: is elite opinion right and popular opinion wrong?’: http://ojls.oxfordjournals.org/content/early/2013/03/13/ojls.gqt006.full.pdf+html, reported in a summary way in The Guardian and The Independent March 25 2013 (mainly for the figures rather than the arguments; Reece is a writer for Spiked, and the argument shows some capital-L Libertarian ‘spin’).

10. OF Robinson The criminal law of ancient Rome Baltimore MD 1995, pp71-79; GDG Hall (ed) The treatise on the laws and customs of the realm of England commonly called Glanvill [c1190] Oxford 1993, book 14, chapter 6, pp175-76. More recent references would be redundant.

11. Prosecutors: JO Savino and BE Turvey (eds) Rape investigation handbook San Diego CA 2011, pp480-81, from the US; I have also heard the statement made orally by prosecutors from the UK. Mock juries: JS Batchelder, DD Koski and FR Byxbi, ‘Women’s hostility toward women in rape trials’ American Journal of Criminal Justice Vol 24, pp181-200 (2004).

12. http://feminismsaywhat.blogspot.co.uk/2012/04/rip-her-to-shreds-women-policing-women.html.

13. Cf IA Larish, ‘Why Annie can’t get her gun: a feminist perspective on the Second Amendment’ 1996 University of Illinois Law Review pp467-508, online at www.saf.org/LawReviews/Larish1.html.

14. D Grossman On killing: the psychological cost of learning to kill in war and society Boston MA 2009.

15. NA Matthews Confronting rape: the feminist anti-rape movement and the state London 1994.

16. I say capitalist here because in pre-capitalist societies there are instances in which adjudication confronts claimant/complainant and his or her supporters with defendant and his or her supporters: eg, W Davies and P Fouracre The settlement of disputes in early medieval Europe Cambridge 1986 passim.

17. The Daily Telegraph September 3 2000.

18. R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256; JJ Spigelman, ‘Seen to be done: the principle of open justice’: www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/vwPrint1/SCO_speech_spigelman_091099.

19. http://services.parliament.uk/bills/2012-13/justiceandsecurity.html.

20. Civil liberties campaigners: eg, http://ukhumanrightsblog.com/tag/secret-trials; Socialist Worker February 15 2013, very briefly; stronger articles at Socialist Appeal: www.socialist.net/secret-courts-and-democratic-rights.htm; WSWS: www.wsws.org/en/articles/2013/03/09/secu-m09.html. Another side of the ‘debated’ quality is that academic Joseph Jaconelli in 2002 published Open justice: a critique of the public trial (Oxford), which concludes that “The idea of trial as public spectacle is very deeply rooted in the legal procedures of mankind. That it should be so has been seen, in modern times, as being to the advantage of the accused. It may serve to expose bias against the accused, but it is also capable of working to the advantage of the prosecution ... Perhaps the time has come for a reassessment in view of the crude and unpredictable nature of trial-generated publicity” (p355).

21. Convenient summary at http://en.wikipedia.org/wiki/2011_British_privacy_injunctions_controversy.

22. J Jaconelli Open justice: a critique of the public trial Oxford2002, chapter 2 has a different summary of reasons for open justice.

23. Athens: DM McDowell The law in classical Athens New York 1978, chapters 2 and 16, is a convenient summary. Rome: Robinson (above, note 10), chapter 1 similarly summarises the development.

24. W Davies and P Fouracre The settlement of disputes in early medieval Europe Cambridge 1986 (there is extensive other literature).

25. Continental evolution (eg, on privacy): J Hilaire, ‘Enquêter et débattre: la décision judiciare au Parlement de Paris’ in R Jacob (ed) Le juge et le jugement dans les traditions juridiques européennes Paris 1996; torture: J Langbein Torture and the law of proof Chicago 1976 (for the development more than the theory).

26. Cf M Macnair The law of proof in early modern equity Berlin 1999, pp247-48, 286.

27. Convenient summary at www.feministe.us/blog/archives/2010/03/25/predator-theory.

28. Another is that the ‘dark figure’ of unreported rapes is likely to overstate the number of men who commit rape, because the repeat offenders are responsible for considerably more than their share of rapes. This might help us understand the ‘juror problem’: female jurors focussing on the victim’s credibility, while male jurors may be slightly more likely to regard the defendant’s story as incredible.