In last year’s rather splendid film An Officer and a Spy, the show begins dramatically: Captain Alfred Dreyfus is publicly stripped of epaulettes, braid and buttons, and his sword is ceremonially snapped. The French ruling class closes ranks, giving substance to the act of symbolic degradation as the ex-captain, now convicted traitor, is shipped off to serve his time in French Guiana.
A scandal in Australia this month suggests some uncanny parallels with the Dreyfus affair. The circumstances may be more genteel, and the stake respectability rather than liberty. But the events leave an uncomfortable suspicion that things may not have changed as much as we like to think. Moreover, as yet there is little sign of much uneasiness about the affair, and certainly no-one is standing in the wings to shout J’Accuse.
Seven years ago Dyson Heydon, now 77, retired from the bench at the High Court of Australia (Australia’s supreme court), where his career had been one of moderate distinction. Before that he had been an Oxford don, worked as a very successful Australian lawyer and academic, and written a number of very respectable books on the law. He was known and respected as an erudite conservative, with little time for modish intellectual fads, and also as something of a ladies’ man not averse to a drink.
In 2015, two years after Heydon retired, six female employees at the High Court complained that while a Justice he had made passes at them. A closed non-judicial internal investigation was engineered by the complainants’ lawyers, where they apparently faced no cross-questioning; this decided that they had to be believed and that the allegations amounted to sexual harassment. On 22 June the result of the investigation was splashed over the Sydney Morning Herald, which went further in the next two days and printed allegations of similar episodes involving other complainants.
The fall was swift, as the Australian professional and political classes closed ranks. Although Heydon denied (and continues to deny) all the allegations, the present Chief Justice took it for granted that he must be guilty and issued an official public apology for what he had done; the previous Chief Justice joined her in pointing the finger of blame; and the leader of the Sydney bar duly followed suit in a Herald op-ed. A leading Labor politician called for Heydon to be immediately stripped of the Order of Australia; the Prime Minister intervened with a statement that the matter was “very disturbing”; and (of course) lawyers for the women concerned, who indeed had engineered the investigation in the first place, said that they were in advanced negotiations with the government over payment of compensation.
In other words, officialdom has now made up its mind that Heydon is a disgraced serial abuser, and is now concerned more with public image and damage limitation than with looking at the matter in the round or allowing him to clear his name. But this is as nothing compared with the reaction of the Australian professional class: in particular, legal profession and legal academics. Sydney Law School, where Heydon taught until 1981, and where retired professors become emeriti as a matter of course, seems poised to drop him from its books like a hot potato. Lawyers and academics alike have uniformly assumed his guilt, with suggestions uniformly trashed that he might just have received something less than due process. There have been calls for the full weight of the criminal law to be thrown at him. From now on, the almost universal line runs, he must live in infamy, remembered only as a serial sex pest, and not as a well-educated and competent judge. Professors of law have said, apparently seriously, that he is now so toxic that anyone should think twice about asking students to read any of his judgments or writings; and it seems a leading online law bookstore in Australia has taken the hint and pulled all his titles. Politically, the Left is piling in, referring to him as a Liberal Party poodle because he was appointed by John Howard, despite the lack of any serious evidence of political bias on the bench. Even at the supposedly impartial ABC, the national broadcaster, a journalist who read his lawyers’ denial of the charges against him cheerfully tweeted back “Tell them yourself, Dyson Heydon”, leaving no doubt where she herself stood.
The new professional class has a single-minded determination to get rid of anyone it disapproves of
If you are feeling sensitive, don’t read on. There is another side to the story which needs to be told.
First, this whole affair shows neatly how in the eyes of academics, lawyers and the Australian liberal establishment sexual harassment now has iconic status: it’s up there with racism, homophobia and other forms of original sin. Ideas of proportion or degree just don’t come into it. This should worry anyone. It’s perfectly possible to prefer that people didn’t engage in the kind of behaviour that used to be euphemistically called WHT (wandering hand trouble), but nevertheless to see that referring to Heydon using terms such as “serial abuser” or “sex pest” is problematic. For one thing it makes it more difficult to apply those terms to those who really deserve them: whatever Heydon is (assuming the allegations against him are true, which we don’t know), Harvey Weinstein he clearly isn’t. More to the point, the allegations are actually quite mild. No-one suggests corruption (of the form “your virtue or your job”), or violence. We are talking, at worst, about clumsy attempts at chatting-up by a tipsy middle-aged man with a hand sometimes going where it shouldn’t until he’s told to remove it. True, in strict law the sea-green incorruptible Robespierres of #MeToo are right when they say that this is indecent assault. But (whisper it quietly, since this is highly unfashionable) the episodes here are very much at the lower end of the scale: indeed, a cynic might ask how many people in an entirely consensual relationship can say, hand on heart, that it has never involved some technical illegality of this sort. Even if such conduct is proved, that it should cause a man to slide from distinction to obloquy like someone landing on the long snake at the top of the Snakes and Ladders board seems difficult to justify.
Secondly, it is worth asking another unfashionable question: why should these allegations about a long-retired judge be regarded as a particularly big deal? The question is important: after all, even if true what is alleged seems to have precious little relevance to his judging, his teaching or his writing. Why not, especially if one is an academic whose job it is to sift facts and exercising judgment, simply refer to Heydon as an admirable lawyer and scholar who unfortunately had a seamy personal side, and leave it at that?
Unfortunately this shows up another feature of the predominantly left-leaning professoriate, which unlike most of the rest of us is in equal measure unhappy with the idea of personal agency, and obsessed with the notion of a deep, controlling and malign patriarchal structure permeating society. To them there can be no question of separating good from bad, or arguing that a person in Heydon’s position might just be able to put aside his personal in favour of his professional life. For them the only relevant matters are not individual but social and political. In so far as it reflects power relations and the prevalence of patriarchy, their argument goes, a lawyer’s sexual predation and the misogyny that goes with it cannot but affect his judging and writing, since law itself is about power. This is not the place to debate such issues, though it is noteworthy that they are suspiciously abstract and largely unverifiable. But it is interesting that it seems to be regarded as something of an article of faith, and that it never seems to be suggested that those with (say) advanced feminist or pro-trade union views are unable to put those aside when judging individual cases.
We don’t know at this stage what will happen to Dyson Heydon. He continues to deny the allegations against him: he may come out fighting, or wearily consent to becoming an unperson in the legal community. He may even end up being prosecuted criminally. At this stage it is wrong to prejudge the issue. But one thing is clear: this episode shows very neatly the intolerance of the new professional class, its lack of any idea of either proportion or relevance, and most worryingly of all its single-minded determination to get rid of anyone it disapproves of, whatever it takes.
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