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Postmodern Justice

Updated: Feb 14, 2023



What’s the worst thing that you could imagine happening to you? Incurable disease? Losing a loved one? Homelessness? How about being convicted of sexual assault, on sanity threateningly spurious grounds? The impact of definition-creep on male mental health statistics needs to be taken seriously. Men of any age facing the stigma of allegation, investigation, trial and imprisonment for what were so often drunken moments of misunderstanding, blown out of proportion into traditionally heinous crimes, are in as parlous a psychological state as any other victim-in-waiting. Whatever Morgan Freeman’s character in The Shawshank Redemption said, not every man in prison is protesting innocence – but approximately 20% are. After witnessing the postmodern justice practiced by a cash-strapped police, CPS, court and legal aid system, there is no reason not to believe a single one of them.


The 21st century British prison is indeed the ‘interesting sociological experiment in diversity’ as observed (non-verbatim) by Sir Conrad Black and the Reverend Jonathan Aitken. When it comes to the factually guilty of elderly offenders, it is not only the grandfather you are convicting, it is his wife, sister, daughter, dozen close family and hundreds if not thousands of friends and loved ones gathered over decades; all shocked, grieving and shamed-by-proxy.


‘Search engines and record checks mean that for an offender of previously good character, merely having a conviction has become a life-blighting punishment in itself’[1]


In so many conversations with these gentle-men, the message is the same: arrest, bail, investigation and trial were enough, very nearly sent them mad or to suicide, and near as dammit broke the family. The life shredding processes were more than punishment for the actions- of vastly differing degrees of seriousness – that mostly happened aeons ago, some remembered, most not.


The body fully changes every seven years, every cell replaced: the mind mellows, and people intuitively know that. They have become different men, borne of the changing, transforming nature of experience. Incarcerating the senile, frail, sorrowful, spiritual and often repentant is a problematically draconian business. If we accept new scientific evidence that our nature-nurture pre-wiring is beyond free will, and that free will is in fact thus a myth, then this does a double injustice to these ageing ASCSOs (alleged so-called sex offenders).


If the public aren’t satisfied with already dehumanising investigation and trial rites by fire, then fines and behavioural courses may be appropriate, if the accused still has a social role to carry out. The victims’ feelings of course need to be taken into account, but in a balanced, mature, circumspect (as opposed to politicised) way. If the feeling of victimhood is encouraged without limit, it gets increasingly harder to break out of a presumably unintended negativity spiral that serves only media consumption figures. The victim thinking about the often-subconscious motivations of their historical perpetrator would be a useful and humane idea: a good place to start, at least, potentially decades after the fact.


This is in no way meant to minimise any pain, historically rooted or present. But putting away thousands of septua- (and increasingly octo-) genarians, including punishing their unsuspecting friends and families isn't the answer either. Peaceful reconciliation, limited compensation, behavioural courses, direct apology and the plain truth of open (but not public) trials, in the enlightenment as opposed to postmodern tradition, may be atonement enough. Let they who are without sin cast the first stone. And let's not even get started on the malicious accusers.


‘The wife of one CCRC [criminal cases review commission] applicant told us that the body “needs to be more cautious in their assumption that an investigating police officer has behaved with integrity and honourable intent.”’[2]


If Britain wants to regain any of its increasingly lost Enlightenment reputation, it needs to reassert the primacy of evidence before emotions in the courts. Sexual assault law is now highly counter-intuitive and relies on theoretical arguments about a by now near- historical patriarchy for its continued existence. It's an inversion of justice achieved in the supposed search for equality, but it’s far from abstract: it’s affecting thousands of men up and down the country on a punitively intensifying, violent prison-balancing basis.


‘Overall, I think the criminal justice situation, and consequently the nature of miscarriages of justice and the extent of miscarriages of justice, is actually far worse than when I started out.’[3]


There is at least the architecture to enjoy at some Victorian prisons. For a PMI (Prisoner Maintaining Innocence) it is a choice between living in a state of constant simmering rage, waiting for a justice that might never come, or trying to see the best in the ambience and those around you. Many prisoners complain about prison’s greyness, bleakness, oldness and ‘deteriorating fabric’. Aspects of these things are why some love it. The buildings and layouts are actually beautiful, if viewed objectively. They become unwilling and unchosen homes but homes all the same. It’s the character and history that appeals (if you're the kind of person who appreciates history and character). If you can’t see through the restrictions to a cheerful present, then I suppose it's all the sadder; but also speaks to a certain stubbornness of mind and pleasure in complaint which can become the habit of the prisoner regardless of where s/he is. The ancient granite, strong structures, domineeringly bleak styles and circular logic are architecturally beautiful, and sometimes up to 200 years old. If only some had chosen to just visit as opposed to staying for years on end.


Postmodernism was a term originating from an attempt to harmonise the traditional with the modern in the creation of a new culture, and frequently resulted (and still results) in architectural, artistic and musical chaos. The creation of Tony Blair’s Third Way policies was a result of the blending of left and right politics, and arguably a postmodern development. 21st century culture attached this concept to politics and created a new kind of ‘other’: the white, middle-class, middle-aged male as alleged so-called sex offender, and the only remaining group in society it is permissible to demonise, in an attempt to alleviate the assumed guilt of social progress. UK prisons are the warehouses for this new societal vanguard, for better or worse.


The news is increasingly an entertainment business that profits through conflict. The number of ‘vulnerable’ prisoners pouring into the prison estate are making the system question its very classification of criminals, since these new lags rarely engage with gang related behaviour, bullying, discrimination, wing trade or associated violence. They may be occasionally subjected to such things, but their accidental takeover of this traditionally macho, ‘career criminal’-type realm is at least confusing for all involved. But isn’t that how postmodernism identifies itself in culture anyway? Society can’t seem to handle the multi-faceted vocalisation of the human condition anymore, as that is in conflict with necessary media-narrative good/bad binaries.


‘Imprisonment entails deprivation and sensory overload at the same time’.’[4]


A recent sex scandal a-la Harvey Weinstein of Kevin Spacey will certainly help focus the attention of a jury. These alleged ‘sex attackers’, as defined by the intensity desired by the reporter or editor reporting, are then bundled up with various insufficiently risk-averse stalkers, (cyber) flashers, groomers, photo librarians and pseudo-Cliff Richards in penitentiaries in far flung corners of the UK.


Most non-violent claims of sexually inappropriate behaviour would be much better heard in no fault truth and reconciliation tribunals, along the lines of the post-apartheid model used in South Africa in the 1990s. This would not only detoxify the possibility of life-destroying allegations being unravelled in trials-by-media, but they would also provide an ‘out’ for complainants who so regularly claim that they ‘didn’t think it would go this far’. Electronic tagging and rolling licences, policed by a better funded probation service which paid closer, dedicated attention to issues such as homelessness on release and non- attendance at post-conviction support groups seem to be more effective, with even some prisoners grudgingly acknowledging their benefits.


While the BTV (Believe The Victims) policy at the trial stage has become a politically loaded, grossly unfair albatross around the Ministry of Justice’s neck, alleged victim-alleged perpetrator healing sessions may yield more humanistic, holistically beneficial results. The criminal justice system puts great stock in keeping the two parties apart, but personal testimony bears out that it cannot only help the genuine victim recover from the perceived infraction committed, but the reflection this inspires in the perpetrator is deeper and more affecting than any amount of prison jargonara, however well meaning.


‘What is needed is not necessarily to change someone from a” sex offender” to an ex- offender but to help them see that they were never a “sex offender” in the first place, that the phrase was never an accurate descriptor of who they were.’ [5]


Therapeutic communities such as those at HMPs Grendon and Warren Hill, the progressive wing at HMP Berwyn or the one-time Enabling (E) wing at Dartmoor had, pre-covid lockdown, signalled a good way forward. In place of noise, shame, debt and violence there was discussion, honesty, clear-eyed living and calm. These surely must be a better route for the future, on whichever side of the wall you currently reside.


For people in a certain position, alcoholic inebriation is apparently no defence in some allegations, though precedent is sketchy and contradictory. If two people willingly choose to alter their inhibitory environment, then not having this choice as a defence against contested allegations is counter intuitive.


The sexual liberation cultural revolution of the 1960s and 70s was clearly a phenomenon of the simulacra, the children of it left to swing in the branches long after the tree had been cut down. This hyper-mediated change clearly didn’t in fact actually happen, beyond the introduction of the birth control pill and the interest of the metropolitan media. And then if it did affect some-swingers and the like-most towns, villages and the countryside were in fact totally oblivious to its intrinsic progressiveness.


‘“It doesn't matter what you do, things are done to you, and you just have to deal with that process... I couldn't be honest because if I was honest, they would say I was wrong...” Another young man said that he found that a female officer had put in a similar report for making a “flirtatious comment” when he said he like her new haircut.[6]


Non-adversarial solutions depend on both parties taking some responsibility for contested situations: this is in no way ‘victim-blaming’, and there is necessarily no shame in it. Good psychology goes way beyond the gender disparity that seems to surround us in the media. In the Oxford English Dictionary, the word ‘rape’ is (still) defined as the act of forcing someone to have sex against their will. Regretted or submissive sex does not figure, and there is no known public mandate for the change. The twisting of meaning from something not there to something there is a semantic inversion of reality.


The terms false allegation and miscarriage of justice are just as unhelpful as the words victim or vulnerable, due to overuse stripping them of power and meaning. This scope expansion was due to too many men being seen by the media as ‘getting away with it’, and along the way folding most/all men into the envelope of toxic patriarchy. Now all kinds of once progressive ‘new men’ such as Pete Townshend or Paul Gambaccini were considered as guilty under a vast spectrum of immoral sexual behaviour, as the crassest of changing room jocks.


Every journalist and politician from the prime minister down would put ‘violent and sexual crimes’ in the same coupling, marrying the two unmentionables in the mediated mind. The impression given was that they are beastly, connected, automatically worthy of prison borderline unforgivable. Most violent offenders would be horrified to be lumped in with most ASCSOs, and it’s a similar story vice versa: each think that what the other is alleged to have done is pretty much the worst thing in the world. That very stigmatising is very likely part of the psycho-spiritual plan. Remove the traditional machismo from violent crimes by lumping them in with the new social untouchables/deplorables. Upon putting everyone in the same prison, they relatively quickly realise that the other is a human being, and everyone lives happily ever after. Ok it's a bit more nuanced than that, but as Germaine Greer and Sir Kenneth Clarke have intimated there is surely quite a difference between someone who violently assaults someone unprovoked, and someone who makes an ill-advised, mutually regretted romantic move after a glass of wine too many.


‘Separating VPs [vulnerable prisoners] from “mainstream” prisoners might keep them safe, but it also institutionalises the idea that these are two categories of people and enables a ritualised form of bullying.’[7]


No, the sober mind says, you should have known better, and now you’ll spend eight-plus years learning how it is to live secluded away with real, experienced, with-intent criminals. Lumping violent and sexual offenders together conceptually will not reduce the number of either group of crimes being committed (both falling), but it will go a long way to further hollowing out the parlous mental state of the collective male psyche, already on the ropes as it was. We are catastrophizing life experiences on a regular basis, and it’s scraping resilience and resolve to the bone.


As Joe Public seems to forever say, gleefully projecting himself with a too much enthusiasm into the psyche of every accused so-called sex offender going, leopards apparently don’t change their spots. People’s innate desires may indeed be set, and their inhibitor switches harder to reach, but some people are about simply getting things out of their systems, not just doing them over and over again. The repetition-creating dopamine feel-good hits by enacting damaging behaviour pattern isn’t necessarily a motivating factor in more exploratory, experimental behavioural types. This is why the ‘leopard doesn’t change its spots’ opinion is absolutist and inaccurate.


Probation officers and wing staff are apparently often on the lookout for related minimising and mirroring behaviours. Minimising is referring to an alleged offence in terms of ‘I don’t know what the big deal is’ or ‘I think it might have been blown a bit out of proportion’ – which opinion is now indictable, presumably as it seems to ignore the feelings of the alleged victim. Mirroring is when a prisoner mimics activities, behaviour or language that might lead to offending ‘on the out’, i.e. wolf whistling, jokes about the vast spectrum of abuse pathologies or other humorous mentalities that tend and are intended to take the edge off the innate or implied seriousness of things.


‘Because of the lockdown, most of the prisoners I share my accommodation with spend their days playing video games and doing drugs... it seems reasonable that to let people get high is a good compensation for the restrictions imposed upon them and helps to keep them quiet. However, what is the point of this all?’[8]


Minimising and mirroring as rehabilitation are the enforced manipulation of how an individual thinks and feels about their alleged offences and are incidentally applied as readily to prisoners maintaining innocence as to the acknowledged guilty. This is thus stick and carrot psychological abuse, under-laid by a presumption that the Ministry of Justice is infallible and is moreover conditioning behaviour through language. The fact that an ex-chief inspector of prisons recommended that the populations of the Isle of Wight's prisons needed courses to counter their ‘in denial’ status demonstrates how the system thinks on this subject. They do not like to be wrong.


Most ASCSOs have more in common with their incarcerating prison staff than do the mainstream prisoner population. By this I mean that if you think past the more gruesome tabloid headlines, they were people leading what they considered to be a traditionally non-criminal lifestyle, however much that description might have changed in the eyes of the law.


A criminal lifestyle was still observable in more than 50% of the prison population, marked by a survivalist mind set: coercive, transactional relationships, people seen as commodity rather than human, evasiveness, intimidation, machismo and what has become called gaslighting (or other forms of psychologically twisting form of manipulative bullying). These can be quite proudly worn by their bearers, and are often accompanied by tattoos, muscles, minimal but branded clothing and/or a drug habit. It’s a clichéd but unfortunately accurate picture of the criminal prisoner in the popular imagination: easily boxable.


‘The consistent and fair application of rules which are understood and appear legitimate and justifiable to people in prison are often associated with lower rates of assaults.’[9]


The so-called sex offender these days has more in common with the white collar prisoner portrayal of Tom Hanks in ‘...Shawshank’ than Jimmy Savile in his half-brown tinted shades. Inside from between eighteen months to fifteen years for alleged offences ranging from upskirting and cyber-flashing to the keeping of restricted images to fiercely contested allegations of the various levels of marital or statutory sexual assault, the rap list rarely reflects a frame of mind from which the alleged offender needs to be rehabilitated: more like a historical period of life through which he has passed, but that society isn’t so keen on forgetting.


That society, and at least its tabloid press readers and criminal justice system, isn’t Interested in claims of obliviousness, morphing standards or cultural climate, or factual claims of innocence based on the lack of actual evidence. For the real sex offender and the created, imagined, industrialised one – and everyone knows ‘one’ these days – they are a newly manufactured, freshly-feared breed. This square peg doesn’t fit into its designated round hole because it’s the justice system trying to keep up with the pace of change, and the MoJ needs its conceptual people-boxes as much as everyone else seems to. Essentially every male, online or off, is a presumed sex offender now, and every female a victim.


‘Those with prison governance responsibilities will need to acknowledge the diverse forms of masculinities present in prisons and recalibrate policy and practice to meet the needs and responsibilities of men in their care.’[10]


There is a rehabilitative emphasis in prison on ‘change’. This comes from the assumption that the prisoner is guilty of that for which they are in prison, and doesn’t take into account false or spurious allegations or even full blown miscarriages of justice. So the default position of the Prison Reform Trust and other Howard League for Penal Reform type organizations is that of the MoJ – which is that miscarriages of justice don’t happen, and all prisoners thus deserve to be in prison.


With half the inmates in the Isle of Wight protesting innocence of the crimes for which they've been committed, as opposed to simply labelling them ‘in denial’, maybe the MoJ and other organizations should investigate independently as to why this is? Blank dismissal of these prisoners’ claims is inhumane, undemocratic and unjust.


So as to the rehabilitative aspect of prison being used as an opportunity for the prisoner to ‘change their life around’, this was a helpful guideline for the mainstream career criminal that has had enough of the game and the people it hurts. NOT for the spuriously convicted ASCSO, supposed infractions committed possibly years ago (if most involved can remember them), and which aren’t politically or financially motivated or supported.


‘Progressing Prisoners Maintaining Innocence [PPMI] explained that: “For an innocent person to be convicted is such a shock they often cannot muster engagement with the appeal process, so they are then too late to attempt application.’


Most prisoners are working towards leaving prison, following their sentence plans, mindful of their OASys reports, focusing on hope and good behavior in the vast majority (something rarely focussed on by salaciously-minded TV documentary makers). With this in mind, it’s hard to get them interested in the betterment of their immediate environment. They’re not saints or monks, they’re (hopefully ex) lawbreakers.


What happens to prisoners and prisons after they’ve gone is not their interest, and compassion that pretends it is, is rare. That kind of turnaround in people cultured in such a way is very unusual. We surely know this intuitively, and any pretence that it is not the case is pure naïveté.


By a similar measure at the other end of the spectrum, prison being held out as the ultimate sanction to boundary-stepping politicians and other public figures means that perceptions of the kinds of positive change mentioned remain as the bogeyman. You can’t live the dichotomy of prison as positive place of rehabilitation and also hold it out as the scariest stick with which to beat errant demagogues. Postmodern justice hangs suspended in a delicate balance of reason.


In the mid-2010s the Crown Prosecution Service began to enact the opening up of the New Labour government’s 2003 sex laws, fully utilising the balance of probabilities principle, and were soon following a ‘believe the victims’ policy in investigating claims. This amounted to guilty findings based essentially on gossip, and increasingly on social media-based lynch mobs.


The allegedly biased mainstream media was thirty years into a mocking/demonization policy on able bodied, white, middle-aged men, and this helped re-present everyone from Pete Townshend to Gerard Depardieu to Ronaldo as if not rapists per se, then by principle of scope creep, significant participants in ‘rape culture’


The adversarial courts and affiliated staff were affected and demotivated by austerity driven funding cuts, leaving scores of thousands of allegations being made by an overly victimised public where only a small percentage would up with a conviction, and even then, a very spurious, he said/she said one.


The non-disclosure of evidence in the Liam Allan case, the BBC's casual overzealousness in the unfounded Cliff Richard investigation and the final nail in the coffin of Carl ‘Nick’ Beech’ and his fantastical accusations of establishment figures (leading Labour MP Tom Watson to brand them ‘evil’) led the already incredulous judge Sir Richard Henriques to officially discredit the 'believe the victims’ policy. The College of Policing however continued to use the policy.


‘A convicted defendant has 28 days to apply for leave to appeal, leaving little time for the kind of investigation that might uncover new evidence, or for issues such as police misconduct to be exposed.[11]


According to the European Journal of Probation, between 2002 and 2014 the percentage of alleged so-called sex offenders in the prison estate increased by 111%. This surely looked more like design than coincidence. There are thousands of (mostly) men in prisons up and down the UK who are either factually innocent of the crimes for which they’ve been convicted or are themselves the scalps of a victim-perpetrator cultural revolution which redefines and relabels the traditionally very serious crime of sexual assault as any kind of unwanted sexual contact, whatever the context.


Part of the solution would be to remove the ‘coming forward’ incentive of up to £20,000 compensation, and to hear the allegations on non-adversarial, fact-finding truth and reconciliation tribunals. If nothing else, at least require jury members to explain their decisions, if contested (as is the case in Portugal).


As Sir Kenneth Clarke hinted in his ‘less serious’ rape observation (for which he was roundly Twitter-shamed a few years ago), and as Germaine Greer pointed out with her ‘it’s just women moaning about having bad sex’ comment, women and men across the country feel that the effect of sadistic, violent sex attacks – vanishingly rare – is being made less serious by being lumped in with what are more often drunken one night stands and related misadventures.


The scales on one side of this delicate balance are unjustly weighted by the cultural weight of toxic identity politics, and as such the system needs an urgent reset.

[1] Let the punishment fit the criminal. Ben Leapman. Crime and Consequence. Lemos & Crane. 2019. [2] In the Interests of Justice. Westminster Commission report on Miscarriages of Justice. P47. 2020. [3] Ibid., Dr Dennis Eady. P14. [4] Loneliness in Prison. Ben Crewe et al. P11. 2021. [5] Power, shame and social relations in prions for men convicted of sexual offences. Dr Alice Levins. Prison Service Journal no 251. p10. 2021. [6] Ibid., p7. [7] Ibid., p4. [8] A CAPPTIVE snapshot of life under covid. Open prison respondent. Prison Service Journal. P19. 2021. [9] Bromley Briefings Prison Fortfile. P13. Winter 20. [10] Made by men for men? Omar Phoenix Khan. Prison Service Journal no. 257. P45.2021. [11] In the Interests of Justice. Westminster Commission for Miscarriages of Justice. P17. 2020.


By Sean Bw Parker


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