It is being reported that the government intend to offer posthumous pardons to gay men who were convicted historically for sex crimes. The Ministry of Justice has said they will partially follow Lord Sharkey’s recommendations in amending the Protection of Freedoms Act 2012. Rather than investigate individual cases or single out any particular individuals, the government will offer a blanket pardon for all those convicted of previous sexual offences that would now be considered legal. You can read reports in The Guardian, Independent, Telegraph and BBC.
Whilst many seem to welcome this move, it is not without its problems. I should point out here that my concern has absolutely nothing to do with the rightness or wrongness of the existing law. My issue is specifically with this particular use of the posthumous pardon. And I think it is an issue for at least five reasons.
It is a misunderstanding of the nature of pardons
Traditionally, posthumous (or, even, antemortem) pardons were granted to those who were wrongly convicted of the crime with which they were charged. The case of Derek Bentley is a good case in point. Bentley was considered to have been wrongly (or, at least, unfairly) convicted of murder, and received an official pardon in 1993. Posthumous pardons are not generally for those who, though rightly convicted under the laws of the time, we have come to view as innocent according to our modern social mores which are reflected in current law.
The move by the government to posthumously pardon all those previously convicted of sexual offences, even though we may agree that they never should have been convicted, is a misuse of the principle of a posthumous pardon. As social attitudes change, as do the laws that inevitably reflect them, it is quite natural to look back and consider certain convictions as wrongful. This, however, is best reflected in changes to existing law not in posthumous pardons that were, according to the laws and attitudes of the day, entirely right and legitimate.
It is partisan and unfairly applied
It does not seem unreasonable to ask why those who commit some historic crimes are given blanket pardons because of shifts in our attitudes whereas others are not. What is it about homosexual men being convicted of sexual offences that warrants unquestioning pardon but no such pardon is forthcoming for those historically convicted of heresy, blasphemy and attempted suicide? In all these other cases, we have changed the law to reflect the fact that we no longer believe rejection of particular religious views, or a desperate person seeking to take their own life, are worthy of prison. We have not, however, trawled the annals of history to pardon all those convicted of such things, irrespective that our view has since changed on the rightness of seeking conviction in these cases.
And, of course, how could we ever apply posthumous pardons this way? We would forever be rewriting history. Unless we are inclined to offer posthumous pardons to every single person convicted of anything we now deem lawful, does it not seem a little inconsistent to single out those convicted of historic sexual crimes?
It attempts to rewrite history
Anybody who has ever studied history will know that historic events are rarely a reflection of the world as we would like it to be. Given this, in broad brush terms, there are two approaches we can take. Either we assess history on the terms in which it happened, and draw appropriate lessons from it, or we attempt to sanitise history for a more palatable take on how things were. A good case in point is the #RhodesMustFall campaign going on around Oxford.
Posthumous pardons of this sort not only miss the point of the posthumous pardon, they are an attempt to sanitise bits of history that we don’t like. The truth is that people like Oscar Wilde and Alan Turing were correctly convicted according to the laws of the day. Now, we may not like those laws – we may even consider them draconian and wrongheaded and are delighted they have been repealed – but it doesn’t change the historic reality that the convictions were correct according to the laws in place at the time. To offer a posthumous pardon is to say the judge and jury at the time misapplied the law. The truth of the matter, unpalatable to us as it may be, is that they did not.
It is nothing more than virtue signalling
We live in troubling days. It is no longer acceptable to merely do the right thing, one must evidently think and believe the right things too. Not only must we think and believe the right things, we must visibly display that we so think and believe them. If we do not, we are put on trial by the liberal elites who have so determined what right thinking people ought to believe.
Such an approach has given rise to virtue signalling. Virtue signalling is the empty, platitudinous attempt to show that one believes the right things and so ingratiate oneself to one’s audience. The great shibboleth of our time is homosexual rights. Those who do not affirm homosexuality without question, support gay marriage and seek to advance it at all possible opportunities are considered illiberal, unloving, unthinking, bigoted and other such pejoratives. Very few MPs were openly against the introduction of gay marriage and those who were very quickly have to recant or explain themselves carefully to recover any political credibility (one is put in mind of Stephen Crabb as a pathetic case in point).
To offer posthumous pardons to those convicted of historic sexual crimes is nothing more than virtue signalling to ingratiate oneself to liberal media elites who so drive public opinion. It is a move does nothing, in reality, for people like Wilde and Turing who have long since died. Nor does it do anything for the living since such laws have long since been removed from the statue book and, whatever stigma may still attach to the issue, it most certainly does not flow in any way from the convictions of historic figures for these now archaic crimes.
What is unfortunate is that in offering this empty gesture, another message is clearly sent. If all historic crimes were equal, if we repeal laws we no longer believe to be a problem but never posthumously pardon those rightly convicted according to the laws of the time, there would be no issue. Society, and our ever changing law, would move on and we would all recognise that those historically convicted were unfortunate enough to live in another era where such things were deemed punishable by law. Sadly, in offering a blanket posthumous pardon for some historic crimes and not others, we simultaneously send the message that homosexuals convicted due to different social mores were wrongly convicted whilst the masses of Protestant and Catholic martyrs put on trial, under attitudes similarly alien to contemporary thought, were rightly burnt at the stake. It is all very well seeking to manifest the right virtues but there seems to be no recognition that such a move sends an inadvertently unpleasant message to all those convicted of other things we no longer consider just and equitable.
It distracts from the real problems facing the country
If this move to posthumously pardon is of no genuine benefit to the dead, and of no actual value to the living, why on earth are politicians proposing it? There are two primary reasons that spring to mind. First, as noted above, it sends a signal that they manifest the right virtues. They think and believe all the right things and so ingratiate themselves to those they believe matter. But second, it distracts from the pressing issues facing the country.
Let’s be honest, what is to lose here from a party whose own leader recognises have a tendency to be ‘the nasty party’? An empty pardon, signalling the right virtues, will go some way to undercutting that view. All whilst actually doing nothing of value for anybody. What better way to distract from their austerity plans, their freeze on funding departments, refusal to plug the funding gap in the health service, plans to limit benefits to those who desperately rely upon state help and refusal to do anything for refugees clamouring to get into the country. Likewise, the SNP have sought an amendment suggesting a blanket pardon for the living (dubbed the #TuringBill). Aside from the obvious problem of potentially pardoning those who in no way ought to be, like the Tories in England, this is simply a way to stop proper scrutiny of their own policies in Scotland. It takes up parliamentary time and diverts attention away from real, live issues. If homosexual rights are the great shibboleth of our time, how easy it is to stir up faux-hysteria and earn some brownie points by doing absolutely nothing.
Does anybody really believe this move is genuinely the most pressing issue facing the country? Yet, read the papers, and this utterly valueless bit of gesture politics has garnered more support and space than many pressing social issues directly affecting a much wider proportion of people in tangible ways everyday. It seems unfortunate that there are groups and individuals so wedded to the idea of the primacy of sexual rights in public life, the belief that it is the virtue to trump all virtues, that this thinly veiled attempt to distract from meaningful issues is being lauded as a progressive and vital step forward. Surely we can do better than pretend this meaningless gesture represents some great leap forward. It does seem to be an attempt to distract from what really matters and, what seems saddest of all, it does seem to be working.