Ship of Fools: Alan Turing--possible pardon?

Thread: Alan Turing--possible pardon? Board: Oblivion / Ship of Fools.

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Posted by Golden Key (# 1468) on :

The British Parliament may pardon computing pioneer Alan Turing, who the gov't drove to suicide for being gay.

About time? Too little, too late?

Posted by Adeodatus (# 4992) on :

It's a fairly empty gesture, I think. There are probably dozens of men in Britain - maybe more - who were convicted of having underage sex when the age of consent for gay men was 18 or even 21. Let's see them pardoned.

Posted by lilBuddha (# 14333) on :

Both?

Posted by ExclamationMark (# 14715) on :

quote:
Originally posted by Golden Key:
The British Parliament may pardon computing pioneer Alan Turing, who the gov't drove to suicide for being gay.

About time? Too little, too late?

Turing was prosecuted for activity that was an offence - at that time. To pardon Turing now, however tragic the outcome of the case, would mean in fairness a pardon to everyone else convicted under the same law (and of others), where such behaviour and/or actions is no longer illegal.

I can't see that happening and so it smacks rather of a government seeking to buy publicity.

Posted by Anglican't (# 15292) on :

I completely agree, EM. He was tried, fairly, under the law as it existed at the time. If the law is wrong it should be changed (which it was, thankfully). I don't see why Turing should be a special case just because he did some good things with computers.

Posted by Albertus (# 13356) on :

If Turing's conviction was solely for consensual gay sex, and he were alive today, he would be able to apply to have the conviction disregarded. According to the UK government's official guidance, "a successful applicant will be treated in all circumstances as though the offence had never occurred and need not disclose it for any purpose. Official records relating to the conviction that are held by prescribed organisations will be deleted or, where appropriate, annotated to this effect as soon as possible thereafter."
So the conviction is not quashed as such but it is treated as if it had never happened.
Personally, I think there's a fine but defensible difference between allowing an act of oblivion for someone with an historic conviction for something that would not now be a crime (because that is addressing, not the conviction then, but the effect of it now), and attempting to write today's standards onto the past in the case of people now dead. If you start with this kind of poisthumous pardon- which is different from a posthumous pardon for someone who was not actually guilty of a crime at the time of their conviction- where do you stop? Do you posthumously pardon everyone who has been convicted of any offence that has now been removed from the statute book? All you can say is that society's values have changed and that- in this case- you are glad that they have.

Posted by 3rdFooter (# 9751) on :

I think I would argue for him not to be pardoned and this is why.

-As pointed out above, there is a sense that the 'pardon' creates an assumption that the offence, against the law at that time, never happened and the prosecution is expunged from the record.

-The pardon is irrelevant to Alan Turing now and only speaks to society now and in the future.

-I would argue that such a pardon is an attempt to soothe our own conscience about the implications of historical judgements.

-Whereas if the indictment stands in the record, it stands as a lesson in history and Alan Turing remains a representative for many who were persecuted by the state for being homosexual.

Posted by Matt Black (# 2210) on :

Newspaper article last week (I think in the Independent) was calling for him to be given a plinth, not a pardon. I think that's about right, as it would recognise his vital wartime contribution without causing the sort of ethical-legal problems of a pardon which have already been mentioned.

Posted by Albertus (# 13356) on :

Yes, agreed. There's no particularly importnat connection between the two, after all.

Posted by Erroneous Monk (# 10858) on :

"Pardoned" implies he did something wrong and society is deciding to let him off. Surely the (secular) point is that he did nothing wrong, so what is required is some kind of official recognition that the law was wrong. I'm not sure we have a process for that.

Of course this would apply equally to other activities that were considered criminal in unenlightened times.

Posted by Porridge (# 15405) on :

I'm always bemused by actions like these. The legislature where I serve voted in our most recent session to free a clutch of (originally) African slaves, residents of our state, who have been dead some 300 years.

Yes, I voted for the measure, and yes, I thought it profoundly silly. It's not as though legislatures around the world have a shortage of problems to solve that might alleviate the sufferings of living people they currently represent.

I suppose the symbolism involved serves some small purpose. It makes the affected legislature appear morally thoughtful and temporarily unified. (Our measure had a handful of nay votes first time through; a move to reconsider resulted in unanimity.)

In the case of this measure, why not pardon Oscar Wilde, too? He contributed much to English letters.

Posted by L'organist (# 17338) on :

I agree, EM: to grant a pardon implies that he committed and offence - which he did, according to the law at the time.

It all boils down to the problem of 20/20 hindsight and trying to judge the past by the standards, laws and mores of today: on the whole trying to sort out one case is going to lead to a myriad other instances of people who are considered equally "deserving" - so then have a mass "pardon"?

And all those agitating for a re-examination of the Turing case and application of today's moral judgements to offences of 60+ years ago consider this: are you one of those who yet thinks the strictures against same-sex relationships and masturbation in the Bible should be enforced rigorously in the 21st century?

More thought, less comment - or let sleeping dogs lie, just acknowledge that the law in general at the time was unfair and out of kilter with more modern values.

Posted by Anglican't (# 15292) on :

quote:
Originally posted by Porridge:
In the case of this measure, why not pardon Oscar Wilde, too? He contributed much to English letters.

I'm a little uneasy about the selective nature of the measure. Gross indecency was a crime. I don't think you should be able to get off that crime because you happen to be good with computers or can write amusing plays, which these posthumous pardons sort of say, in a round about way. Everyone should be equal under the law.

Posted by Sioni Sais (# 5713) on :

quote:
Originally posted by Erroneous Monk:
"Pardoned" implies he did something wrong and society is deciding to let him off. Surely the (secular) point is that he did nothing wrong, so what is required is some kind of official recognition that the law was wrong. I'm not sure we have a process for that.

Of course this would apply equally to other activities that were considered criminal in unenlightened times.

Could the argument be turned on its head and having criminalised certain acts, prosecute those who committed them before the legislation was passed. I believe this has been done exceptionally but not generally.

To pardon Turing and thousands of others looks to me like little more than an attempt to whitewash the actions of an earlier government.

Posted by Gee D (# 13815) on :

quote:
Originally posted by Sioni Sais:
Could the argument be turned on its head and having criminalised certain acts, prosecute those who committed them before the legislation was passed. I believe this has been done exceptionally but not generally.

Courts bend over backwards to ensure that legal changes operate prospectively and not retrospectively. Very clear words are required to alter this presumption. There is also an accepted code of conduct that there are no changes which make criminal actions which had been legal at the time of their commission.

[ 22. July 2013, 12:05: Message edited by: Gee D ]

Posted by beatmenace (# 16955) on :

The precedent being cited for this is the 2006 pardoning of troops executed for cowardice in world war I - many of whom would have been shell-shocked.

Does anyone know if this was to all troops shot for this or was it limited as specific cases?

I understand pardons are issued by discretion and are not necessarily correcting miscarrages of justice. This doesnt say that Mr Turing was innocent of the crimes under the law at the time, but due to his greater contributions to society this is being legally voided - its forgiveness of the guilty basically.

Posted by Barnabas62 (# 9110) on :

Checking out the location of this thread with DH Hosts.

Barnabas62
Purgatory Host

Posted by anteater (# 11435) on :

A public apology was given by Gordon Brown in a response to the campaign by John Cumming. I think it was on behalf of the UK Government.

I can't see any point in a pardon. What does it do?

Posted by lilBuddha (# 14333) on :

A pardon serves the purpose of demonstrating that the government are finally beginning to extricate their heads from their arse in regards to gay rights.
It is symbolic and does Turing no good. But it can do some good for those being messed about still.
Ideally, the conviction would be set aside and a footnote added regarding the lunacy of the charge in the first.
And yes, Turing is a special case. Though no one should have ever been convicted under such a ridiculous law, Turing reduced the suffering and significantly lowered the body count.

[ 22. July 2013, 14:46: Message edited by: lilBuddha ]

Posted by Anglican't (# 15292) on :

quote:
Originally posted by lilBuddha:
It is symbolic and does Turing no good. But it can do some good for those being messed about still.

Who, in your view, is still being 'messed about'?

quote:
And yes, Turing is a special case. Though no one should have ever been convicted under such a ridiculous law, Turing reduced the suffering and significantly lowered the body count.

How did Turing reduce suffering and lower the body count? I don't quite get this bit.

Posted by Albertus (# 13356) on :

Presumably by his contribution, through Enigma, to winning the war. It may be, of course, that he just shifted some of the suffering and the body count from our side to theirs, but we should still be grateful to him for that.
Why this means that he should have had special treatment under the criminal law, I don't know.

Posted by lilBuddha (# 14333) on :

If the offense had been jaywalking, would you complain?

Posted by ExclamationMark (# 14715) on :

quote:
Originally posted by Albertus:
Presumably by his contribution, through Enigma, to winning the war. It may be, of course, that he just shifted some of the suffering and the body count from our side to theirs, but we should still be grateful to him for that.
Why this means that he should have had special treatment under the criminal law, I don't know.

Exactly - if you adopt this form of argument (good deeds vs illegal ones ) in this case, then you have to extend it to murderers too, if you intend to act in accordance with justice.

Turing's punishment was his own choice but the nature of said punishment reflected the gravity offence he had committed under the (then) law. This was a relationship of unequal partners in the eyes of the law - whatever we may feel about it today.

IIRC he was convicted on his own admission of committing gross indecency with a man of 19, whilst he (Turing) was over 21. At the time 21 was the age at which you could vote but was also considered as an "age of consent." You couldn't for example borrow money unless you were 21 - so the gravity of his crime meant that he was considered to have corrupted a "minor" as well as participating in illegal acts per se (none of which he ever denied).

The whole thing reeks of grandstanding and jumping on a bandwagon. Can my ancestors who were sentenced to death (later commuted to transportation) in 1830 for stealing sheep (their defence was that they did it because they had no work and their families were starving) now get the pardon and hearing they deserve?

[Btw, Turing was one of a group of people who solved part of the Enigma code. His role can easily be overstated although he was a real genius. My old maths teacher, Shaun Wylie at HRSFC in Cambridge was "outed," in the late 1980's I think, as a co worker with Turing working in the same hut, on Enigma. As 18 y/o A level students we had no idea].

[ 22. July 2013, 15:28: Message edited by: ExclamationMark ]

Posted by leo (# 1458) on :

I agree with what others have said about the need to pardon everyone else for the same 'offence'.

I also agree what to do so would send out a very powerful message.

I would add that something better than a pardon would be to outlaw all these 'gay cure' 'therapies,' most of them led by evangelical Christians. Turing suffered hormone treatment that made him grow breasts and hindered his athletic prowess. Today's victims of therapy suffer guilt, bad marriages and, somethings, suicide.

I'd reccommend The Man Who Knew Too Much: Alan Turing and the Invention of the Computer by David Leavitt.

[ 22. July 2013, 15:28: Message edited by: leo ]

Posted by Crœsos (# 238) on :

quote:
Originally posted by leo:
I agree with what others have said about the need to pardon everyone else for the same 'offence'.

I also agree what to do so would send out a very powerful message.

Something similar to the Rosa Parks Act, under which people convicted by Alabama of violating Segregation laws can have their criminal records cleared?

Posted by Erroneous Monk (# 10858) on :

quote:
Originally posted by Crœsos:

quote:
Originally posted by leo:
I agree with what others have said about the need to pardon everyone else for the same 'offence'.

I also agree what to do so would send out a very powerful message.
Something similar to the Rosa Parks Act, under which people convicted by Alabama of violating Segregation laws can have their criminal records cleared?

Yes. Because the point is they *didn't do anything wrong* so shouldn't have been criminalised, and shouldn't need to be pardoned.

However, whether it is worth the cost of legislation if it relates entirely to people who are now dead is another matter. It is certainly cheaper to do something symbolic.

Or do you think we should consider legislating in general so that people convicted of something that later ceases to be criminal can have their records cleared? Is there nothing that we might think was appropriately criminal in a different age, but shouldn't be now?

Posted by Albertus (# 13356) on :

But we have that- see my first post on this thread. It doesn't apply posthumously, though, and (again for reasons I briefly stated upthread) I don't think it should.

Posted by lilBuddha (# 14333) on :

Yes, a posthumous pardon is symbolic. And?

quote:
Originally posted by ExclamationMark:
Exactly - if you adopt this form of argument (good deeds vs illegal ones ) in this case, then you have to extend it to murderers too, if you intend to act in accordance with justice.

That is ridiculous. So, if your daughter eats a biscuit without permission this is the same as if she sells your properties, empties your accounts and steals your car?
And, yes, your ancestors deserve a pardon.

Posted by Sarah G (# 11669) on :

I did the tour thing at Bletchley Park today, and the guide mentioned the pardon.

It felt right.

Posted by Barnabas62 (# 9110) on :

We're agreed on Host board. The thread is going to Dead Horses.

Barnabas62
Purgatory Host

Posted by LQ (# 11596) on :

quote:
Originally posted by Crœsos:

quote:
Originally posted by leo:
I agree with what others have said about the need to pardon everyone else for the same 'offence'.

I also agree what to do so would send out a very powerful message.
Something similar to the Rosa Parks Act, under which people convicted by Alabama of violating Segregation laws can have their criminal records cleared?

This might actually be quite salient. I can't find a handy link atm but I seem to recall seeing a couple of articles floating around about living Englishmen with criminal records still active from pre-Wolfenden.

Posted by Albertus (# 13356) on :

Oh FFS how many times do I have to say this: we have such a law already, for the living rather than the dead. See here .

Posted by Albertus (# 13356) on :

Sorry for tetchy tone of above- a bit distracted- thought better of it, went to delete the 'Oh FFS...', but missed the edit window.

Posted by ExclamationMark (# 14715) on :

quote:
Originally posted by Albertus:
Sorry for tetchy tone of above- a bit distracted- thought better of it, went to delete the 'Oh FFS...', but missed the edit window.

It's a dangerous precedent: the law was the law when the offence was committed. Have we gone back to offer the same terms for other crimes that aren't any more? How about unsafe convictions going back many years - lots of them very personal and unlikely cause celebres? Does it mean that I can get my £7.50 back from 1978 for being fined for having no lights on my bike when I actually had them and it was the PC's word against mine in court as there were no other witnesses?

Posted by Albertus (# 13356) on :

No, that's not the same thing. It's saying 'you were convicted - probably quite procedurally properly and, as the law then stood, fairly- of something that was a crime then; now it wouldn't be a crime and actually we don't think it ever should have been a crime, so it is not fair that you should have it on your record'.

Posted by Sergius-Melli (# 17462) on :

Just a quick, rather silly question (all drunk on the birth of a male into the line of succession)...

Should we reverse this whole process and prosecute people who committed no crimes in the past on the basis that now we think the actions they were engaged in are horrid crimes against basic humanity? (most diehards probably already hold such people as criminals so why not blot their book and make them proper criminals?)

On the actual point, an apology for a misguided attitude of our ancestors would suffice, but to pardon outright would be wrong, he was a criminal, and should remain a criminal...

Posted by Crœsos (# 238) on :

quote:
Originally posted by Albertus:
No, that's not the same thing. It's saying 'you were convicted - probably quite procedurally properly and, as the law then stood, fairly - of something that was a crime then; now it wouldn't be a crime and actually we don't think it ever should have been a crime, so it is not fair that you should have it on your record'.

And there are examples of people breaking laws that still stand and getting blanket pardons for various reasons. To take a Godwinesqe example, a few years ago Switzerland issued a blanket pardon to those convicted of helping refugees illegally cross the border from Nazi-controlled territories. Evading Swiss immigration law was a crime then and is still a crime now, but an exception was made for the extraordinary circumstances of the time.

quote:
Originally posted by Sergius-Melli:
Should we reverse this whole process and prosecute people who committed no crimes in the past on the basis that now we think the actions they were engaged in are horrid crimes against basic humanity? (most diehards probably already hold such people as criminals so why not blot their book and make them proper criminals?)

Most jurisdictions have some kind of protection against ex post facto laws. The only notable exceptions that come to mind are also fairly Godwinesque and involve the prosecution of high officials of governments engaged in actions that would be regarded as a criminal conspiracy if engaged in by sub-state actors.

[ 23. July 2013, 14:26: Message edited by: Crœsos ]

Posted by Crœsos (# 238) on :

And here we are:

quote:
Royal pardon for codebreaker Alan Turing

Computer pioneer and codebreaker Alan Turing has been given a posthumous royal pardon.

It overturns his 1952 conviction for homosexuality for which he was punished by being chemically castrated.

The conviction meant he lost his security clearance and had to stop the code-cracking work that proved vital to the Allies in World War II.

The pardon was granted under the Royal Prerogative of Mercy after a request by Justice Minister Chris Grayling.

Merry Christmas, Alan!

Posted by Starlight (# 12651) on :

It's 51 years too late, but it is a nice gesture.

I suppose that in the interests of mutual goodwill and forgiveness, that in 51 years time I should offer my forgiveness and pardon to the Christian church for its crimes against gay people... I'll think about it.

Posted by mousethief (# 953) on :

quote:
Originally posted by Anglican't:

quote:
Originally posted by Porridge:
In the case of this measure, why not pardon Oscar Wilde, too? He contributed much to English letters.
I'm a little uneasy about the selective nature of the measure. Gross indecency was a crime. I don't think you should be able to get off that crime because you happen to be good with computers or can write amusing plays, which these posthumous pardons sort of say, in a round about way. Everyone should be equal under the law.

If they issued a blanket pardon of all people who were convicted under that law, would you feel differently?

Posted by Anglican't (# 15292) on :

quote:
Originally posted by mousethief:

quote:
Originally posted by Anglican't:

quote:
Originally posted by Porridge:
In the case of this measure, why not pardon Oscar Wilde, too? He contributed much to English letters.
I'm a little uneasy about the selective nature of the measure. Gross indecency was a crime. I don't think you should be able to get off that crime because you happen to be good with computers or can write amusing plays, which these posthumous pardons sort of say, in a round about way. Everyone should be equal under the law.
If they issued a blanket pardon of all people who were convicted under that law, would you feel differently?

Yes, absolutely. I feel that you shouldn't be able to get off on criminal offences because of who you are or what you happened to have done in your non-criminal career. By pardoning only Turing this is, essentially, what's going on. (I appreciate that's rather crudely put, but I think it's accurate.) If society feels strongly that a certain offence ought not to have been put on the statute book, everyone who fell foul of the law ought to be pardoned, not just some of them.

That said, I'm a little wary of posthumous pardons.

Posted by Crœsos (# 238) on :

quote:
Originally posted by Anglican't:
Yes, absolutely. I feel that you shouldn't be able to get off on criminal offences because of who you are or what you happened to have done in your non-criminal career. By pardoning only Turing this is, essentially, what's going on.

So you feel that special privilege accorded because of achievement goes counter to the basis of British government, which is based on special privilege accorded because of birthright?

quote:
Originally posted by Anglican't:
That said, I'm a little wary of posthumous pardons.

Is it because of the recidivism rate? [Big Grin]

Posted by Anglican't (# 15292) on :

quote:
Originally posted by Crœsos:

quote:
Originally posted by Anglican't:
Yes, absolutely. I feel that you shouldn't be able to get off on criminal offences because of who you are or what you happened to have done in your non-criminal career. By pardoning only Turing this is, essentially, what's going on.
So you feel that special privilege accorded because of achievement goes counter to the basis of British government, which is based on special privilege accorded because of birthright?

I'm saying that special privilege because of achievement goes counter to the basis of criminal law as I understand it.

Posted by balaam (# 4543) on :

quote:
Originally posted by mousethief:

quote:
Originally posted by Anglican't:

quote:
Originally posted by Porridge:
In the case of this measure, why not pardon Oscar Wilde, too? He contributed much to English letters.
I'm a little uneasy about the selective nature of the measure. Gross indecency was a crime. I don't think you should be able to get off that crime because you happen to be good with computers or can write amusing plays, which these posthumous pardons sort of say, in a round about way. Everyone should be equal under the law.
If they issued a blanket pardon of all people who were convicted under that law, would you feel differently?

That should be the next step.

Posted by leo (# 1458) on :

Yesterday's Radio 4 PM programme had an interview with an 90 year old man whose whole life has been blighted because he was considered not to be 'of decent character'. All because he and a teenage friend, both aged 19 at the time, has done a bit of 'exploring'. he couldn't even get a job as a butler.

Not only a pardon but some sort of financial compensation would seem right.

Posted by lilBuddha (# 14333) on :

quote:
Originally posted by leo:

Not only a pardon but some sort of financial compensation would seem right.

Um, yeah, that's going to happen.

Posted by Gee D (# 13815) on :

quote:
Originally posted by leo:
Not only a pardon but some sort of financial compensation would seem right.

Who should pay the compensation? And given that what was done was at that time criminal (it should not have been, but it was) the next question is why? And finally, where do you draw the line?

Posted by Starlight (# 12651) on :

LilBuddha,
Financial reparations for past wrongs can and do happen. In New Zealand, for example, the government has given a massive amount of money to the Maori people to compensate them from land that was unjustly taken from them in colonial times. I believe many other countries have also gifted land and/or money to their native peoples to compensate for past wrongdoings. Just because you can point to a particularly wrong that has not been addressed or compensated, it doesn't mean this never happens.

Gee D,
Presumably the government(s) would pay such compensation as they are the ones who normally do in such cases. The claim to compensation would rest, I imagine, on the idea that the government systematically violated the human rights of the people concerned (eg as they did against various native peoples). The laws passed by, and enforced by, the government at that time were a violation of human rights, and therein lies the rationale for financial compensation.

Posted by lilBuddha (# 14333) on :

quote:
Originally posted by Starlight:
LilBuddha,
Financial reparations for past wrongs can and do happen. In New Zealand, for example, the government has given a massive amount of money to the Maori people to compensate them from land that was unjustly taken from them in colonial times. I believe many other countries have also gifted land and/or money to their native peoples to compensate for past wrongdoings. Just because you can point to a particularly wrong that has not been addressed or compensated, it doesn't mean this never happens.

The Maori reparations were based upon Treaty interpretation. Both slavery and the criminalisation of homosexuality were legal and therefore different.

Posted by ExclamationMark (# 14715) on :

Good. In that case, I'm waiting for the Royal Family to restore the land they've pinched over the last 1000 years.

When I see that then hey, I'm a believer!

Posted by Boogie (# 13538) on :

quote:
Originally posted by ExclamationMark:
Good. In that case, I'm waiting for the Royal Family to restore the land they've pinched over the last 1000 years.

I know this is a tangent - but I'm glad the land has been kept out of public ownership. The whole of the south would be a built up sprawl by now - awful!

Posted by Gee D (# 13815) on :

Starlight, I don't see how that gets you anywhere. In Leo's example, there seems to have been an initial criminal prosecution, but any later discrimination was by private individuals. And the discrimination was on the basis of a valid conviction. Neither is the basis for State compensation AFAICS.

To go back to the OP, the pardon itself is wrong. It makes an unjustified distinction of a prosecution of individuals on our present-day assessment of their worth to our community in other fields. Either prosecution for these offences was never justified for anyone (which reflects present day opinion) or it was justified for all.

And the whole idea smacks of the silliness of the apology the bishops made to Darwin's descendants. It is an attempt to salve our present consciences.

Posted by balaam (# 4543) on :

quote:
Originally posted by Gee D:
To go back to the OP, the pardon itself is wrong. It makes an unjustified distinction of a prosecution of individuals on our present-day assessment of their worth to our community in other fields. Either prosecution for these offences was never justified for anyone (which reflects present day opinion) or it was justified for all.

Which is why to pardon Turing alone is wrong. He was prosecuted for something which was illegal at the time. Now it is no longer an illegal activity if you are issuing pardons it has to be all or nothing. Where we differ is that I am in the 'all' camp.

ETA "all camp", that came out wrong, considering the subject matter. (Came out in the previous sentence is deliberate.)

[ 26. December 2013, 09:21: Message edited by: balaam ]

Posted by Gee D (# 13815) on :

I don't think we differ at all Balaam - I would pardon all, but there cannot now be compensation.

Posted by hatless (# 3365) on :

It's not really Turing whose reputation is being rehabilitated, it's the state's. Pardon seems the wrong word, to me. It's an apology. The state was in the wrong.

It's an example of a wider phenomenon, which is the state following public opinion. Honours are increasingly given to those whose achievements are obvious. (I'm talking about that small minority of honours that are given to the general public rather than to the rich and powerful.) Bradley Wiggins gets a knighthood, because the honours system needs his celebrity. Such honours don't confer anything. An honours system could be a powerful method for affirming under-appreciated qualities and people.

A pardon for Turing, and for him alone, looks entirely like the state yielding to public pressure. But perhaps that's a good thing.

Posted by Starlight (# 12651) on :

quote:
Originally posted by lilBuddha:
Both slavery and the criminalisation of homosexuality were legal and therefore different.

Well in the US the laws about those two things were or would be considered unconstitutional. eg the Supreme Court's Lawrence vs Texas ruling said that the Texas sodomy laws were not constitutional, and thus that the criminalisation of homosexuality was not legal. An implication of this is that those laws had never been legal from the time of the passing of the relevant amendments to the US constitution, and thus anyone who suffered punishment from those laws suffered it unconstitutionally and illegally. In countries which don't have a constitution by which a law can be judged illegal, I guess it's a bit harder to say that the law wasn't "legal", so I would settle for saying it is obviously a human rights violation.

Gee D,
The state obviously harmed various individuals by violating their human rights. They suffered both the penalty of their convictions, and various other financial and emotional hardships resulting from their conviction. It would seem to me to be entirely just, fair and valid for reparations to be made.

But I do agree with you when you say: "Either prosecution for these offences was never justified for anyone (which reflects present day opinion) or it was justified for all."

Posted by leo (# 1458) on :

quote:
Originally posted by lilBuddha:

quote:
Originally posted by leo:

Not only a pardon but some sort of financial compensation would seem right.
Um, yeah, that's going to happen.

But it should My city still benefits from the proceeds of slavery all these years later - and shouldn't.

Posted by leo (# 1458) on :

quote:
Originally posted by Gee D:
Starlight, I don't see how that gets you anywhere. In Leo's example, there seems to have been an initial criminal prosecution, but any later discrimination was by private individuals.

But those private individuals had their views shaped by the law that condemned Turing - so the law is at fault - and the state which promulgated the law.

Hence those who argue for a change in the law about the age of consent talk about 'sending out signals.'

Also, if the views of private individuals have nothing to do with the state, how have prejudiced sex therapists and guest house owners been successfully prosecuted for their homophobia despite their views and actions having been those of 'private individuals.

The guy I mentioned had been refused employment by 'private individuals'. Yet if a company discriminates against someone for their colour of their skin, or because they are female and of childbearing age, at interview, the state can prosecute them.

Posted by Gee D (# 13815) on :

And there can be proceedings here on the basis of sexual orientation actual or perceived. But only since the anti-discrimination legislation came into effect.

Upthread there was reference to possible retrospective effects of legislation. The general rule is that legislation is presumed not to have any retrospectively. This may be overcome by express words. From that, legislation creating or extending liabilities, whether civil or criminal, is never made retrospective. Legislation creating or extending benefits may be. So about a dozen or so years ago there was legislation in NSW lowering from 18 to 16 the age at which a male could consent to homosexual activity. That legislation was made retrospective, from memory to the date upon which criminal sanctions for consensual homosexual activity were abolished for those over 18, perhaps even earlier. There would never be legislation increasing the age from 19 to 21 and making that retrospective. The same principles apply to civil liabilities for damages and so forth.

The reason for this is obvious. I may drive along a highway at 200 kph quite legally. It is wrong that a new limit of 100 kph be introduced and said to have been the case the week before. Equally, if I arrange my affairs in a certain manner, while taxation laws may change to make that arrangement liable for double tax in the future, they should not impose that liability to past. Parliament may decide that it is inappropriate that benefit be paid to those studying journalism, but that larger benefits be paid to students of nursing. While it may be thought appropriate to make the increased benefits retrospectively, it would be wrong to penalise journalism students for the choice made perhaps 2 years beforehand.

What Starlight and Leo are proposing offends this principle. It would create a liability to pay compensation where none existed at the time of the acts complained of. None of this is said in an attempt to justify those acts, but at the time they were committed there was neither a civil or criminal liability for them.

[There is a further basis for something approaching retrospective liabilities. Where a court has interpreted legislation in a particular and unexpected manner, then fresh legislation may be introduced to overcome that decision. The legislation may declare the new position to have always been that to be applied in all cases save those actually decided. Rare.]

Posted by Starlight (# 12651) on :

Gee D,
I am not suggesting that compensation be paid from private individuals who acted in a discriminatory way that was 'legal' at the time they discriminated. (Leo might be suggesting this, not sure) As you say, it would be quite unusual and seem a bit unreasonable to essentially attempt to punish individuals for doing something that was legal at the time they did it.

What I am suggesting is simply that the government is guilty of causing serious harm to gay people through its laws and the effect of those laws, which failed to recognise the human rights of gay people. Governments, unlike private individuals can quite reasonably be made to pay for things they did wrong that were "legal" at the time they did them. It isn't unusual for governments to act wrongly in a way that harms people, for those wrongs to be recognised later, and compensation subsequently given years through either judicial proceedings or a change of political heart.

Posted by Gee D (# 13815) on :

Yes, I understood that Starlight, but your proposal seeks to impose a retrospective liability upon the government, and one in respect of actions/failure to act many, many years ago. I think the same arguments apply as well as problems arising from a failure to bring action within the limitation period. I don't think money is the answer.

Posted by Anglican't (# 15292) on :

quote:
Originally posted by Starlight:
I am not suggesting that compensation be paid from private individuals who acted in a discriminatory way that was 'legal' at the time they discriminated...I am suggesting is simply that the government is guilty of causing serious harm to gay people through its laws and the effect of those laws, which failed to recognise the human rights of gay people. Governments, unlike private individuals can quite reasonably be made to pay for things they did wrong that were "legal" at the time they did them.

A minor (but important) point: governments by and large get their money from private individuals. So in this case compensation would be paid (indirectly) by quite innocent private individuals.

Posted by stonespring (# 15530) on :

In the US there has long been an argument over whether or not there should be payment of reparations to the descendants of slaves for slavery. Granted, we have a written constitution and when it is amended (as when slavery was abolished by the 13th amendment) that is different than when a new law is passed in the UK.

Since several generations separate us from the time of slavery and many people (myself included) have distant slave ancestors (although mine are not from the US) but are white so far as the way society sees us and the privileges we enjoy due to our appearance, I don't think the slavery reparations issue is comparable to reparations to people still alive today who were convicted under laws criminalizing homosexual acts.

However, suppose that slavery has just been abolished in the US and former slaves are still alive today. Should they be paid reparations? Remember that the former slaves have worked their whole lives without payment and have no property of their own - and that since they had little to no rights before they were often treated brutally not only by their owners but also by the government in its interaction with them. Had I been alive at this time, I would have seen a very strong case for reparations.

Posted by Gee D (# 13815) on :

To start with the reparations point, how does money compensate for a life live without civil rights? I know that an element of damages in personal injury cases and the like (now much curtailed here by statute) is for pain and suffering, and loss of enjoyment of life. Most damages in defamation cases are for the insult to the plaintiff's character rather than to compensate for actual losses. To my mind, these are really not compensatory damages at all. You are in effect giving damages as a means of punishment of the wrongdoer. And those are not compensatory.

This country was established as a large prison farm. Convict labour was used to build houses and public buildings, make roads, farm properties and carry out a wide range of public works. Convicts were not paid, but they were fed and housed, both to a very poor standard. Very few, if any. would have passed the property tests for franchise, and of course the franchise was not extended to women until the late nineteenth century. Many of the crimes punished by deportation are no longer offences, or if so, carrying a prison sentence. Should the descendants of those convicts be paid compensation?

And following on from that, what compensation should be paid to women for the late introduction of the franchise to them? How would that be calculated?

Posted by Starlight (# 12651) on :

quote:
Originally posted by stonespring:
I don't think the slavery reparations issue is comparable to reparations to people still alive today who were convicted under laws criminalizing homosexual acts.

Agreed. I am always skeptical of reparations when the people harmed are not actually around to receive the money. Whereas anyone who is alive who suffered an obvious wrong is a prime candidate for redress.

quote:
Originally posted by Anglican't:
A minor (but important) point: governments by and large get their money from private individuals. So in this case compensation would be paid (indirectly) by quite innocent private individuals.

Governments and companies are separate legal entities to the people of which they are composed (and whatever sources of revenue they have). People sue governments and companies all the time and the fact that they are made up of innocent private individuals is never considered relevant.

quote:
Originally posted by Gee D:
your proposal seeks to impose a retrospective liability upon the government... I think the same arguments apply [as to why individuals shouldn't have retrospective liabilities]

Western legal systems tend to go to great lengths to avoid imposing any retrospective harm on individuals for the reasons you've outlined. It's widely recognized that individuals ought to be able to follow the law at a given time and not suffer a retrospective punishment just because the law later changes - the idea being that this would be unfair because how could they follow a law they didn't know existed? The role of the individual within a society is to follow the law, and as long as they do this correctly, they ought not to be punished.

The role of a government however, is to both follow the law and make the law. Governments have many obligations both ethical and legal when making laws, to ensure those laws conform with international principles and are fair and just, that they respect human rights, and are for the benefit of their citizens. It is pretty much universally accepted that governments can, and sometimes do, fail at this task of law-making, in the sense of making laws that are unethical or human-rights violating and which harm their citizens. eg slavery laws, killing minorities, seizing land from native peoples etc. Later politicians subsequently recognize that those laws are wrong and repeal them. It is quite common that compensation for the recognized and acknowledged wrongs then is sought for anyone living who has been obviously harmed. Typically such a person will seek it through a civil lawsuit against the government, though when dealing with a large class of people compensation may often come through the political branch of government.

Your arguments about individual liability are totally spot on with regard to individuals following the law, but not relevant in the least to government compensation for harm caused by laws made.

[ 27. December 2013, 20:43: Message edited by: Starlight ]

Posted by Starlight (# 12651) on :

quote:
Originally posted by Gee D:
To start with the reparations point, how does money compensate for a life live without civil rights?

The man referred to earlier in the thread who could not get any kind of reasonable job for most of his life due to a criminal conviction for homosexuality has suffered obvious financial harm as a result of his conviction, which could quite obviously be compensated in kind.

The question of how much money appropriately compensates for civil rights loses is rather arbitrary and answers likely vary widely by country. In the US, individuals frequently seem to obtain millions in court cases for "emotional damages" or "statutory damages" for extremely tiny actual harms. In NZ, our government ACC system will automatically give an individual money in relation to physical damage suffered - eg if you lose a limb you get given a certain amount of money as a lump sum payment in compensation (so somebody has crunched some numbers and stuck a value on the financial worth of each body part).

Courts seem to be in the business of making up arbitrary numbers with regard to damages, compensations, and punishments. I am sure they would have no trouble making up arbitrary numbers about how much compensation a human rights violation was worth.

quote:
Should the descendants of those convicts be paid compensation?

And following on from that, what compensation should be paid to women for the late introduction of the franchise to them? How would that be calculated?

For a number of reasons I don't believe descendants should be compensated for large scale harms that did not occur in their lifetimes. They have not suffered any losses, so I see no reason for compensation. Sure, had the world gone differently in the past, they might have been born into a richer family, but anyone can say the same thing.

Posted by Gee D (# 13815) on :

The NZ system is very sensible, and I have never understood why it was not adopted here instead of the restrictions on damages imposed by the NSW Civil Liability Act and its equivalent elsewhere. As I said, I have never understood why it is thought that an award of money is proper compensation for pain and suffering. Loss of earnings both past and forecast, yes; the same for medical and other expenses such as housekeeping for a severely injured person. Money for general non-economic loss would be better spent on the introduction of a no-fault scheme.

AIUI, the vast damages awards given by US juries are very rarely the judgements entered. The jury returns its verdict, the defendant's lawyers make a fairly routine applications and the judge enters a verdict for a small percentage. And not all the reports given publicity accurate - the case of the lap burnt by spilling coffee is only one of a lot of urban myths.

I can understand your argument but don't agree. For a start, there's the question of who actually pays for a verdict against a government. It's most unlikely that there is any insurance for it, and so any money would come out of the public purse, which really means my pocket and yours.

Next, the behaviour really should be judged against the standards of the time. There are claims being considered here in respect of the adoption out at birth of illegitimate children. By present day standards, the advice strongly given (putting it euphemistically) 30 or 40 years ago is wrong. It was not then. The same applies to a whole range of decisions about social matters in the past.

To take another example. Who now would support the decision to bomb Dresden or Vienna so close to the end of WW II? It was controversial enough at the time. Should the UK and US governments pay compensation to any survivors injured at the time?

Posted by lilBuddha (# 14333) on :

quote:
Originally posted by Gee D:
For a start, there's the question of who actually pays for a verdict against a government. It's most unlikely that there is any insurance for it, and so any money would come out of the public purse, which really means my pocket and yours.

Britain, Australia, New Zealand, America, Canada, Portugal, etc. were largely built/enhanced at the expense of various other (mostly brown) people. The citizens of those countries enjoy benefits to this day from that expense. The pale citizens, most. The darker, must endure fewer opportunities still. And the citizens of foreign countries who still deal with the turmoil created by the aforementioned countries?
Reparation would be right, would be ethical, would be just. But would not be practical. Not because it would come from citizen pockets, but because there is not enough money.

Posted by Anglican't (# 15292) on :

quote:
Originally posted by lilBuddha:
Britain, Australia, New Zealand, America, Canada, Portugal, etc. were largely built/enhanced at the expense of various other (mostly brown) people. The citizens of those countries enjoy benefits to this day from that expense. The pale citizens, most. The darker, must endure fewer opportunities still. And the citizens of foreign countries who still deal with the turmoil created by the aforementioned countries?
Reparation would be right, would be ethical, would be just. But would not be practical. Not because it would come from citizen pockets, but because there is not enough money.

After his 'Rumble in the Jungle', Muhammed Ali was asked what he thought about Africa and replied "Thank God my granddaddy got on that boat."

If we accept for a moment that some kind of financial reparation is owed to the current descendants of slaves, ought we also to consider some kind of set off to take into consideration the privileges that accrue to citizenship of a western nation and which are not enjoyed by citizens in African nations?

Posted by rolyn (# 16840) on :

Thankyou for that breath of fresh air AT

We seem to be living in a culture now whereby we think if a lorry load of dosh is delivered to our doorstep then it will somehow atone for all the sins of the past .

It's utterly freakin ridiculous . Reminds me of that line from 10cc's Wall Street shuffle -- " Did your money make you better ?"

Posted by lilBuddha (# 14333) on :

Right. And who fucked up the continent Mr. Ali did not wish to have lived in?
We've no idea what many regions would be today left to their own, but we do know some of the direct results European efforts.
Nice try, no biscuit.

[ 28. December 2013, 12:03: Message edited by: lilBuddha ]

Posted by Crœsos (# 238) on :

quote:
Originally posted by Anglican't:
After his 'Rumble in the Jungle', Muhammed Ali was asked what he thought about Africa and replied "Thank God my granddaddy got on that boat."

If we accept for a moment that some kind of financial reparation is owed to the current descendants of slaves, ought we also to consider some kind of set off to take into consideration the privileges that accrue to citizenship of a western nation and which are not enjoyed by citizens in African nations?

Muhammed Ali made a career out of saying outrageous things. Recycling talking points popular with Segregationists of the era (I think it was either Orville Faubus or George Wallace who famously said something similar) would fall exactly in that line.

Posted by Anglican't (# 15292) on :

quote:
Originally posted by Crœsos:
Muhammed Ali made a career out of saying outrageous things. Recycling talking points popular with Segregationists of the era (I think it was either Orville Faubus or George Wallace who famously said something similar) would fall exactly in that line.

I'm sorry I don't quite follow: you highlighted two lines from my post. Does your second sentence pertain to my second sentence or the first or both?

I agree with the general outlandishness of many of Ali's comments. This particular comment happened to spring to mind when I was reading this thread.

Posted by lilBuddha (# 14333) on :

[Confused]

You used a quote which is comparable to thanking an arsonist for being a kidnapper as well. And you acknowledge the dubious nature of the quote.
So the post was subtle irony?

[ 28. December 2013, 16:39: Message edited by: lilBuddha ]

Posted by Crœsos (# 238) on :

quote:
Originally posted by Anglican't:

quote:
Originally posted by Crœsos:
Muhammed Ali made a career out of saying outrageous things. Recycling talking points popular with Segregationists of the era (I think it was either Orville Faubus or George Wallace who famously said something similar) would fall exactly in that line.
I'm sorry I don't quite follow: you highlighted two lines from my post. Does your second sentence pertain to my second sentence or the first or both?

Both. The typical Segregationist talking point was that yes, black American were treated much worse than white Americans but still had it better than over in Ooga-Booga Land (or whatever similarly dismissive term they used for the place where black people are supposed belong). In essence the argument is that western nations get to "grade on a curve" regarding their treatment of non-white people. Recycling this bit of racist apologia is exactly the kind of transgressive trash-talking Ali did so well.

Posted by rolyn (# 16840) on :

Anyone who thinks reparations is a panacea to all ills needs to study what happened in post WW1 Germany .

I'll grant you that such a travesty is thankfully unlikely here if lawsuits start handing out money to the descendants of slaves . One thing though is for certain . Individual Westerners receiving a windfall cos it happens their ancestors were slaves will do zilch to ease the complex and long term hardships of down-trodden present day Africans .

Posted by lilBuddha (# 14333) on :

No one said it would. Apologies for past beatings whilst continuing to administer new beatings is seldom convincing or helpful.

Posted by Gee D (# 13815) on :

What principles would you apply to calculate the sum to pay to the descendants of slaves?

Posted by Anglican't (# 15292) on :

quote:
Originally posted by Crœsos:

quote:
Originally posted by Anglican't:

quote:
Originally posted by Crœsos:
Muhammed Ali made a career out of saying outrageous things. Recycling talking points popular with Segregationists of the era (I think it was either Orville Faubus or George Wallace who famously said something similar) would fall exactly in that line.
I'm sorry I don't quite follow: you highlighted two lines from my post. Does your second sentence pertain to my second sentence or the first or both?
Both. The typical Segregationist talking point was that yes, black American were treated much worse than white Americans but still had it better than over in Ooga-Booga Land (or whatever similarly dismissive term they used for the place where black people are supposed belong). In essence the argument is that western nations get to "grade on a curve" regarding their treatment of non-white people. Recycling this bit of racist apologia is exactly the kind of transgressive trash-talking Ali did so well.

I don't know who may or may not have articulated this kind of argument in the past, but I think regardless of that there's a valid point here: in order to determine any level of compensation, one has to calculate loss. I suspect that for many supposed modern-day 'victims of slavery' that would be impossible.

Posted by lilBuddha (# 14333) on :

quote:
Originally posted by Gee D:
What principles would you apply to calculate the sum to pay to the descendants of slaves?

There is not enough money in the world, it is not going to happen so why bother.
Besides this, It would not solve the problems. That is a much more complicated thing and would require levels of cooperation we will never see outside of science fiction.

Posted by Gee D (# 13815) on :

Your post yesterday at 18.41 said that reparation would be ethical and just, but that the sum would be too great to be paid. I'm asking the principles to be used to determine what that vast sum would be. I suspect that they would include a payment of money for a non-pecuniary loss - the equivalent being damages for pain and suffering.

Posted by lilBuddha (# 14333) on :

quote:
Originally posted by Gee D:
Your post yesterday at 18.41 said that reparation would be ethical and just, but that the sum would be too great to be paid. I'm asking the principles to be used to determine what that vast sum would be. I suspect that they would include a payment of money for a non-pecuniary loss - the equivalent being damages for pain and suffering.

How can one calculate the effect of generations of repression? Of people growing up with less hope? Less opportunity? How can one calculate the ecological and cultural devastation?

Posted by Gee D (# 13815) on :

I don't think that you can calculate it in any monetary terms - just as I don't think you can calculate pain and suffering, and loss of enjoyment of life in monetary terms. But some posts have raised the suggestion that compensation be paid.

Posted by lilBuddha (# 14333) on :

Why is calculating pain and suffering any different that calculating the value of human life? Or determining the value of injury? We do this all the time.

Posted by Gee D (# 13815) on :

I know that it is done all the time as a part of awards of damages. I am questioning 2 matters. The first is just how an award of money can compensate for something not measurable in money terms. We can calculate such matters as the cost of ongoing medical treatment on an annual basis and from that use actuarial tables to work out the sum needed to produce that annual amount by using a combination if income and capital. At the end of the estimated life, there should in theory be nothing left. But how can money compensate for the aching shoulder?

The next question is deeper: how is an award of money now relevant to the suffering of great-great-grandparents who were slaves? How has that suffering affected my position? Can someone whose ancestors survived the Holocaust but in a concentration camp, validly claim money from the German Govt?

None of the your posts, and the posts of others, so far have sought to examine these questions, which is why I have asked for a statement of the principles to be used.

Posted by lilBuddha (# 14333) on :

quote:
Originally posted by Gee D:
I know that it is done all the time as a part of awards of damages. I am questioning 2 matters. The first is just how an award of money can compensate for something not measurable in money terms. We can calculate such matters as the cost of ongoing medical treatment on an annual basis and from that use actuarial tables to work out the sum needed to produce that annual amount by using a combination if income and capital. At the end of the estimated life, there should in theory be nothing left. But how can money compensate for the aching shoulder?

Pain and suffering are calculated for, are monetised.

quote:
Originally posted by Gee D:

The next question is deeper: how is an award of money now relevant to the suffering of great-great-grandparents who were slaves? How has that suffering affected my position?

Right now, this very time, the west benefits from the havoc wreaked on other peoples and countries. And those peoples and countries suffer right now.

quote:
Originally posted by Gee D:

Can someone whose ancestors survived the Holocaust but in a concentration camp, validly claim money from the German Govt?

Um, Germany is still paying. People not even alive at the time are benefiting from this. One group of survivors got a country. One that is not limited to the survivors only.

quote:
Originally posted by Gee D:

None of the your posts, and the posts of others, so far have sought to examine these questions, which is why I have asked for a statement of the principles to be used.

First off, I am not stating reparations are necessarily the proper solution, so I am not doing the maths.
Like it or not, monetary value is absolutely the standard of compensation for wrongs, monetary and non-monetary.
Not that I think it will fix the problems. I do think we could make things better in the west, for those living in the west, who suffer now for the wrongs of the past.
Fixing the countries that have been damaged is a much more difficult proposition.
And I will repeat it again for clarity: I am speaking about the harm to people living
now, not for harm done to ancestors.

Posted by Gee D (# 13815) on :

I would date the commitment to establish Israel back to the Balfour Declaration, rather than as a "compensation" for the wrong of the Holocaust.
Otherwise, I don't think you have grappled with the matters I raised. Especially, you don't say how payment of money for pain and suffering is a compensation for the pain.

Posted by lilBuddha (# 14333) on :

quote:
Originally posted by Gee D:
I would date the commitment to establish Israel back to the Balfour Declaration, rather than as a "compensation" for the wrong of the Holocaust.

Certainly the idea was raised. One could argue the progress of said idea though.

quote:
Originally posted by Gee D:

Otherwise, I don't think you have grappled with the matters I raised. Especially, you don't say how payment of money for pain and suffering is a compensation for the pain.

It is not true compensation. I do not say it was.
But this is not to say there is no responsibility.
Say I steal your car and, as a result, you cannot work. You lose your job, cannot pay your loans for your car or home and become homeless. You die and your children, having grown on the streets, are ill equipped to compete in today's world. Whilst I have sold your car, invested the money and now have a lovely home, a fancy motor and terrific job. Do I owe your children?

Posted by Gee D (# 13815) on :

In a word, and dealing only with Aust, no. See for example :

Tame v New South Wales [2002] HCA 35

The Wagon Mound [1961] UKPC 1

The damage is far too remote. The law where you are may well be different.

Posted by rolyn (# 16840) on :

quote:
Originally posted by lilBuddha:
Apologies for past beatings whilst continuing to administer new beatings is seldom convincing or helpful.

The Church has apologised for it's support of the slave trade . I don't think the West pouring billions upon billions of pounds into Africa can quite be described as "new beatings". What's happened has happened and as you say no amount of money can , sadly, put past wrongs to right .

The point I was making about Germany was that it failed to keep up with the reparations imposed on it after the First War . In fact it was the Allied attempt at financial humiliation that helped give rise to a fascist Germany, and hence the Second War .

I am unaware that Germany has ever been required to compensation for *all* the heartache, hardship, bitterness and destruction wrought by WW2 .
As with Western interference in Africa the cost , as you say would, be utterly incalculable.

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