March 10, 2021

It’s a knackered old truism that sexual harassment cases are about power rather than sex, but it fairly applies to the current circus around allegations against Alex Salmond. The former first minister was acquitted on 13 charges of rape, sexual assault, indecent assault and attempt to rape following a trial in 2020; the handling of that case is currently the subject of an inquiry at Holyrood. The question is, whose power over whom?

Is this about a senior male politician’s power over the women beneath him in party and government? Did his heir as FM and SNP leader, Nicola Sturgeon, act with honest feminist intentions throughout her involvement in the case? Or is this a situation whereby a former protegee saw her chance to neutralise her predecessor and gracelessly jumped on it, making a hash of justice in the process?

A key part of Salmond’s defence was the invocation of a plot intended to bring him down. His QC was overheard on a train saying that he intended to “put a smell” on the accusers, and whether or not that was the strategy that secured Salmond’s acquittal, it was a strategy that worked: “he is not guilty” does not equate to “she lied”, but Salmond’s fans on social media have no compunction about drawing that conclusion and stating it in the most misogynistic terms.

On the other hand, if Salmond’s defenders are just a clique falling in line behind old privilege, what to make of the involvement of someone such as Joanna Cherry, who has been an outspoken defender of feminism on the gender identity issue? Here, though, she takes the part of the accused man over the women who accused him.

Those accusations may have failed to meet the burden of proof for criminal conviction, but they added up to a coherent and consistent picture of at the very least inappropriate behaviour. As Dani Garavelli, who covered the whole trial, wrote: “much of the evidence was He said, She said. Or rather He said, She said, She said, She said.” And if Salmond thinks he was failed by the system, his accusers have been too, and badly. One of the worst allegations to come out of the Holyrood inquiry is that one accuser was identified to Salmond’s allies.

There’s something deeply unsatisfying about a set of circumstances that refuses to be reduced to easily identifiable heroes and villains. How you read this tangle depends to a large degree on where you’re aligned on the SNP’s internal split between Salmond and Sturgeon. So if you don’t have an alignment, the whole matter appears hopelessly opaque — and since most people aren’t SNP members at all, the temptation to dismiss this as an impenetrable party dispute of no wider significance is great.

Great, and wrong. This was not Scotland’s #MeToo moment, but maybe it was a lesson in the limits of justice. The Salmond case left a scratchy, inconclusive feeling. He was not guilty, but nor was his reputation wholly vindicated. For his alleged victims, there was no restitution, despite the uncontested fact that Salmond had crossed several lines, albeit not lawbreaking ones.

The repercussions reach far wider than the courtroom. For women who recognised their own experience in the testimony — the boss who keeps you for a drink, who strokes your face, who slithers his hands beneath your clothes — the trial served as a warning against ever seeking redress. Garavelli noted that Salmond’s QC’s closing submission “appeared to play to male fears about past behaviour. How did things that people thought nothing of later find themselves on a charge sheet, he wondered. ‘It’s scary, scary stuff.’ A couple of jurors nodded along.”

But even without this, most victims of sexual assault already know that the courtroom will be a hostile environment. In the service of getting to the truth, their reputations will be attacked, their motivations impugned, their accounts of their own lives recast as fiction by the defence. Their private messages picked over, humiliatingly, for any one thing that could be used to undermine them with a jury.

The law is an especially cruel instrument for assessing sexual crime, because a rape conviction requires the jury to agree not only that a man penetrated (or attempted to penetrate her) against her will, but that he could not have “reasonably believed” that she consented.

Internal institutional processes — HR departments, political parties’ own investigations — don’t have to meet the high bar of criminal proceedings, but they still have to be robust and independent to be effective. Instead, formal responses to #MeToo have been piecemeal and erratic. That’s most obviously been bad for those men who’ve had the misfortune to take the brunt of wild justice in the pushback against sexual harassment.

But while it’s impossible not to feel pangs for men such as Mark Tunison, whose career was torpedoed by his inclusion on the “Shitty Media Men” list, due process isn’t something that’s only owed to alleged perpetrators. Women like Salmond’s accusers who seek justice for past wrongs and security against future ones can achieve neither without a system that can deliver solid judgements and stand up to scrutiny.

Long before the Salmond case could come to court, the kinds of grey-area-blurring things that he accepted he had done should have been dealt with by the SNP and Holyrood. A concerning admission from Sturgeon’s evidence to the Salmond inquiry is that as long ago as 2017, she had a “lingering fear” that allegations about his conduct would be made public.

And so, while I can see the irony in (as Sonia Sodha put it in the Observer) “a woman being held to account for a man’s transgressions”, this is about power not sex. If the processes of the party Sturgeon ran and the government she led weren’t fit for purpose, the buck would have to stop with her.

Salmond’s QC’s closing argument landed with the jurors because he had a half-point: #MeToo has forced a reassessment of actions once accepted. That does not mean that women are retconning cheerful-at-the-time sexual experiences as acts of violence. It means that they are, in many cases, refusing to go on telling the lie that something was OK when it was always wrong. It means that the encounter which hurt and degraded you is no longer something you bury in shame and self-reproach. Instead, you can look at it and say: I never wanted this, and this was never fair.

That’s a cultural shift, and a significant one for individual women. But it’s only half a reformation. The other half is the hard bit: ensuring the legal, judicial and tribunal processes can truly handle allegations of sexual misconduct. And there are a lot of these to get through: almost all young women, and 80% of all women, say they’ve experienced sexual harassment. The Salmond inquiry will tend, inevitably, to become about the question of whether or not he was a victim of machinations. But whatever that conclusion, the women who accused him are already victims of a broken system.