Rajpal's Column

12th April 1998

Bringing litigation down to the level of socio-psycobabble

By Rajpal Abeynayake

Arthur C. Clarke

This may be an apoc ryphal story, but it is based on the truth. An American couple went away on holiday, and a thief took the opportunity to break in to the house through the roof. But, one of the supports that held the roof gave way, and the man came tumbling down and broke a leg. Though the burglar was charged for break- in, he was able to go to court and sue the house owner for negligence in a civil suit he filed. The man won the case, the rationale being that though the burglar may have been a trespasser, the homeowner had a duty of care to make sure that the man was not hurt in his premises.

The lawyers are the biggest winners in the American legal system, which is a minefield for citizens who have to watch their backs lest they be taken to court at the drop of a hat. Ostensibly, the courts are protecting the rights of citizens, but the absurd lengths to which litigation is taken has made the system a pantomime that pleases only lawyers. The trend may be an American hangover from the era of MacCarthysm, Americans never quite being able to shake off the persecution mania that was inculcated by Senator Eugene MacCarthy who led a Cold War witch-hunt against anyone even remotely thought of being a communist. ( Mac Carthy's homespun logic for the method of identifying communists was pithy. He said: " anything that walks like a duck and quacks like a duck must be a duck'')

Arthur C. Clarke was supposed to walk like a duck and quack like a duck. Therefore, here in Sri Lanka, he was 10LABELled a duck. I mean a phaedophile, after a Sunday Mirror article in England 10LABELled him a child abuser. (Even if he was a duck, he must have been a pretty lame duck, honk honk if you got the joke)

Now, it appears, stress on appears , that Arthur Clarke has been exonerated by the Sri Lankan police, and that the Interpol investigation is seeing a shift towards the probing of journalists who carried out the so-called confessionary interview given by Clarke.

The Clarke drama is melodramatic, but what's of immediate import is the focus that the Clarke case has brought on the general status of trends and proclivities towards litigation in Sri Lanka. Two contradictory social tenets appear to operate in the matter of combating activities such as phaedophlia. One is the social commitment towards preventing child abuse, which is indubitably a crime . The other is to ensure that society has a moral obligation to ensure that the need to prosecute is not converted into a moral crusade that smacks of self-righteousness rather than social concern.

Else we go down the slippery slope, and bring litigation down to the level of socio-psycobabble as it seems to be often the case in the United States for instance.

That's not an abstract argument, because the most recent remembered example was in the area of memory retrieval, where some horrendous prosecutions took place based on the results of a now almost disgraced pseudo science. What happened in short was that adults, especially women , began going to court, claiming that they were able to retrieve memories of child abuse by parents and relatives. This was through a system of "memory retrieval'' induced by hypnosis. Courts damned some defendants based on these so called scientific affirmations by psychologists, until later research proved that "memory retrieval'' of abuse was in large part figments of people's imagination . That was a very good example of what a persecution psychosis can do to innocent people in a charged situation where the level of social antipathy towards perpetrators of certain alleged crimes is high.

. But, the danger of being socially aggressive against situations such as phaedophelia is that it is an issue that almost contains an inbuilt trap. That trap is of activism degenerating into self-righteous persecution. The danger signals can even be remotely heard in the statement recently made by Dr. Herendra de Silva of the Presidential task force on child abuse, who says that most of the abusers are locals rather than foreigners and that male children are more susceptible to child abuse than females because there is a premium on virginity. That's true and is probably old hat, because the truth is that child abuse of the kind that Dr. Silva talks about has taken place in schools and even among priests at Buddhist temples of all places. That's not to justify the crime. But, it is to say that a sudden persecution psychosis may not be the proper answer to a problem that has a cultural genesis in a society that is still wedded to Victorian values. (i.e.: virginity among adults too is at a premium, therefore seeking other means of gratification has become almost a cultural alternative, practised albeit illegitimately by some Buddhist monks in their viharages. )

All of this is not to say that phaedophelia is a problem that should be obfuscated. . But, when people such as Harendra Silva say that "If I walk down the road holding my son's hand people wouldn't bother, but if a foreigner walks on the street holding the hand of a little boy, everyone will look at him," it makes one think whether he wants to censure holding hands between father and son? Probably not, but the tone connotes that we should step into a more sanitized culture, where innocent holding of hands is deemed some immoral act, as it is in the West where a fond tussling of a child's hair could get you in the slammer.

Though there should be legislation to combat child abuse, if we do not want to be a carbon copy of absurd America, we should probably watch out for rabid and overzealous legal systems that would create more problems to solve another.

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