June 15, 1997
Courts of law, being a human creation run by humans to solve human problems, are necessarily imperfect. Though we may speak of justice and equality as if they were tangible realities, any responsible citizen knows they are only ideals to be approximated. It’s the irresponsible citizen, who subverts justice in the selfish, misbegotten belief that the inefficient can be made efficient and the approximate can be made absolute.
The term “star chamber” has entered our language as an example of such misconduct. It comes from the Court of Star Chamber in London’s Westminster Palace and effectively dates from the beginning of Henry VII’s reign (1485). The Star Chamber consisted of a group of royal advisors who met in secret to pass judgment on people deemed to be a threat to the public order. Whereas common-law courts were slow and expensive, justice in the Chamber was cheap and expedient, especially since there was no jury and the accused had no legal protection.
At first, this rival justice system enjoyed great public support, but there was a price for this efficiency. By the reign of Charles I (1625-1649), people were being tortured for confessions and the king used the Star Chamber to defeat political opponents. The reform-minded Long Parliament (1640-1653) abolished it, along with other arbitrary courts, in 1641.
Though the Star Chamber may have ended, the practice of subverting the rule of law in the name of political expediency did not die with it. Take, for example, our modern sexual star chambers, harassment panels, and in particular the one at Simon Fraser University which cost swim coach Liam Donnelly his job.
The parallels between this Star Chamber and the original one are eerily similar. Playing the role of the royal advisors we have three anonymous, unaccountable “judges.” Their investigation, if one can call it that, amounted to the acceptance of student Rachel Marsden's claim of date-rape. (On the advice of his lawyer, Donnelly ignored the hearing, but later submitted copious evidence to suggest that Marsden was harassing him.) Because accusation equals conviction, the panel found Donnelly guilty in absentia of sexual harassment and recommended he be fired.
The SFU Star Chamber did its business behind closed doors, away from the prying eyes of judicial probity and respect for the rights of the accused. Had Donnelly's case been tried in open court, the erotic e-mail and photographs he said Marsden sent him would have been entered into evidence. Therefore, I submit the case would never have gone to trial, and Donnelly would still have his job.
Further evidence that justice was hoodwinked comes from the spineless conduct of SFU president John Stubbs. In answers to questions posed by the Province, he abdicated his responsibility to uphold the integrity of the university and offered mealy-mouthed rationalizations of the star chamber’s diktat.
“My job is not to second-guess the panel,” said Stubbs. Wow!—an unaccountable tribunal has more decision-making power than the president. More to the point Stubbs demonstrates that the president is little more than a rubber stamp. He could have refused to dismiss Donnelly pending further evidence, but didn't. It was enough for Stubbs that Marsden "brought the issue [of sexual harassment] forward in good faith." (Given this statement, one realizes that Donnelly probably did the right thing by refusing to play along. After all, what is the value of concrete evidence when measured against a “good faith” accuser?)
On the issue of the admissibility of Donnelly's evidence, Stubbs appears clearly embarrassed, but doesn't have the courage to speak plainly. He sees “no error” in the current SFU harassment policy of denying further evidence, yet in the next sentence says: “Clearly it's going to be an issue that's going to be raised. I can't unilaterally change the policy.” (Why change it if it isn’t in error?) To the question of whether he believes Marsden’s charge, Stubbs had no answer: “I accepted the findings of the panel. I wasn't there.” Neither was justice.
Finally, there can be no doubt that SFU’s Star Chamber represents a parallel and competing justice system. Section 11 (d) of the Constitution Act, 1982 states: “Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” Only the most shameless dissembler could claim that SFU protected Donnelly’s constitutional rights.
As with 16th- and 17th-century England, the political climate today is fertile ground for a Star Chamber mentality, even a well-intentioned one. At universities, women angry that they have had to pursue sexual harassment charges in open court, find they can now avoid the stigma by secretly denouncing someone to a harassment officer and be assured that the charge will stick. Problem is, you can't prove a negative. Because of the inquisitorial nature of the Star Chamber, guilt is presupposed and based on the subjective, even uncorroborated, opinion of the accuser.
What makes such abominations possible, even praiseworthy, is our victim culture. In the May/June issue of the journal Society, Prof. Joel Best succinctly analyzes the metamorphosis of popular rights movements into the virulent “victim industry” we see today. He outlines seven tenets of victim ideology, and details how institutions—law, academia, the media, etc.—are co-opted by it.
On the subject of harassment Best writes: “Once sexual harassment gained recognition as a social problem, advocates began expanding its domain to include ‘conduct that creates an intimidating, hostile, or offensive environment.’ Such domain expansion is self-reinforcing: Expanded definitions support claims of larger problems; larger problems justify increased attention; and increased attention in turn encourages further expansion of the problems domain.”
In 1641, England abolished the Star Chamber; our universities must do likewise.