No sacred cows

Racism, cricket and the problem with ancient allegations

13 November 2021

9:00 AM

13 November 2021

9:00 AM

Last week, the former England cricket captain Michael Vaughan revealed that he’d been accused by another cricketer — Azeem Rafiq — of having said something racist to him and two other Asian players 12 years ago. According to Rafiq, when Vaughan was playing for Yorkshire in 2009 he said to the three as they walked out on to the field together to face Nottinghamshire that there were ‘too many of you lot, we need to do something about it’.

Vaughan categorically denies saying this and it’s difficult to evaluate the veracity of the accusation because Rafiq hasn’t made it against him publicly. Rather, he named Vaughan behind closed doors while giving evidence to an independent panel set up by Yorkshire Country Cricket Club in which he also accused other players of making similar remarks.

The internal investigation was launched after Rafiq gave interviews to Wisden and other outlets last year saying that ‘institutional racism’ at the club was worse ‘than it’s ever been’ and had caused him so much pain during his Yorkshire career that he came close to committing suicide. He also brought a compensation claim against the club at an employment tribunal — a case which the new chairman Lord Patel settled earlier the week — and the same allegation against Vaughan may have formed part of that complaint.

This affair illustrates one of the difficulties of accusing a person of saying something racist more than a decade ago: that people’s memories become less reliable over time. If someone was tried in a criminal case 12 years after the fact and the only evidence was the testimony of a prosecution witness, it would be difficult for the jury to conclude that the defendant was guilty beyond reasonable doubt — particularly after the witness had been cross-examined by a skilled defence barrister. But no such protections exist in a workplace investigation, where the test is the balance of probabilities. How will the independent panel set up by Yorkshire decide whose recollection is more accurate, Rafiq’s or Vaughan’s? I don’t envy them that task.

To my mind, this is a strong argument for a statute of limitations on such accusations. I’m thinking of a new rule, enshrined in employment law, whereby someone cannot be subject to a workplace investigation for having supposedly said something offensive or inappropriate more than five years ago. If an allegation is going to be made, let it be made in a timely fashion so the panel looking into it can call on witnesses whose memories of events are relatively fresh. Failing that, the risk of an innocent person being punished seems too great.

Of course, in some cases there is documentary evidence in the form of social media posts. In September, the Middlesbrough defender Marc Bola was charged by the FA with ‘aggravated’ misconduct for a tweet he sent in 2012 that included a reference to sexual orientation. In his case, the argument for not putting him through the wringer is that he was 14 at the time. Can it be right to punish adults for things they said as children? The same employment law should prohibit someone being investigated by their employer for breaching a speech code before they turned 18.

What if the miscreant was an adult at the time they committed the sin and there’s documentary evidence? Should there be a statute of limitations even then? I think there should. When the offence archaeologists did a number on me at the beginning of 2018, one of the crimes they dredged up was something I’d written in 1987 for a book called The Oxford Myth. Punishing a person for something they said 31 years ago does seem excessive, not least because what is socially acceptable shifts over time. Again, a limit of about five years seems about right, given how quickly these norms can change. Perhaps the next person to lose their livelihood for historical social media posts could bring a case against the leader of the twitchfork mob in the European Court of Human Rights, claiming that such a deep dive into their past is a breach of their right to privacy.

I realise these proposals will be controversial, because they would prevent people being held to account for saying racist or homophobic or misogynistic things in the relatively recent past — maybe the time limit should be extended to ten years for serious offences. But scarcely a week passes without someone being cancelled for historical social media posts, and we need to rein in this moral Inquisition.

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