I have no problem with the ruling made by High Court judge Frank Seepersad against cricketer Lendl Simmons in favour of his ex-outside woman Therese Ho. But I do have several problems with how the judge arrived at his decision.
My main objection is the moralistic finger-wagging in Seepersad's ruling. He writes, "The court was alarmed by the manner in which the defendant viewed the claimant as an object and his statement as contained in the messages that 'she was just a f–k' is unacceptable."
This is wrong-headed on two counts: (1) the concept of "objectification" is an invention of feminists which has no psychological basis; (2) the assertion of unacceptability has no legal foundation.
Seepersad goes on: "The treatment of women as mere objects of pleasure is offensive, derogatory, antiquated, has no place in a civilised society and is indicative of the general lack of respect." Which is very nice and politically correct but, again, at odds with reality. As sex therapist Esther Perel notes in her book Mating in Captivity, "Sexual desire and good citizenship don't play by the same rules." Moreover, in sexually liberal countries like Sweden, where pornography is readily available, women have equal or more rights than men and abuse levels are low. By contrast, in conservative societies like Islamic ones where women don't even reveal their little toes, females have less rights and are abused more. So Seepersad's yardstick for respect seems suspect.
Nonetheless, Seepersad also wagged a finger at Ho: "The same moral obligation that she said caused her to inform Kabrina of her relations with the defendant when their relationship ended should have caused her to avoid the relationship with the defendant in the first place." Again, this is legally irrelevant to the case, takes Ho's claim at face value, and glosses over the sheer messiness of human relationships.
As Perel says, "The poetics of sex are often politically incorrect, thriving on power plays, role reversals, unfair advantages, imperious demands, seductive manipulations, and subtle cruelties." She adds, "the emphasis on egalitarian and respectful sex...is antithetical to erotic desire for men and women alike."
However, it is on this Puritan premise that Seepersad directs nearly all his moralising at Simmons. "Upon the shoulders of those who hold positions of power, prestige and publicity there rests an onerous responsibility to adhere to the highest standards of moral and civilised conduct," he pontificated.
It is not clear if Seepersad is referring to the posting of Ho's nude photos or Simmons' sex life. In any case, Seepersad seems unaware that, among professional sportsmen, the practice of casual hook-ups with many women is standard practice. This is virtually inevitable, since top male athletes are fit and rich and so, have lots of women willing to have sex with them. The West Indies cricket team is hardly likely to be an exception, with the most famous incident being Viv Richards' fathering a daughter with an Indian actress.
But, even if I didn't find Seepersad's moralising objectionable, I would still have issues with his legal reasoning. It appears from his ruling that he decided Ho was the wronged party, and then cast about for precedents to justify this decision, admitting that he had to go beyond what he described as a "myopic view of the law."
This sounds uncomfortably close to judicial activism. By contrast, when Justice Peter Jamadar had to rule on the constitutionality of the Trinity Cross, he found that "it is rational, reasonable and legitimate for Hindus and Muslims to consider the Trinity Cross an anathema and to consider its existence as the nation's highest award disrespectful, unfair and discriminatory." But, at the end of his learned and well-reasoned discourse, Jamadar concluded that due to the savings clause in the 1976 Constitution, he had no legal basis to favour the claimants.
A similar option was open to Seepersad, but he decided to invoke the "common law concept of Breach of Confidence." In focusing on confidentiality, Seepersad declared that "the issue to be determined is who was first responsible for the breach of confidentiality by their unauthorised distribution of the photos." He rejected Simmons' claim that Ho showed the photos to Simmons' wife. But the logical inference here is that, had Simmons proved that Ho had displayed these photos to a third party, her case would have been null and void.
So two issues arise: first, would her doing so have negated the "hurt, pain and damage" caused when Simmons posted the photos on social media; and, second, since Seepersad accepted that Ho told Simmons' wife about their affair, why did he not interpret this as an act of revenge that would also have caused hurt, pain and damage?
Simmons was undoubtedly wrong to distribute Ho's photos. But she was not without fault and, except for his dig about adultery, Seepersad nowhere in his ruling acknowledges this. His judgment reveals an anti-male bias that has already become prevalent in courts in North America, as well as a tendency to theocracy which even his boss Chief Justice Ivor Archie rejects.
Kevin Baldeosingh is a professional writer, author of three novels, and co-author of a History textbook.