Some of my best friends are men…

Most of the talk about the trial of Clayton Weatherston and the killings by George Sodini has focussed on the anti-women sentiment and sexism woven into the discourse and society. But isn’t there anti-men sentiment in equal measure? Both are rooted in the idea that men cannot control themselves – when it comes to issues of sex and love men have no self control. The story it tells is that for men rejection becomes a killing rage without the chance of self-restraint.

In fact it’s rooted not only in the idea that men can’t control their rage, but in the idea that rage is their autonomic response to anything that goes wrong.

The prevalence of those myths and the unthinking acceptance of them doesn’t just lead to the deaths and beatings and rapes of hundreds of women a year, it also leads to the discounting and devaluing of masculinity.

I know so many good men: men who love, men who care, men with self control, men who do not have barely suppressed rage burning in their souls 24×7. Men who are diminished by every retelling of those myths of the generic caveman response.

When we finally repeal the provocation partial defence from the Crimes Act it will be a step forward not only for the women and gay men whose killings are trivialised by the defence, but also for every strong capable man whose masculinity is devalued by the idea that the measure of a man is his capacity to lapse into an uncontrollable killing rage.

Ok, rape, anything else?

From the Department of Whiskey Tango Foxtrot, this story from Australia:

Austereo’s Kyle and Jackie O Show sparked the controversy this morning when the 14-year-old girl revealed on air that she had been raped.
The girl’s mother submitted the teen to the test due to her concerns about her daughter’s experiences with drugs and sex and wagging school. Before the actual test, the girl admitted on air to Sandilands, “I’m scared … its not fair.”
Her mother asked her daughter: “Have you ever had sex?” The 14-year-old replied: “I’ve already told you the story about this … and don’t look at me and smile because its not funny.”
After a pause, she raised her voice with frustration and said: “Oh okay, I got raped when I was 12 years old.”
After a long pause, Sandilands then asked “Right … is that the only experience you’ve had?” before the mother admitted she knew of the rape “a couple of months ago”.
Her daughter yelled, “Yet you still asked me the question!

There really are no words.

L

That’s good advice

It is the judiciary’s job to apply the law as set by Parliament … this Government was elected on this sentencing policy. Judges are appointed to apply it. The Chief Justice’s speech does not represent Government policy in any way, shape or form.

Simon Power, Minister of Justice, 17 July 2009.

Read the Chief Justice’s speech before you judge it.

Lianne Dalziel, Labour Justice Spokesperson, 18 July 2009.

Lawyers should read proposals before criticising.

Simon Power, Minister of Justice, 24 July 2009.

You can’t judge an apple by looking at the tree
You can’t judge honey by looking at the bee
You can’t judge a sister by looking at the brother
You can’t judge a book by looking at the cover

Willie Dixon, 1962.

L

The role of the judiciary is to judge

There has been much wailing and gnashing of teeth over Dame Sian Elias’ remarks about the prison muster. Nevertheless, this is what Chief Justices (and their equivalents elsewhere) do from time to time – make pronouncements about the law and the state of the justice system, which carry no policy mandate but tend to get people talking.

I would note that the speech was much broader and more considered than ‘let the prisoners go free’ as it has been dramatised. But that Dame Sian has made a pronouncement so far out of step with government policy and public consciousness demonstrates either a remarkable sense of personal responsibility for the justice system or a desire to legislate from the bench.

There are three ways to slice it:

  1. The judiciary is right to involve itself in this sort of thing and you agree with the position taken
  2. The judiciary is right to involve itself in this sort of thing and you disagree with the position taken
  3. The judiciary is wrong to involve itself in this sort of thing, and should stay the hell out of wider matters of justice regardless

I’m the first, with Toad and most commenters on Eddie’s post on The Standard. Labour Justice spokesperson Lianne Dalziel is too. In another case I might be the second. Danyl Mclauchlan seems to be either in the first or the second; Idiot/Savant and Bomber are clearly the first; Madeleine Flannagan, herself a lawyer, seems somewhat grudgingly to be in the second camp. Peter Cresswell definitely is.

But it’s tricky; the third is a cover for the second. I think Simon Power and Garth McVicar (along with DPF and some stalwarts of the KBR hang’em-flog’em brigade) are taking the third position for rhetorical purposes when, if they were honest, they’d be defending the right of the judiciary to participate in NZ’s discourse of criminal justice but disagreeing with Dame Sian’s argument in this case – the second position. Dean Knight points out that, when it suits, the government does actually consider the judiciary’s views as integral to justice policy.

If the particulars of the Chief Justice’s speech had been different, I reckon they’d be singing from a songsheet other than the one which reads ‘butt out, you lily-livered liberal panty-waist’. Perhaps the one which reads ‘I disagree with your position but, as the head of NZ’s judiciary, you are entitled to take it’.

The flipside, I suppose, is whether those of us who agree with Dame Sian’s general position today would be supportive of her right to take it if we disagreed. We should be; all of us.

Edit: Andrew Geddis is in the first position; Stephen Franks is in the second.

L

Doing filtering right

Once upon a time quite a long time ago I was involved in the implementation of a porn filter at a public institution. At the time part of my role included “inappropriate use” investigations. I’ve spent far too many hours sifting through web and other access logs, writing up material for handover to the authorities, seizing equipment and seeing the flow on effect of a search warrant executed on someone’s home. I’ve sat across a table from someone I knew and made eye contact while I explained how I had discovered evidence he had repeatedly accessed a bestiality porn site. I wish I wasn’t so aware of just how bad porn has to be before it becomes illegal.

I strongly support voluntary at the border filtering for child porn, if I ran an ISP I would implement it and I would be grateful for any help the government provided. But… the government’s support and actions must be scoped, controlled and open to public scrutiny.

DIA should be doing this, but they should also be doing it right:

  1. The process should be public
  2. The scope should be public
  3. Both should be open to public scrutiny and comment (including a without prejudice process for challenging the filtering of a site).

Releasing the list of sites would be counterproductive but we do have a right to know what they’re up to. Is their mandate only child porn (2(a) of the definition of objectionable) or the other criteria as well? Who will make the decision? What is the review process? Will any monitoring be undertaken? Could that trigger an investigation? Will they guarantee it is only objectionable material? Is there scope for political interference? What does “voluntary” mean? Will there be negative consequences for ISPs that don’t opt in?

I totally support DIA’s stated intention, but the way they are approaching it is just plain wrong.

Provocation and victims of domestic violence

[I just wrote a rather long comment at The Hand Mirror about battered women and provocation, in response to people suggesting we need to maintain the partial defence of provocation to protect battered women. I am reproducing it here as it shows that the provocation does not help battered women, in fact it only protects their abusers]

The Law Commission has done a lot of work on this, and it appears that the provocation defence is not of value in “battered women syndrome” killings, so we lose no protection for women victims of domestic violence by repealing it.

Some Criminal Defences with Particular Reference to Battered Defendants

The Law Commission did a piece of work which focussed solely on defences for battered defendants completed in 2001 (Some Criminal Defences with Particular Reference to Battered Defendants – NZLC R 73. It shows that provocation is not an effective defence for battered women, and even that it has been successfully used by a perpetrator of domestic violence.

In R v Tepu a man successfully used provocation as a partial defence when he beaten his wife to death – her provoking act? going to the Police when he severely beat her

Partly in response to recommendations in that report the mandatory life sentence for murder was abolished in 2002, and judges have sentencing discretion for battered defendants.

The Partial Defence Of Provocation – NZLC R 98

From 2004 to 2007 the Law Commission did work specifically on provocation (The Partial Defence of Provocation) resulting in a recommendation for its repeal. As part of that they rechecked there would be no disadvantage for battered women and, in fact, did some handy stats.

Of the 81 homicide trials they looked at (2001 to 2005, Auckland and Wellington) in 15 provocation was used as a defence. In only one of those was provocation used as a defence by a woman. In that case, while the killer had experienced domestic violence, she killed her husband because he said he was leaving her. I won’t copy the description here (see p103 of report if you really want to), but it’s exactly the kind of killing-someone-because-they-say-they’re-leaving that we shouldn’t allow to be called manslaughter.


So there were go, the Law Commission has worked really hard on the issue, and provocation is not helping battered women who kill to protect themselves.

NZ Police says stopping rape is women’s responsibility

From this morning’s DomPost

Nineteen young women have been sexually assaulted after partying in Wellington’s central city this year, with most too drunk to remember what happened.

Police say the number of attacks on drunk young women is growing. “They are binge-drinking, make poor choices and can’t keep themselves safe,” Detective Senior Sergeant Paul Borrell said. “That’s a worry and that’s the preventable part of it.”

I won’t even try to compete with Queen of Thorns ability to express (out)rage, so this is after several deep breaths.

Is Detective Senior Sergeant Paul Borrell seriously intending to say that women are responsible when someone sexually assaults them? And that addressing rapists’ behaviour is not the way to prevent rape?

To be fair to him, he does go on to say that

“It’s up to friends of victims and potential offenders to do something about it. In my view, if something does happen, all of us have failed that person.”

So apparently it’s not entirely the young victim’s fault, it’s also the responsibility of her friends and (yay) the rapist’s friends, oh and pretty much everyone except the rapist (whose behaviour is apparently unpreventable).

I’ll leave the final words to Helen Sullivan, Wellington Sexual Abuse Help Foundation general manager, who says what the Police should have

“Why should the whole responsibility for a situation be put on women? The bottom line is we should be able to walk down the street or do anything without the threat of sexual violence.”