[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.
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.
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.
Having returned to my Asian redoubt after 5 weeks in the USA at the family homestead, I can now take stock and reflect on the tone and tenor of American public discourse. Every time I make the yearly pilgrimage back to my native country I notice changes in how people phrase the moment. A few years back, when Dubya was leading his crusade against evil-doers, it was all about “bring it on,” and “opening a can of ass-whuppin.” Last year it was about, paradoxically, ‘change we can believe in” and “being thrown under the bus.” This year’s social motif is caught in the phrase “it is what it is.”
From public officials, to celebrities to the (wo)man on the street, the answer to most thorny questions or complex issues is captured in that phrase. This is remarkable because normally Americans have a strong sense of optimism and unbrindled faith in controlling their own destinies. But the public mood this year is one of resignation and fatalism, if not powerlessness and pessimism. People appear universally resigned to being pawns in a larger game, to be at the mercy of “powers that be,” to being unable to shift the course of their lives based on hard work and idealism alone. Cynicism abounds, apathy is on the rise once again, and people just expect to be disappointed by their leaders or do not expect much from that at all. Somewhat perversely, this debased threshold of consent gives the Obama administration added cushion or leeway when pursuing its policy reforms–anything it manages to accomplish in the policy field will appear to be unexpected and seemingly heroic. Coupled with Obama’s personal charisma, this means his administration really has to do very little in order to impress the mass public.
For the moment the dark mood is pervasive. When asked about personal indiscretions or ongoing subservience to corporate interests (most evident in the stilted debate on national health care), politicians reply: “it is what it is.” When asked about lawsuits, deaths and scandals, celebrities reply: “it is what it is.” When asked about job losses, foreclosures and stifled dreams, average Joe replies “it is what it is.” When asked about the utility of either of the the two wars the USA is fighting, the universal response is that “it is what it is.”When asked if Sarah Palin’s resignation speech was drug-induced or merely incoherent, the reply inevitably is “it is what it is.” This is the 2009 version of the 1970’s adage “s**t happens.” In each instance the point of the phrase is not only to convey resignation; it also signals an end to the conversation on a particular subject.
There also has been is a signal turn in the American social psyche. In a country that already saw little value in public intellectuals and critical discourse, the turn symbolised in this one-sentence fatalism is a sign of despair. It also may be a sign of social rot.
In that spirit I am compelled to ask a few questions myself. Why is it that the Republican Party is the party of moral hypocrites, racists and corporate thieves? What happened to the party of Abraham Lincoln and Nelson Rockefeller? Why does it not have any responses or initiatives to counter the Obama administration’s projects on a variety of fronts? Why does it continue to cater to religious extremists, social bigots and media charlatans? Why does it allow Dick Cheney, of all people, to be the defender of the faith? Why is it mired in McCarthyite fear of “socialism” or “communism?” Why does it deny any wrong done by the Bush 43 administration, be it the constitutional subversions of the “war on terror,” the trillion dollar national debt, the national financial melt down or the erosion of US international prestige and power? Why does its de facto leaders openly call for Obama’s downfall, in an abject display of disloyal opposition? Why does it not see the need to undergo serious self-examination and rejuvination along new ideological lines given the abject failures of the Bush 43 administration and the electoral massacre suffered in 2008?
All of this is the stuff of Democratic dreams, and short of arrogance born of unchecked power, the Democrats pretty much have a free run through 2012 (and beyond) so long as the Republicans continue to pursue their 1950s Barbie and Ken dreams in a country where Barbie is increasingly of mixed race and Ken just might be gay. Therein lies the problem, because devoid of a real political opposition that offers substantive alternatives on matters of policy to them (and which extend beyond the tired opposition to abortion and gay rights), the Democrats will, inevitably, succumb to their own greed and indifference. We might call the latter the Clinton syndrome.
The question then is why, in an age of fatalism, the Republican Party does not respond to the challenges of the moment in something other than retrograde fashion?The answer it seems is that it is what it is.
Posted on 06:47, July 13th, 2009 by Anita
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
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
This morning’s Insight documentary on NatRad
Kim Griggs’ journalistic technique is fine – she’s talked to the major stakeholders, given both sides of the story and generally done very well at covering the issues. But she’s labouring under a delusion about what copyright grants. Specifically, she says:
My emphasis. But there is no copyright law anywhere which grants creators a right to get paid – all they have is the right to control the exploitation of their work, and if they can turn that into payment, then good on them. In the documentary John Key also makes this error, conflating “compensation and recognition” into the right to get paid.
It’s this false idea – that copyright owners have an inherent right to be paid regardless of how broken their business model might be – which prevents the development of better business models which mean they don’t need to treat their customers like the enemy in order to make money. Even the copyright lobby accepts this; they’re just so far behind the curve that their old models have failed before their new models are even off the drawing board. Of course, if they want to keep applying the stick, rather than employing the carrot, that’s their right.
Edit: Kim Griggs has emailed me to outline her extensive experience and expertise in the copyright industry in NZ, and Pippa makes many of the same points in a comment. On that basis I have apologised to Kim for the statement above about her expertise, and for suggestion she was fooled by the copyright lobby.
Nevertheless, my broader criticism stands: the statement I highlighted is wrong in fact and is unhelpful to the cause of reasoned debate because it blurs issues around economic rights, moral rights, contract law and industry practice into a blank statement that copyright == money.
I’ve offered Kim an opportunity to put her case here, if she chooses.
The basic critique I and others have made about the s59 referendum question is that it only makes sense if you accept the implicit assertions with which it is loaded. Linguistic or semiotic texts don’t have wholly objective meanings – their meaning is partially subjective to the interpreter, and meaning approaches objectivity only to the extent to which people can (or will) agree on the interpretation of a text. What we call ‘objective’ meaning in a text really describes a particularly strong agreement on interpretation within a notional audience, and frequently what we call an absence of understanding or comprehension of a text really just describes an absence of agreement on the interpretation between one part of a notional audience and another. It’s easy to overstate this: usually within a given audience there is a reasonable degree of agreement on interpretation, and this is particularly true with regard to ordinary or mundane language or imagery. Some texts are more complex than others, and some are more controversial and will tend to divide the agreement of an audience more than others, but this is not a pure subjectivist or hyper-relativist argument that there is no useful meaning in anything or that definitions or the understanding of common referents are irrelevant or somehow unattainable. Just to say that meaning is not strictly encoded in a text but is as much a function of interpretation. Texts with more than one reasonable reading for a given notional audience (such that ordinary people within an audience group can reasonably differ on interpretation) are called ‘polysemic’, which is just a fancy technical way to say they have multiple meanings.
Broadly speaking the task of a propaganda campaign, or of political speech in general, is to pose a monosemic question or scenario – one which a reasonable person from within the target audience group can only read or answer in one way. This often relies on loading one’s text with as much implicit context as possible so as to avoid the possibility of part (or all) of your audience misreading it; shipping with instructions, as it were. In a strategic sense, it is not the text itself which is the payload – the frame and its implied norms enable the propagandist to construct (manufacture) the audience’s consent for their preferred reading of the wider text.
Returning to the s59 referendum question, it is a fair and credible attempt at freighting a question with an implicit value judgement which renders the answer obvious if the question is read naïvely. But it goes too far; reasonable people don’t need to try very hard to see the payload, which is the implication that (a) a smack can be part of good parental correction and (b) such a smack is a criminal offence. In a successful propaganda campaign of this nature, the textual agenda is more obvious and the contextual agenda less so, and the referendum’s supporters have been working very hard to try to shut down contrary readings of their campaign in order to de-emphasise the frame and context, and emphasise the naïve text. They’ve failed in this, but it is instructive nevertheless, and that isn’t to say they haven’t achieved any of their objectives. The problem is that the referendum question and campaign is essentially preaching to the choir – it makes sense to a conservative segment of the population who care a lot about this issue and are riled up by the constraint on their “freedom” to smack, and it speaks to them because they already accept its premises. But it isn’t much use as a polemic device because, for those who don’t accept its premises, it just looks like a stupid question. This is the problem with developing political strategy in an echo-chamber – just because you believe your own hype doesn’t mean everyone does. To pervert Schneier’s Law: anyone can design a political campaign so clever that he or she can’t imagine why anyone wouldn’t agree with it. This feeds back into my ongoing critique of the state of Labour politics: toward the end they believed their own hype, in much the same way as the AAS lobby believes theirs.
Campaigns which employ symbolic or propaganda methods, whether for beneficial purposes or not, are ultimately about social control. A society which responds uniformly and predictably is, all else equal, easier to control than a diverse society, so a great deal of effort is put into the crafting of messages, delivery systems, textual and contextual input to a society which will generate predictable output. Public campaigns, to be successful, require their audience to share strong agreement about interpretation and common understanding of context for their payload to be effective. Robbed of context and freighted assumptions, even something as apparently intuitive, important and uncontroversial as a FEMA public readiness campaign can be highly puzzling and confusing if read naïvely.
Edit: And sometimes, when the context seems obvious, it’s not:
Such as, would either (any?) of the women who alleged sexual harassment by Richard Worth have gotten away with pleading manslaughter if they’d killed him in response to his sexual advances?
I have, of late, been rather critical of Labour, and the reason for my critical tone is at least partially because the sort of Pollyanna bullshit exhibited by certain partisans on this thread (and elsewhere) is eerily similar to the rah-rah-it’s-all-good campaign of 2008, in which the True Believers grossly underestimated John Key and National, attacked him on his weaknesses and derided him as less than credible and not a proper threat, and got soundly and deservedly whipped at the polls for doing so. I don’t want to see that happen again, so I say: stop just assuming the electorate will come to their senses and vote Labour because they know it’s right, or because Labour’s policies will objectively benefit them. They won’t; that’s not enough. You have to convince them to do so; you have to make them want to support you; you have to lead them. So IrishBill’s advice is a good generic communication strategy; it’s also critical that it also be backed by a credible policy strategy (which, I hope, is brewing at present).
To all the True Believers: you don’t help your chosen party by being uncritical cheerleaders; you feed the echo-chamber. Stop it. Loyalists should be a party’s harshest critics and strongest agitators for change when things aren’t working – which, absent deep changes within Labour since the 2008 election, they aren’t. Good supporters ask hard questions, expect good answers, reward rigour, punish prevarication and do not live in awe of or aim to preserve the precious disposition of their representatives. They do not deride those who do so as traitors or try to hush them up for fear of giving the impression of disunity, killing any hope of dynamism in the process.
So far I see precious little of this on the left in NZ, and that does not fill me with hope for the future. The glimmers of hope I see are from the Green Party and the māori party, who have had the good sense to cut themselves loose from the drifting hulk of Labour, at least until its people start to set things to rights again.
As a propaganda geek, I’m concerned (some might say paranoid) about surveillance and its growing use as a means of social control, or as a tool to gather information used to justify and enact other social control mechanisms. Surveillance is the flipside of propaganda, and propaganda systems of social control can’t function properly without the feedback which surveillance provides; effectively, without surveillance, the controller is blind. This encompasses both the hard kind (cameras, enforced ID checking, enhanced search and detention rights) and the soft kind (data mining and data matching, consumer profiling, and so on). For this reason I don’t have a Facebook account, or a Fly Buys card, and I don’t use my gmail account for anything much other than website registrations as a spamtrap; and everything into or out of my webserver in Texas is encrypted. Although since they decided that registration wasn’t mandatory I do have a Snapper card (I wrote about potential surveillance problems with Snapper a bit over a year ago). I feed it with cash. Note: I’m not paranoid about hiding my identity; I’m paranoid about what other information might be matched to it and how an interested party might use that information to target me for use as part of their agenda.
Anyway. Surveillance is becoming increasingly ubiquitous, as people trade off privacy against security, but the problem is that the trade-off is implicitly framed as a matter of who you choose to trust – the ‘crims’ (those with something to hide and therefore something to fear), or those who maintain that security (and who necessarily have greater powers to put that information to use).
I’m working on a project at present which involves reviewing a great deal of media coverage about antisocial behaviour in Western Australia, and surveillance appears widely regarded as the key to cracking the (apparently endemic) problems they have over there. These include:
Frankly, it’d be enough to put me off going to the pub. The culture there has become so accepting of surveillance that this is generally unquestioned by those in authority, and the electorate demands nothing more of its representatives. Perhaps even worse is the UK, whose national ID card scheme was the subject of an excellent but unsuccessful counter-propaganda campaign.
While we have some surveillance cameras (most notably in Queen Street and central Christchurch) and a reliance on RFIDs (in passports, for instance), and we have a police culture of aggressive surveillance and with strong authoritarian tendencies, things aren’t so bad in New Zealand. So it is with some dismay that I read yesterday’s op-ed by Chapman Tripp solicitors Simon Peart and Richard May on the NZ Herald website which warns of the alarming powers of surveillance and social control which could be exercised by regulatory bodies including the Commerce Commission, the Reserve Bank (!) and MAF under the newly (and quietly)-introduced Search and Surveillance Bill. They really are quite alarming – the right to covertly surveil ordinary citizens in their own homes, the extention of enforcement powers normally the preserve of the police to other regulatory bodies, the right to infiltrate and surveil computer networks and to secure premises against their legitimate owners, and, frighteningly, the nullification of legal privilege in some communications. Read the article. Read the bill if you can spare the time (it’s 196 exhausting and obfuscatory pages).
As I said, this comes down to trust. The problem is that, even though I generally trust governments, I don’t trust their regulatory and social control agencies which are not subject to electoral veto. That’s the problem with this bill – it seeks to remove the matters of surveillance and investigation from the political sphere where it belongs and create a new surveillance culture norm in NZ.
Edit: I have somehow missed the Gordon Campbell’s excellent piece on the same topic. Read that, too.
Posted on 11:28, July 7th, 2009 by Pablo
The thread on the post about the Honduran coup made me realise that there is much misapprehension about coups and military regimes. I shall attempt to clarify the key terms and concepts involved.
Coups are the forcible resolution of a conflict between elites. They stem from the failure to resolve said conflicts within civilian institutional boundaries. They are not revolutions.
Revolutions are mass-based armed collective action leading to parametric change in society. Parametric change involves fundamental economic, social and political change beyond the change of regime. Revolutions are mass mobilisational; coups are demobilisational. In the 20th and early 21st century the only regimes overthrown by armed revolutions have been oligarchic authoritarian, with the collapse of the Eastern bloc being a mix of mass based collective resistance (not always armed) mixed with elite fracture in favour of reform. Hence they have been called by some scholars “peaceful revolutions,” although there is considerable debate about the authenticity of their revolutionary character. No democracy has been overthrown by a revolution (although some have been created by them), but many a democracy has fallen to a coups.
Coups can be hard or soft depending on the amount of mass mobilization preceding the coup and the degree of repression involved in the military intervention. The equation is simple: The more there is mass based collective action, particularly armed collective violence, the harsher the coup. The harsher coup, the more militarised the state will become after the coup, and the higher the degree of repression of regime opponents. Thus student riots, middle class demonstrations and wildcat strikes will invite a modicum of repression, whereas guerrilla attacks or civil war will invite a far more deadly form of military intervention.
Military rule has two variants: ruler and arbitrator (or mediator) military regimes. Ruler military regimes are rule by the military as an institution, with a defined ideological project and no time limit on their tenure in power. The ideological project has specified economic, social and political objectives, which means that ruler militaries often have a specific class coalition underpinning them. The Latin American military-bureaucratic authoritarians of the 1960s, 1970s and 1980s were allied with the export bourgeoisie, finance capital and foreign MNCs (as examples think of the Pinochet regime in Chile or the Argentine, Guatemalan or El Salvadorean juntas of the 1960s and 1970s), whereas the Arab military developmentalist regimes of the 1950s through the 1990s were allied with the secular domestic bourgeoisie and urban working classes (think Nassar in Egypt, Saddam Hussein in Iraq and post-Kemalist Turkey prior to 1980). The Burmese junta is a contemporary example. Note that although civilians may be present in ruler military regimes, and they may even have parties, parliaments and civilian courts as legitimating facades, it is the military as an institution that ultimately governs.
Ruler military regimes often come to power after their prior failures as arbitrator military regimes. Arbitrator military regimes only intervene in politics in order to restore a broken institutional order after a period of conflict. The military approach to intervention is much like a “time out” given by parents to bickering children, although in this case the bickering is between civilian elites and their political representatives. The arbitrator military sets a time table for withdrawal from power and demands that the civilian elites put their political house in order less there be a more severe intervention down the road. The military has no ideological project of its own and prefers to return to its security functions sooner rather than later, understanding that the major internal problem of being in government is erosion of its combat skills (which is the Achilles Heel of ruler militaries that stay in power for extended periods of time, since rather than training for combat, officers become military bureaucrats whose major activity is issuing edicts, writing memos and answering the phone. That invites attack by adversaries).
For much of its recent modern history Honduras has been governed by ruler military regimes (following on oligarchic rule in the 19th and early 20th centuries). After the installation of democracy it has attempted to professionalise in order to better serve the national defense (and recalling that it lost the soccer war with El Salvador). In the 1980s the US cast a blind eye on the counter-insurgency campaign conducted against local Marxist and Maoist guerrillas in exchange for allowing the stationing of counter-revolutionary forces and US advisors on the border with Nicaragua. The US currently maintains a military force of 600 troops (mostly special operations and counter-narcotics detachments) at a Honduran military air base in Soto Cano. In the 1990s the US pushed hard on the Honduran military to remove itself from politics altogether, making a variety of military assistance programs contingent upon it doing so. Until a week ago the Honduran high command upheld its end of the bargain.
It should be noted that in a small country like Honduras the elite is very interbred. Military commanders are related by blood to political leaders, high ranking clergy, large landowning families and the rising urban noveau riche. The officer corps cannot escape, even at dinner conversations, the bickering of politicians and other influential civilians. Thus the pull on them to intervene emanating from these civilians is unusually strong, and almost always in favour of protecting elite interests against “socialist” threats.
The current coup is, therefore, a variant or sub-type of the arbitrator military regime. The military removed President Zelaya and his government and allowed the installation of his designated civilian successor (and opponent), Roberto Micheletti, after Congressional and Supreme Court requests to do so. It maintains a strong presence on the streets of Tegucigalpa and the border regions, but has not resorted to blanket repression, arrest, detention and murder of Zelaya supporters (although some deaths in clashes have been reported), nor has it imposed a state of siege (although a state of emergency is in force). It has not militarised the state apparatus, has not assumed a larger governmental role, and other than on specifically security-related matters, prefers to have the new civilian government do the talking. The speed in which it intervened and withdrew is a novel twist on the arbitrator military story. By all measures this has been a relatively benign coup.
But a coup is a coup, and by the standards of the OAS and international community in general, an illegal usurpation of the popular will as expressed through regular elections and civilian political institutions. Therefore, the military command should have resisted the move (and civilian entreties), as military upholding of the constitution means simply to abide by it, not necessarilly act as the guarantor of its enforcement. It will now be interesting to see how the political negotiations over Zelaya’s fate work out, but whatever the outcome and whether Zelaya is allowed to return to Honduras or not, he is finished as president. The one good thing to take from this political farce is that the Honduran military command apparently underestands, even if only out of self-interest, that its days as a ruler military are as over as are Zelaya’s dreams of re-election.