Posts Tagged ‘Domestic violence’

Voodoo justice–compassion or condescension?

datePosted on 14:13, August 17th, 2009 by Pablo

The news that five Maori family members were given community sentences and spared jail terms after being found guilty of the manslaughter of their niece, who they believed to be possessed by demons, during a prolonged exorcism ritual that involved repeated eye scratching and waterboarding (a term now unfortunately part of the popular lexicon) of the victim (who it turns out was mentally ill rather than possessed), has caused a predictable stir in judicial and political circles. Pundits on the right lambaste the apparent double standard applied to Maori in this instance, where gross ignorance, superstition and stupidity cloaked in the garb of “traditional beliefs” is given a cultural pass when it comes to adjudicating personal and collective responsibility for the lethal consequences of said beliefs. The argument goes that any Pakeha exorcism resulting in death would have seen those responsible incarcerated, and that ignorance is no excuse is the eyes of the law. There is truth to this view, as there have been prior instances of bible-bashers (here meant literally) being jailed for abuses against individuals suspected of possession or other religious transgressions. There is also the issue of relative justice, in the sense that people involved in assisted suicide or drugs offenses have received jail terms rather than community service (ie. their crimes were less heinous  than this one). From this vantage point, the light sentences handed down to the defendants on grounds that they did not realise the consequences of their actions and thought that they were doing good for the victim is an astonishing act of judicial double-standards rooted in over weaning political correctness. The bottom line, in this view, is that is is condescending, patronising and just plain wrong to let Maori off lightly because they may have “traditional” beliefs the lead them to commit acts that others could not get away with. After all, “traditional beliefs” are not always correct, civilised or appropriate, because if they were then NZ society and the law would approve of foot-binding, genital mutilation and ritualistic whippings as acceptable practice for those who ascribe to them.

On the other hand, some progressive pundits and cultural relativists see in the decision a wise act of compassion by a judge who believed that the family had suffered enough with the inadvertent death of Janet Moses at their own hands. In this view it serves no purpose to punish them with jail terms because they are already acutely aware of the mistake and have a life long punishment to serve as a result of it. They and society would be better served by having them do community service and learn more about their own cultural heritage so as to not distort traditional beliefs regarding makuto and its treatment.

From my perspective, the main trouble is that in democracies the law should universally apply, and that application should apply universally in sentencing. If ignorance of the law is not an excuse for violating traffic regulations, then surely it is no excuse for manslaughter. Yet in heterogeneous societies comprised of an assortment of pre-modern, modern and post-modern beliefs espoused by indigenous, colonial and post-colonial groups, it may be impossible to apply the “justice for all” standard in ways that do, in fact, ensure so. I am thus left with mixed feelings about the verdict and sentence. On the one hand, the actions of these individuals are inexcusable; on the other hand, they were acting in good faith when they committed them. What then is a fair sentence in this case?  Are some groups entitled (that word again!) to different standards of justice based upon their belief systems? For the moment I am left with the uneasy feeling that ignorance may not be bliss, but for some it makes for a better defense.

Provocation and victims of domestic violence

datePosted on 19:39, July 14th, 2009 by Anita

[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.

Clayton Weatherston put a knife in his bag, went to his ex-girlfriend’s house and stabbed her to death. He admits to all of that but he is pleading not guilty to murder, and s169 of the Crimes Act means he may only be found guilty of manslaughter. s169 says that blaming her is a defence, it says that if she provoked him and he killed her it is not murder.

It sounds far fetched, but it’s happened many times before. In 2006 Tevita Noa was found not guilty of murder; he had beaten his wife to death with a cricket bat after finding explicit photos on her cell phone. Amsheen Arif Ali stabbed Colin Hart five times, only manslaughter because Hart had made sexual advances toward him. Phillip Edwards bashed David McNee in the face 40 times, stole his car and possessions and boasted about it afterwards, only manslaughter because McNee, paying Edwards for sex, had touched Edwards’ anus.

s169 enshrines blaming the victim in law – it says that in New Zealand a man may beat a woman or a gay man to death as long as it’s their fault, her fault for wanting to leave, his fault for being gay.

In 2007 the Law Commission recommended the repeal of the section and … nothing.

Earlier this year Simon Power’s office told me

I expect to consider these proposals later this year, and will assess, at that stage, how any reforms of this nature might fall within the Government’s current legislative priorities.

But … nothing.

So, if you want to live in a country which doesn’t enshrine victim blaming in law, write to Simon Power and ask him to repeal s169 of the Crimes Act, ask him to treat the murder of wives, gay men and ex-girlfriends as murder.

[Many thanks to Idiot/Savant who has kept this issue on the agenda]

Ink by the barrel

datePosted on 00:52, April 17th, 2009 by Lew

There’s an interesting range of responses to the Tony Veitch guilty plea of reckless disregard causing injury to Kristin Dunne-Powell, his conviction and sentence to a fine and community service.

Some are baying for blood. The KBR aren’t quite unanimous that he should go to jail, but they’re close (though there is a foul stench of `men have rights [to kick the shit out of people who don’t behave]’ as well). Haiku Dave is particularly grim:

should have got jail, then
he’d know what it’s like to be
attacked from behind

Idiot/Savant is arguing it’s Bruce Emery all over again (and he’s not wrong). Commenter Alison at The Hand Mirror shows some sense, figuring that if prison isn’t a good thing for a random violent offender, it’s not going to be a good thing for Veitch either. Heather Henare, of Women’s Refuge, is similarly cool-headed. The Herald’s Your Views is divided, as are the talkback hordes. A particularly inspired friend and colleague of mine suggested he be made to front the ACC back injury ad campaign, needing to stand on a rickety chair or somesuch in order to reach something up high. Humiliation comes in many forms.

Judge Doogue told told Veitch he was the architect of his own misfortune, and I think that if he does genuinely intend to take legal action against the media for their treatment of the case this past year, then Tony Veitch will also become the architect of his own humiliation. The facts of the case are fairly simple: there is no possible justification he can give for his attack on Dunne-Powell, no argument he can make which will put him on the side of right, and any moral high ground he tries to occupy will come under sustained fire from more sources than he and his team of lawyers can possibly afford to shut down because public sympathy toward celebrities evaporates pretty rapidly when they are seen to be taking advantage of their celebrity status. At this point anything Tony Veitch says or does will play against him. If he tries to smack down the media establishment, any publisher who chooses to fight gets the chance to put the whole stinking mess on the public record. Tim Pankhurst, if he were still editor of the Dominion Post, would pick it up in a moment out of sheer bloody-mindedness. Veitch might be planning to go back to work for The Radio Network, and that might mean APN goes easy, but that’s a great risk to them – while NewsTalk ZB and Radio Sport might not need to demonstrate their lack of fear or favour, the NZ Herald surely does.

My advice to Tony Veitch: keep your head down and take your lumps like you made Kristin Dunne-Powell take hers [though you deserve yours, and she didn’t]. If you want to show us you’re better than we think you are, there is no short-cut, no easy atonement which you can buy or create from words or gestures. You can’t fix this by becoming a legal bully as you are (or were) a physical bully. If you genuinely want to be known and recognised as a good and righteous person, then the time to undertake good and righteous action is now. For your own sake if for nobody else’s.

L

Friends don’t let friends rape

datePosted on 06:00, January 31st, 2009 by Anita

Over the last week or so there’s been a lot of talk about the “It’s not ok” campaign (I recommend Luddite Journo and Russell Brown, I do not recommend Bill Ralston), at the same time I’ve been commuting past huge signs saying “Safe in the City – Stick with your mates” with a picture of young women out on the town.

With drink driving we have, over the last few years, learnt that the person drink driving is 100% to blame and that we can and should step up and help our friends and families not drink drive.

More recently we have at least started to learn that the person who is violent towards their partner, children, elderly parent or other family member is 100% to blame and that we can and should step up and help our friends and families not hurt the ones they love.

Yet when it comes to rape we hold the victim, at least partly, responsible and believe that women have a responsibility to stop their friends and family being raped.

The reality is that we all know people who rape, just as we all know people who have been raped. I’m talking about the fact some of the people we know have raped people they know, and they way they’ve talked about sex and dates and partners so we’ve had every opportunity to hear that true consent isn’t an issue for them.

This isn’t a women vs men issue – both men and women are raped, both women and men rape, and every single one of us is able to stop our friends and family raping.

Why don’t the ads say that?

[Hat tip to Queen of Thorns and her magical sexual assault pixies]

Domestic Violence (Enhancing Safety) Bill

datePosted on 06:00, January 10th, 2009 by Anita

As part of fulfilling their election promises the government has put forward changes to the domestic violence legislation. The proposal will see Police able to issue an order banning the perpetrator of domestic violence from the home for five days to protect the victim and any children, those orders will not be subject to any kind of judicial review or oversight.

The first part is a reasonable approach to the issue, the second is clearly wrongheaded – why should these orders be without judicial review or oversight? Where are the checks and balances?

The problem the Police face is what to do in the middle of the night in the face of a case of the less serious end of the spectrum of domestic violence (in the more serious cases they simply arrest the abuser). At the moment in cases which don’t quite warrant that they have three options: leave the abuser at large and hope nothing worse happens, tell the victim to go to a refuge or a friend’s place, or lock the abuser up anyhow. The ability to issue an order banning the abuser from the house would be a sensible tool to add to this.

Idiot/Savant has called for the Bill to be rejected but that doesn’t improve the current situation which probably sees both unnecessary imprisonment and victims being driven out of their homes. Deborah suggests reducing the period to 72 hours, but I’m not sure it’s the period that’s the problem as long as there’s an opportunity to review inappropriate exclusions.

I think that the Police should have the ability to ban the abuser immediately from the house for five days. The first day that courts are open the Police should then go before the court and have the order reconfirmed with everyone involved able to be heard. The court can then either confirm the order, reject the order or, potentially, issue a normal protection order. The order itself should be subject to the normal review process.

That way victims of domestic violence are protected, abusers are not unnecessarily arrested, and the standard judicial processes and reviews are available to all involved.

What do you all think? We have until late February to get submissions in, so we have time to figure out a solution which would really work.