Internacionalización

Legal discourses provided the primary framework for interpreting men’s violence

against wives and partners in the criminal justice system. Following a police

prosecution, the case of an accused was heard before a magistrate or judge in a court of law. Offences that incurred a maximum of three years imprisonment could be heard

in the Magistrate’s Court and most domestic assaults were heard in this court. More

serious charges such as unlawful killing or sexual crimes, were heard in the Supreme Court where defendants could elect for trial by jury or by judge alone. In 1980 magistrates were re-named ‘district court judges’ and the Magistrate Courts became District Courts, with increased jurisdiction and some provision for juries.

The very construction of crime and “principles of law” governing criminal

proceedings had far-reaching consequences for women victims of domestic assaults. The essential purpose of criminal proceedings was to determine whether an offence

1_{David Brown, ‘Recurring themes in Contemporary Criminal Justice Developments and Debates’, in}

Julia Tolmie and Warren Brookbanks, eds, Criminal Justice in New Zealand, Wellington: Lexis Nexis Ltd., 2000, p.11.

had been committed against the sovereign’s peace.2

This approach transformed a violent domestic-located event into one where the state was positioned as the nominal victim of the offence and the woman was relegated to the status of witness.3 The outcome for the woman in the case was of secondary importance and she had no claim for redress. As a witness for the Crown, the woman was vulnerable to a re- victimization through having to relive the assault and be questioned aggressively by defence counsel.Without legal representation she was reliant on the prosecutor to represent her interests.4 In effect the legal framework obscured the woman, and her needs became subservient to the wider public interest. As one magistrate told an

offender, ‘for the sake of the police, I hope you are successful in patching up your troubles’.5

This generated a critical attitude to women who refused to testify, as

expressed in one magistrate’s comment that he wished ‘complainants would make up

their minds…before they complain to the police’.6 Unreliable witnesses were viewed as wasting court time and public monies.

Discourses that protected civil liberties by restricting state power were embedded in legal practices, and upheld the integrity of the law. Principles included neutrality and standards of proof such as guilt beyond reasonable doubt. In cases involving domestic

assaults, these principles of law could protect offenders and obstruct women’s claims

for legal redress and protection. One judge said, ‘you can only judge the case on the evidence presented to you, you are not to be swayed by sympathy for either party, as a

judge you are supposed to be objective.’ The judge ‘cannot go in presuming that it is

probably one of those cases where a woman has been beaten up and so forth.’7 This judge said it was difficult to decide which party was telling the truth when both appeared credible.8 In a 1980 hearing for an assault on a female, another judge could

not conclusively determine the wife’s credibility because there was conflicting

evidence. While acknowledging it was likely there was an assault, outside the wife’s

evidence, which he had difficulty accepting, the judge found no evidence for this. He

2 _{Phillip Stenning, The Modern Prosecution Process in New Zealand, Wellington: Victoria University}

Press, 2008, p.206.

3 _{Ibid., p.205.} 4

Ibid., pp.205-6.

5_{‘Threatened Wife with Knife’, Truth, 15 January 1974, p.17.} 6_{‘Wife’s Charge Dropped’, Truth, 9 September 1975, p.20.} 7 _{Interview with a judge, 1 May 2008.}

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had to dismiss the case because he did not know the truth to the extent of being satisfied beyond reasonable doubt.9

Examples such as that described above show legal constraints made it difficult for judges to deal adequately with domestic assaults. In that case, social work records indicated that in all probability, at least some, if not all, of the wife’s allegations were valid, and that the failure of the courts to discipline the husband put the safety of the wife and children at risk. According to the Society for the Protection of Home and Family (SPHF), the wife had separated from her husband because of his violence to herself and the children. Thereafter her husband persistently phoned and sat outside the house in his car. He sporadically exercised his right to access, drove drunk with the children, told them he was going to kill their mother and threatened the wife that he would kill the children unless she paid insurance money. The five-year old boy was described as disturbed; he would deliberately hurt himself and have crying fits. After one access visit the wife found a cigarette burn on her son. She contacted Social Welfare, but no investigation ensued. After this incident the wife obstructed access, and a year later the children were described as having improved. The alleged assault occurred when, after this period of no access, the husband visited the wife’s home at 10 p.m. and demanded to see the children. On being told they were asleep he grabbed the wife around her throat, began bashing her head against the door and put a finger in her eye saying he was going to pull it out.10Based on the SPHF’s records, the wife and children endured considerable violence and the husband persisted in threatening their safety, both physically and psychologically. Legal practices re-constructed the assault as a conflict of evidence between two parties, which advantaged the alleged offender because guilt had to be proven beyond reasonable doubt. The private nature of domestic assaults made this difficult. The effect was a failure of the court to protect the wife and children.