MARCO TEÓRICO
A. Modelo constructivista (1999-2004) de capacitación docente del Ministerio de Educación.
A victim-centred approach, that is a focus on the effects of cruel conduct on a person, potentially offered women greater opportunity for protection than the offender-based approach in criminal law. However, establishing cruelty was a more subjective process because it involved a private affair between two individuals rather than an offence against the community as a whole. Standards of marital conduct were variable. In domestic law cases legal precedent was of little use because decisions rested on the particularities of the effect of the conduct alleged to be cruel.46 This meant that magistrates and judges ruling on domestic cases had greater discretion. Where persistent cruelty was established, a magistrate still had discretionary power to make or refuse an order.47 This meant that there was potential for the influence of non-legal and opaque discourses. Individual proclivities often explained the difference in Appeal Court judgments.48 It was suggested that any experienced practitioner would pay far more attention to the personality of the judge before the case was to appear than to earlier cases, which might have furnished precedents.49 One New Zealand magistrate actually went on record that he totally disregarded the law in domestic proceedings because he was dealing with human problems.50
Because judicial culture perpetuated the power structures within the society it served, namely dominant positions in relation to gender, ethnicity and class, judicial
discretion generally employed conservative constructions that privileged middle-class Pakeha males. The male-dominated and middle-class profession reinforced
conservative discourses that shaped interpretations of the legal construction of cruelty.
Gender discourses were especially influential in shaping judges’ and magistrates’
perceptions of women petitioners. Legal literature abounded with constructions of
45 Powles, pp.648-50. 46 Luxford and Webb, p.23. 47
Smart v Smart 1962, NZLR 1963, p.310.
48 Biggs, p.58.
49Scorpio, ‘In Your Armchair and Mine. Sexual Discrimination?’, NZLJ, no.5, 5 March 1966, p.117. 50B.S. Barry, ‘Introduction and Discussion’, NZLJ, no.10, 3 June 1969, p.344.
women that undermined their credibility.51 Some of these were satirical, but these also
relied on “commonsense” to be thought humorous. The male ethos shared by the profession had implications for how judges and magistrates might perceive women petitioners. Like police practice, gender discoursesembedded in judicial responses
reproduced stereotypes of female behaviour such as “asking for it” or dishonesty, that
shaped judgement of guilt or innocence, blame and responsibility.
Gender discourses that positioned women as the weaker sex and in need of protection
supported women’s claims of cruelty, but this was dependent on a woman appearing
weak. Putting up with cruelty or bearing it stoically could undermine a woman’s claim. In one New Zealand Court of Appeal case, it was argued that because the wife had previously returned to her husband on two occasions for the sake of the children,
‘she could not have felt lifewas utterly unbearable with the husband’.52
Provocation had long been considered a defence to accusations of cruelty. Although
shifts in gender discourses meant that some once “reasonable” demands made by husbands were now thought “unreasonable”, the court would inquire whether the conduct of the wife was unreasonable in the circumstances, irrespective of the
husband’s demands.53A study of English matrimonial law concluded that ‘except
with regard to those acts which are so severe that no degree of provocation can excuse them, conduct cannot be complained of when it results from normal retaliation to
unjustifiable actions’.54
This provided opportunity for both sexes, but discursive supports for the preservation of marriage and the responsibility of wives to sustain marriages meant that provocation was more likely to support male privilege. One
female lawyer said that ‘some wives very definitely provoke the assault by an unreasonable or relentless attitude’.55The discursive construction of “nagging” was
particularly powerful. In the English case Douglas v Douglas 1958, it was held that words could justify provocation.56 However, the violence had to be proportional to the
provocation. While a wife’s adultery could excuse a husband’s conduct, it did not
51 My reading of the NZLJ in this time period. 52Spencer v Relph 1969, NZLR 1969, p.717. 53
Biggs, pp.146-7.
54 Ibid., p.149.
55A woman lawyer, ‘Wife-bashing’, in Phoebe Meikle, ed., United Women’s Convention 1975, Wellington, United Women’s Convention, 1975, p.51.
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justify a savage beating.57 As discussed in previous chapters, beliefs around
provocation could distort and redefine women’s fighting back.
Gender discourses that positioned women as dishonest or cunning were evident in a New Zealand case in which a magistrate had criticized the wife’s evidence for
exaggerating.58These beliefs had wide circulation. An English legal academic said ‘it is common practice to find that a wife who has fallen out with her husband drags up all matters of abnormal sexual practices against her husband, when at the time she
was a willing party’.59
Another legal academic said in reference to both parties that
events are ‘always exaggerated in aspect’.60
This construction was more likely to disadvantage women because most complainants were women. Constructions of
women as irrational shaped responses to women’s “reasonable” fear of danger. It was held that such fear ‘must not be an apprehension merely from an exquisite and
diseased sensibility of mind’, that is not irrational.61
This was difficult to prove without corroboration.
Once again, class discourses were a powerful influence on judicial responses. Middle and upper-class spouses were less likely than lower socio-economic ones to petition for separation orders in New Zealand, reinforcing the belief that cruelty was a preserve of a particular class. Class discourses contested with those of gender and
made it difficult for some women to claim to be “victims”. Historically the law
recognized that there were different classes in society, but the distinction had lessened over time.62However, discourses that accepted a certain amount of “rough and
tumble” and constructed it as normal and a sign of spousal affection were in
circulation in the 1960s. An English legal academic said that, ‘there are some people who regard horseplay as a natural part of married life and some wives who regard an
occasional thrashing as a sign of their husband’s affection’.63
A New Zealand
marriage guidance counsellor who worked in the 1970s said that some women clients
57 English judgments cit., ibid., p.231.
58 Reported in McNally v McNally 1960, NZLR 1960, p.965. 59
Rosen, p.231.
60 Biggs, p.3.
61 Lord Stowell cit., Rosen, p.194. 62 Rosen, p.228.
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told him ‘if he beats me he must love me’.64 Class discourses probably persisted in
interpreting “some people” and subtly shaped newer discourses.