Discourses of punishment, rehabilitation and victimhood shaped the court’s treatment
of offenders and had particular consequences for victims of domestic assaults. From
9 Home and Family Society (HFS) records, formerly known as the Society for the Protection of Home
and Family, Dunedin branch, newspaper clipping, Client case files 1970-1985, AG-647-165R, Hocken Library (HL), Dunedin.
10
1961 to 1968 under the partnership of Minister of Justice Ralph Hanan and Secretary of Justice John Robson, there was a shift in penal policy from a preoccupation with the punishment of offenders to a focus on their re-education and rehabilitation. In the 1950s under Secretary of Justice Sam Barnett, probation had been extensively
developed and fining had been encouraged as alternatives to short-term custodial sentences.11 The numbers of full-time probation officers rose from 30 in 1955 to 90 in 1964.12 The 1962 Criminal Justice Act provided for periodic detention, a requirement to work for the community under supervision, to be imposed only when the offence was punishable by imprisonment.13 In 1964 five guiding principles were announced that remained influential through to the early 1980s. These were directed at diverting young people from crime, removing offenders from the community only as a last resort, and towards rehabilitation, re-education and resettlement of prisoners.14 Ralph
Hanan was influenced by the ideas of Earl Warren, which insisted on the ‘re- education and re-generation of offenders’ because ‘more than 95 per cent of all
convicted offenders were ultimately released’.15
Hanan claimed that Warren, as
Governor of California, had made California ‘one of the world’s leading jurisdictions
in penal thought and practice’.16
Material and discursive changes propelled and sustained the shift. Post-war affluence had not removed crime, but served to weaken the view that crime was a product of poverty;17 an upsurge in youth offending presented new challenges and existing methods were proving ineffective;18 and emerging discourses around victimhood were gaining currency.19 Changing discourses that located human conduct in social
circumstances shaped a new construction of crime as an outcome of social sickness.20
11 Penal Policy Review Committee, Report of the Penal Policy Review Committee, Wellington:
Government Printer, 1982, p.17.
12 Department of Justice, Crime and the Community. A Survey of Penal Policy in New Zealand,
Wellington: Government Printer, 1964, p.41.
13 Penal Policy Review Committee, p.24. 14 Ibid., p.19.
15Earl Warren cited by Ralph Hanan in ‘Foreword’, Department of Justice; Warren was appointed to
the USA Supreme Court in 1953. He was known for his strong commitment to the principle of equality.
His contribution to racial equality stands as a testament to his leadership, ‘The Oyez Project, Justice Earl Warren’. Retrieved December 2010 from http://www.oyez.org/justices/earl_warren.
16 Ralph Hanan cit., ‘Foreword’, Department of Justice. 17
Ibid., p.13.
18 Ibid., p.17. 19 Ibid., p.24.
20 Discourses constructing human conduct as an outcome of social circumstances are explored further
An offender became a byproduct of his childhood, which made prevention the preferred strategy to fulfil the primary purpose of justice, namely the protection of society.21 With an increased concern for the young offender, the home and schools came under scrutiny. Because a first offence was regarded as a social problem, the community had to accept responsibility.22‘Broken homes’ characterized by marital separations, desertions and divorce were thought to produce juvenile delinquency and adult offenders, thus the preservation of the family became an important strategy in combating crime.23 The first reform penal policy of a list of 18 in a 1964 Department
of Justice publication was ‘a considerable expansion of marriage counselling and
premarital education, aimed at reducing the number of broken marriages and
encouraging normal, happy family life’.24
Imprisonment was an unattractive option
because it threatened marriages; the husband was exposed to the ‘debasing influence of the prison’, while his wife may have sought ‘illicit comfort’ producing the very ‘soil and climate for more delinquency and immorality to flourish’.25
It was also
acknowledged that ‘if the home broke up, the man inside [in jail] was difficult to
handle, and having nothing to lose when he came out, became a recidivist’.26 Medical discourses too were significant in interpreting criminal behaviour, and
encouraged treatment and sympathy over punishment. Most criminals were thought to have psychiatric problems.27 The 1964 Department of Justice publication cited an English study, which described persistent offenders as ‘wretched, weedy, feeble,
incompetent creatures who need care as much as punishment’.28
This view also informed the 1966 Alcoholism and Drug Addiction Act. Alcoholism was more like a disease than drunkenness (which was an offence). This view was indicated in Monty
Holcroft’s editorial that claimed alcoholics ‘are no weaker than the diabetic; the alcohol is merely a precipitating factor, as with sugar in diabetes’.29
Economic
21 Department of Justice, p.14.
22 Reported in Penal Policy Review Committee, p.19. 23 Department of Justice, p.54.
24
Ibid., p.104.
25 Ibid., p.25.
26An official of the Prisoners’ Aid and Rehabilitation Society cit., ‘Jailed Married Men are Costly’,
Truth, 5 July 1966, p.13.
27
Psychological grouping was thought a useful way to categorize offenders, ibid., p.36; an English inquiry into 11 cases of improper conduct concluded that all but one had a medical element and eight had psychiatric aspects, Department of Justice, p.60.
28 Cambridge Institute of Criminology cit., Department of Justice, p.106. 29Monty Holcroft , ‘The Road from Ruin’,
concerns reinforced the preference for prevention. Imprisonment was costly. In 1963 it cost almost 20 times more to keep a man in prison than to maintain the services of one probation officer. Probation was proven to be effective. Two random samples showed 60% of those completing it did not re-offend in the subsequent five years. In 1960 there were 2000 persons in prison, a figure expected to almost double by 1970.30 This situation called for a new approach.
The period prior to the 1960s was one in which there was a general lack of concern
for the victims of crime: ‘the emotional response to a crime was to get the criminal and punish him…the costs to the innocent were nobody’s concern’.31
During the 1960s, however, victimhood discourses were gaining currency. The 1961 Crimes Act increased penalties for offences against the person to a greater extent than those against property.32 The 1963 Criminal Injuries Compensation Act provided compensation for financial losses suffered in consequence of criminal injuries.33 However, initially the concern for the victim did not effect any apparent benefits for women victims of domestic assaults. In practice, it did not appear that such women received compensation.34 A concern with sexual crimes, especially against children, was a significant driver of heavier penalties; men’s violence against wives and partners was absent from debate around the 1961 Crimes Act.35 Discourses of the
family also informed the construction of a wife’s victimhood. Imprisoning a man
made his wife a victim because her dignity, respect and happiness suffered, and the children were vulnerable to taunts about a convicted father to the extent they might have to leave the district.36 However, the construction of an offender as a victim obscured the victimhood of a wife. The 1964 Department of Justice publication,
Crime and the Community, even asked if victims and offenders were ‘really separate
groups? The victim is the immediate victim in the case. But is the offender not himself the victim of his heredity, his upbringing, and all influences which are
30
Department of Justice, p.44.
31 Ibid. 32 Ibid., p.30.
33 Report on Crime in New Zealand, Appendices to the Journals of the House of Representatives
(AJHR), 1969, H.20c, p.15.
34 John Robson, Sacred Cows and Rogue Elephants, Wellington: Government Printing Office, 1982,
p.182.
35New Zealand Parliamentary Debates, 1961, my reading of the debates. 36
brought to bear by the community?’37
This position reduced male responsibility. Such an effect was indicated in Magistrate Trapski (later to be appointed a Family Court Judge in 1981) treating an assault on a former wife more leniently because of the
man’s pitiful childhood, which had been filled with emotional strife in foster homes
and orphanages. He said this altered what otherwise would have been regarded as a serious offence warranting imprisonment. In that case the offender had tried to strangle his wife and it had taken two men to pull him off her.38
Constructions of women’s moral superiority made women responsible for offenders’
rehabilitation. It was said that women offered a special socializing and rehabilitative quality. For this reason prison social workers and occupational therapists should be women.39In one case study, an offender’s rehabilitation was attributed largely to his
wife’s support.40
Thus the contradictory nature of discourses meant that a woman could simultaneously be positioned as a victim of an assault and a rescuer to her
assailant. The offender’s needs were privileged over those of his family so that, for example, a social worker’s role was to help the family ‘to accept back someone who
in their eyes seems to have betrayed them’.41
Discourses of victimhood, psychiatry and economics combined to impel the
Department of Justice to sponsor law change, which would ‘deal with an offender wherever possible without taking him out of the community’.42
In 1967 custodial sentences of less than six months were restricted to cases where, in the court’s opinion, there was no appropriate alternative to prison.43 The implications of a reliance on sanctions that did not remove an offender from his community were far- reaching for victims of domestic assault, but also ambivalent in effect. Imprisonment had both advantages and disadvantages. It gave a woman time to organize herself and get out before the offender came home, useful in cases of serious violence. Police sergeant Graham Duncan said that a lot of women moved town to get away and to start afresh in a location unknown to their partner. This sometimes meant shifting
37 Ibid., p.26.
38‘Court News in Brief’, Truth, 4 June 1974, p.7. 39
Department of Justice, p.62.
40 Ibid., p.78. 41 Ibid., p.62.
42Ralph Hanan cit., ‘Foreword’, Department of Justice. 43
from one end of the country to the other. Often all it did was put her safety at risk because the offender would come out angrier than ever. Some women were so
frightened of violence when the offender was released that they relocated to Australia, which was not an easy thing to do in the 1960s.44 In practice, imprisonment of men who assaulted women was less common than other penalties.45 Because it is unknown
how many of male assaults on females were “domestic”, it is not possible to say how many “domestic” offenders went to prison. However, Graham Duncan believes ‘there
had to be something very serious in the way of injuries for a judge to put someone
away’.46Court Registrar Robin O’Neill shares this view.47
Non-custodial sentences meant offenders could still provide for families, but there was no directed treatment for violence against a wife or partner or built-in protections
for victims when offenders were released into families. Fines beginning at ₤5, or
prohibition orders, which banned an offender from drinking, were common.48 Graham Duncan did not think these helped the victim. Prohibition and good behaviour bonds were ineffective and fining only took money out of the household, which created more stress and precipitated more violence.49 So penalizing offenders often did not
necessarily serve women’s interests. Magistrates were cognizant of this. One
magistrate told an offender that ‘it’s difficult to punish a man who beats his wife
because the punishment often rebounds on the wife’. He put the offender on probation
for two years.50
The ineffectiveness of penalties to target male violence against wives supported the preference for remedies under laws governing marriage, the primary one being the
1910 Destitute Persons Act. As the above magistrate continued, ‘but when a man beats his wife long enough, then he’s punished when she seeks a separation order and
44 Interview with Police Sergeant, Graham Duncan, 14 May 2008.
45 For example, sentencing statistics for male assault on a female or adult on a child heard in the Magistrate’s Court, 1966-1976, table 4.2, indicates that around one-fifth to almost one-third received prison sentences, Department of Justice, Justice Statistics 1966-1976, Wellington: Government Printer.
46 Interview with Graham Duncan, 14 May 2008. 47Interview with Robin O’Neill, 15 May 2008. 48
For example, sentencing statistics for male assault on a female or adult on a child heard in the
Magistrate’s Court, 1966-1976, table 4.2, fines and other orders made up over half of penalties, Department of Justice, Justice Statistics 1966-1976, Wellington: Government Printer.
49 Interview with Graham Duncan, 14 May 2008. 50
he has to pay maintenance’.51 Separation was a costly exercise for men found to be at fault for a marriage breakdown by the civil courts; men had to pay the full upkeep of wives and children and the wife and children could retain the use of the matrimonial home and its chattels. Under the 1910 Destitute Persons Act, a fine over ₤5 for an assault on a wife (later changed to $50) was a ground for a separation order (see Chapter 4).52 When a magistrate handed down such a fine it meant he considered the violence beyond what a wife might be expected to endure in a marriage. Sometimes magistrates made this explicit. One magistrate warned the offender that as a result of his conviction and fine, his wife was entitled to take steps to end her marriage.53