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Tony Robertson and victim invisibility in our criminal law

Tony Robertson and victim invisibility in our criminal law

I spent a little time last night reading through the transcript and decision of Tony Robertson’s 2006 trial for charges including abduction for the purpose of sexual connection. As a way to feel good about the human condition, I don’t recommend it. The unravelling toilet roll of Robertson’s lies is as awful as the eventual uncovering of what actually happened on the two days in December 2005 which culminated in him abducting a five-year old for obviously sexual purposes. Only by sheer luck and great intuitive policing was this little girl saved from a fate more serious than she had already endured. The man who rescued her quoted her as saying, once she was safe, “That man hurt my heart”. I can imagine my own five-year old girl saying exactly that kind of extraordinarily insightful yet breathtakingly simple thing in such a situation. This reading was all the more depressing, knowing how many years went by as Robertson continued to deny his culpability and shift blame on to any person within handy reach, and, ultimately, what he did to Blessie Gotingco.

Mentioning Blessie’s name reminds me of how almost impossible it is to involve the idea of the victim in the discussion of serious criminal liability as a fully realised person. I never knew Mrs Gotingco and somehow usual statements such as ‘my heart goes out to the family’ seem so inadequate. Nevertheless, ka nui te mihi ki a rātou o tēnei whānau kua pāngia e te pōautinitini.

Sometimes writers and programme makers can flesh out the victims of serious crime, allowing these people to at least have some degree of identity and personality that mere case reports can never achieve. But even so, except for the family, victims become easily simplified in the public eye; a kind of full stop in the account of somebody else’s life.

Garth McVicar was quite right when he said on breakfast TV on Wednesday morning that criminal justice system is criminal-centred. Those who suffer crime are not the system’s core concern, those individuals who create it are.

In saying that, victim consciousness has certainly increased within our criminal justice system. Mechanisms such as victim impact statements and victim notification processes under the Victims Rights Act 2002 are two examples that seek to enable victims to be factored into the operation of the system. Restorative justice has also developed greatly since the mid 1990s as a means of enabling victims to be involved in a face-to-face meeting with offenders as part of a process to somehow ameliorate the harm suffered from criminal offending, where appropriate. For very serous offending restorative justice will not often be preferred by victims. Nevertheless very recent amendments to the Sentencing Act 2002 have centralised restorative justice, by making it an ‘opt out’ process rather than ‘opt in’, and accompanied by an increased budget for restorative justice around the country.

There is great hope that restorative justice can lead to lower recidivism and better experiences for victims, although extensive evaluation of the success of restorative justice programmes in New Zealand is somewhat limited.

But none of these things change the fact that criminal liability in our system inevitably focuses on the actions and thoughts of the individual or individuals who cause harm to others. The ‘others’ in our system only figure in order to determine the nature of the harm they suffered.

I am always reminded of this fact when lecturing classes on criminal law. I did a lecture on culpable homicide the other day, talking about a case where a man had stabbed his pregnant partner and the unborn baby died as a result. I was using this case to illustrate the application of s159 of the Crimes Act 1961 (whereby a child can only be considered a human being once born, and the term ‘homicide’ cannot legally be applied to an unborn child killed in the womb).

Every class illustration like that is another moment in the parade of victims that underpin the development of our criminal law. The raped woman, the neglected child, the forgotten elderly mother, the mutilated man, the hurt, the wronged, the deceived, the killed, the hidden, the taken. In our general legal system criminal law students, teachers and practitioners are expected to wrench their analysis away from their feelings of sympathy in order to  look dispassionately at questions of criminal liability, or at matters of proportionate sentencing (for example). That’s a necessary legal skill, and we teach it with gusto from the beginning of a legal career: to separate ourselves from the legal problem. We are trained to maintain something of an operative fiction that we can truly separate our emotions, our prejudices and our own histories from a legal problem, even as it is the messiness and flawed, even corrupt humanity that creates that legal problem in the first place. And of course it is naive and ridiculous to somehow assume that the methods we teach at law-school are merely rational and effective and thus value-neutral. I am yet to come across any process or theory that is value-neutral.

Quite literally, the approach is necessary because this is the way the system is wired. Criminal legal liability in the Western legal system requires an individual or individuals to demonstrate some degree of fault that ties that very person to that very harm prohibited by the wording of the offence. (There is no crime in NZ except those written in statute). Just causing a serious harm to another person is not enough, even though the harm caused is what first appalls us in news reports, and in our general understanding of the world. Even killing someone may not be enough for one person to be punished.

For the offences that cause serious harm we generally need to prove the person charged DID the deed and that this person MEANT to do do it, or had a pretty clear understanding she could have caused the harm and barreled on regardless. And sometimes we hold people responsible for actions and harms they caused because they failed to live up to some kind of reasonable standard of behaviour.  None of this analysis pays any attention to the person or persons harmed. The victim exists only as proof that something bad has happened. The final link at the end of the causal chain.

This effective victim exclusion was not inevitable, but has developed after centuries of legal development. Where once crime had  been a matter of private law (of the ‘welfare of individuals’, in Roman law, for example) between the offender and the victim, only mediated by the State/courts, modern criminal law as we now understand it eventually shifted into the public realm entirely.

At that point crime ceased to be a private matter; it became public, a matter of concern primarily of the State. Crimes are committed against the State; and only the State, not wronged families, have the right to punish crimes. The victim and the victim’s family were effectively and progressively excluded from the process of determining liability and punishment.  As Markus Dubber identifies:

In this view of criminal law, the state is the ultimate victim of crime; the most serious— purest—crimes are offenses against the state; all other offenses are watered down versions (splinters..) of the ultimate offense of interfering with the authority of the state, of acting beyond one’s inferior status as a member of the state household; these inferior offenses are indirect state offenses insofar as they compromise the state’s ability to govern, for instance, by depriving the state of a resource (human or otherwise)18 or through disobedience of a state command…

Other legal systems even today don’t necessarily follow this template, and criminal law can still be considered a private concern, as is the case in French criminal law, for example.

However it is necessary to perhaps look further afield for examples of legal systems whereby the victims, the victims’ families as well as the families of the offender can remain connected in determining criminal responsibility and punishment. For example the practice of Qisas in Iranian law involved, for certain offences, a retributive but strictly proportional punishment based upon the personal harm caused to the victim. This is the kind of punishment known as ‘an eye for an eye’. The victim’s family can, in certain cases exhibit mercy and require monetary compensation instead.

There must be less harmful ways of enabling victims in our legal system to have a greater centrality, and we don’t have to do what we have always done. How we can achieve that requires imagination of what a just victim-centred system might look like that avoids the risk of victim-focused retributive barbarity on the one hand and victim-exclusion on the other. Can it be possible to explore ideas of collective, rather than strictly individual criminal responsibility? Restorative justice is the best shot we have come up with so far. What else can we do?

“Institutional racism”. Warning: label may smudge with over-use.

Today we heard, courtesy of Radio New Zealand, that a UN delegation visiting NZ prisons has urged our government to consider the extent to which our system creates systemic bias against Māori (

The problem with a phrase like ‘institutional racism’ (the term used most often to describe this notion of systemic bias) is that it creates a distance between people and the problem. The problem is well documented. We all know that Māori are over-represented at all stages of the criminal justice system, from arrests to court appearances, to sentencing, to prison population. .

Do these statistics really point to a systemic problem? Commentators tend to fall into two kinds of camps. There are those who point to the monolithic nature of the system, the racism of Pākehā, lack of Māori values evident in the system, the history of colonialism and the breakdown of Māori legal institutions, the displacement of Māori autonomy over their own lives and so on as setting the scene for, and justifying the name of, institutional racism. Māori have no investment in this system, and until they do there will be no substantive change. A kind of systemic revolution is necessary to roll back the stats (Moana Jackson is probably still the leading commentator in this camp, as discussed in the JustSpeak paper  )

The other camp tends to focus less on the racism and culpability of Pākehā, and the system itself, instead pointing to sociological/individual explanations that underpin Māori over representation. Māori over-representation occurs by and large because Māori offend more. Identify the drivers of Māori crime, address those, and the problem will sort itself out. The system is not to blame, as far as any system can be, the criminal justice system is neutral, and upholds and reflects the primary values of the community (including Māori) appropriately. Sure there could be changes to make the system more ‘Māori friendly’, but the solutions lie within Māori decisionmaking, Māori families, Māori individuals. Criminologist Greg Newbold represents this perspective to some degree, seen here in conversation with Moana Jackson on Native Affairs: Another quite strident view from this camp can be seen here:

My own perspective falls somewhere in between the two camps. In my view the term ‘institutional racism’ has become a kind of label that cloaks the nature of what really goes on in the criminal justice system, and within society more generally. The nature of what really goes on cannot be divorced from the individuals that make up the system. This system is a human artifact and cannot be value free. The law is not neutral, we made it, and we infused it, and the system that upholds it, with values.

I remember hearing one of New Zealand’s high profile judges speaking frankly about the dilemmas he is confronted with when sitting on the bench when Māori offenders come before him. He acknowledged that a decision about giving bail, for example, could go differently depending on whether the offender before him was Māori or not, NOT because of ethnicity, but because almost inevitably the Māori offenders had less stable home circumstances and less support to help them keep to their bail conditions, were more likely to breach, and more likely to end up back in court for the breach. Therefore, such Māori offenders might be more likely to receive bail than their Pākehā counterparts who usually had more obvious home support and more stable home circumstances. What was he, as a judge, to do? Grant bail, and see that offender back in front of him for breach, almost inevitably, lengthening the already negative contact between that offender and the system (including the police), usually resulting in jail anyway, or refuse it, thereby expediting the CJ process but sending the offender to jail more quickly (if the court process ended up in a finding of guilt). Which values does he call upon in the making of that decision? As he observed (and I’m paraphrasing), “if these are the moments of discretionary power I have as a judge, what about all those other moments before the offender even gets to me?” Indeed. Social workers, case workers, teachers, parents, family members, police, probation officers, lawyers, all of them will have had moments of discretion they exercised that impact upon our theoretical Māori individual as she progresses through life, let alone the criminal justice system. All of the ‘discretionary moments’ intersect with the decisions made by this person; what are the nature of the choices she makes in her life? How might she have been ushered into making those decisions, some of which could see her enter into the system? 

Māori are agents, not just victims, and a term like ‘institutional racism’ does two things, it denies Māori agency, but it also points to the sum total of those discretionary moments exercised by all those who have decision-making power within the Criminal Justice System. Perhaps the first step to undermining the phenomenon of systemic or institutional racism, or just over-representation of Māori within that system, is to ask those individuals what decisions they made today. And those same questions should also be asked of the whānau and friends. Ultimately, I think we are all collectively responsible for Māori over-representation in the criminal justice system.

 As for a remedy? Well, I think Jackson is partly right. Māori must have decision-making power over Māori lives, and they must also see themselves reflected in the systems of this country in a way that normalises rather than demonises them. So structural change can achieve some of that. And the capacity of Māori to create and implement useful dispute resolution processes, perhaps using the marae more often, is exciting, and growing recognition of Māori customary law and processes offers fantastic room for growth. There are also international developments in sentencing law that New Zealand could look to in the recognition of culture and background in the sentencing process. We already have this capacity in NZ law (by virtue of ss8 and 27 of the Sentencing Act 2002), the Courts have basically declined to use it to address disproportionality in similar ways that have been done in Canada, for example. (see the Court of Appeal decision in the case of Mika v R, and some interesting commentary here:

But I also think that the focus on the institution cannot be at the expense of the focus we place upon ourselves. The battle to stop our young people going to jail starts at home in the everyday discretionary decisions we make as parents, whāea, mātua, tuakana, teina, and finally, as mokopuna ourselves, to live a life outside the criminal justice  institution and well away from any of its tatty labels.

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