our idyllic world

niall thrupp

 
Niall.jpg

The cracks in New Zealand’s victim-oriented façade.

We can all imagine an ideal society. The perfect balance between moral standards and individual autonomy. An institutional system reformed and moulded to perfection.

Caught in this daydream, it is easy to forget that the humans who inhabit the system are merely animals. Humans both restrained and empowered by an ever-present system of law and culture.

Changing our society to eliminate sexual violence, moving us further towards that idyllic paradise, is not an easy task. We struggle to eliminate the vile attitudes that lead to sexual violence, while recovering from the mental and physical damage offenders leave in their wake.

Where to begin?

The root cause seems to lie in the way our legal system functions in respect of sexual violence. We focus on punishing the offender after the act, rather than attacking the root cause of the offending. It is naïve to hope that criminal penalties will ever stop sexual violence, as this assumes that the people committing the sexual violence are making rational decisions.

It is impossible to come to a rational, logical conclusion that whatever ‘benefit’ is gained by committing these crimes outweighs the hefty punishment that said actions will incur. Hence offenders must fall into two categories; those who believe they will get away with their actions, and those who do not make their actions rationally.

We masquerade solving the problem by introducing harsher punishments and widening the range of behaviours that are considered criminal. In reality, these steps merely serve as politically expedient ways to make it appear as though the issue is being addressed.

Indeed, this issue has been shoehorned into a system that was never intended to address it. The criminal system that we inherited from England was developed to deal with crimes such as murder, assault, and theft. These all naturally find success in an adversarial system with a theoretically impartial judge. Those accused of crimes are assumed innocent until proven guilty and the crown has the burden of probing offender guilt beyond reasonable doubt.

Unfortunately, this system is not as effective in cases of sexual violence, where the victims often want to move past the experience, rather than suffering through a protracted trial in the name of ‘justice’ which cannot rectify the harm done to them. So too can the burden of proof beyond a reasonable doubt cause issues when many cases boil down to the word of the victim against the accused offender.

Perhaps the most illustrative example of our legal system’s woeful ability to deal with sexual violence is the crime of rape, which until recently was not criminalised. Not because of the harm caused, but rather because it was seen to be damaging the property of a man.

We find no solace in the law. So instead, we must turn towards New Zealand culture. The culture which allows offenders to think they will be able to get away with their crimes and that makes it so that those acting irrationally are not dissuaded by empathy.

The focus of preventing sexual violence must be on the reprehensible harm the offender would cause to the victims, rather than the penalty the offender will suffer if they do commit the harm. The former is difficult to achieve in a reactive system which focuses on punishing actions after the fact, rather than preventing harm from being committed in the first place.

It should come as no surprise that New Zealand culture is unable to deal with sexual violence, helmed by a legal profession in which the culture thrives.

A recent survey of the New Zealand Criminal Bar Association[1] found that an astounding 88.1% of respondents had personally experienced or witnessed harassment or bullying behaviour. 64.7% of those who had experienced or witnessed harassment or bullying behaviour cited judges as the ones doing the behaviour.

Those in positions of authority and respect are abusing their status in despicable ways, no doubt leading their juniors to emulate them. This in turn perpetuates the cycle of harassment. Those running the system  - which punishes the worst of human nature and upholds what is just - are themselves exemplifying one of the greatest wrongs we face today.

Our legal profession should not be tolerating this culture where sexual harassment is an industry norm.[2] The legal system should be a paragon of justice and righteousness, but seemingly were anybody in the public to imitate the conduct of many legal professionals in relatively less surreptitious ways, they would find themselves before a court.

This is not the legal system that 21st century New Zealand deserves. But it is the one we are stuck with until serious reform happens. One must ask how much more damage we willing to cause to our reputation, how many more victims we’re willing to create, before we can start representing the values that our progenitors idealized.

 

[1] https://www.lawsociety.org.nz/news-and-communications/latest-news/news/criminal-bar-survey-shows-high-incidence-of-harassment

[2] https://www.stuff.co.nz/national/101863902/sexual-harassment-is-a-legal-industry-norm-former-lawyer-says