Police have important additional powers but mustn’t abuse them

Open Letter to The NZ Police

From: Catriona MacLennan

Dear New Zealand Police, Aotearoa has not given you a blank cheque for your response to Covid-19.

These are unprecedented times and the government on 25 March made a State of National Emergency declaration – only the second time in New Zealand history that this has been done.

Authorities now have the power to close roads and public places; regulate land, water and air traffic; evacuate any premises; and bar people or vehicles from any premises or places.

It is hard to get our heads around the extent of these powers. They are not something most New Zealanders have ever imagined.

Despite that, most Kiwis understand and accept the decisions the government has made. An overwhelming majority of the population has accepted massive restrictions on daily life and the sweeping away of civil liberties and freedoms.

You, the New Zealand police, will be the most visible figures exercising and enforcing the new emergency powers. Police Commissioner Mike Bush explained this by saying that people would be greeted by the “friendly face” of the police during the four-week lockdown.

But, already, there is cause for concern.

A number of instances of what appears to have been heavy-handedness on your part have been reported and there also appears to be a lack of consistency in the way you are exercising your powers.

New Zealanders realise that it is extremely frustrating for you to deal with numerous people who are flouting the lockdown and refusing to comply. But it is not legal for you to come down hard on people simply because you are annoyed that enforcing the lockdown places your own health at risk.

Similarly, it is understandable that Bush said it would pay for essential workers to carry work identity cards or letters from their employers.

That makes it quick and easy for the police to see that someone should be out and about. However, you need to remember that there is no legal obligation for any New Zealander to carry such information. That means that people cannot be forced to carry such documents and it is not an offence to fail to do so.

You and other agencies need to swiftly standardise your advice about the fine detail of when people can and cannot leave their homes. Your bosses must then ensure that all staff on the ground are clear about the rules.

You need to remember that you can only police the country effectively with the consent of the public.

Contradictory messages and over-the-top enforcement will rapidly erode public goodwill and result in increasing failure to comply.

In turn, that will raise the spectre of order starting to break down. New Zealand does not want to go there.

You need look no further than the six-month trial of armed police patrols, which began in Counties Manukau, Canterbury and the Waikato on 28 October to understand why some New Zealanders are worried about the way you are exercising the pandemic emergency powers. When the pilot was announced, Bush told the public that the changed operating environment since the Canterbury mosque shootings, the impact of methamphetamine-fuelled offending and the growth in organised crime were the reasons for establishing the rapid reaction armed teams.

But figures released in early March 2020 showed that the units were deployed 75 times a day in their first five weeks. That is a staggering figure and means the teams were called out at 50 times the rate that Armed Offenders Squads were last year.

It is extremely hard to credit that this is necessary.

The public was accordingly already anxious about mission creep in your use of armed teams. The sudden conferral of wide-ranging new powers on officers arising from Covid-19 exacerbates that worry.

For Māori, the concern is even greater as they are subjected to more stops, arrests, detention and charges in normal times than other New Zealanders are.

You, the police, are there to uphold the law. New Zealand is a democracy. It is not a police state.

We, the public, will obey the new laws. But we will also be policing your use of them.

https://www.rnz.co.nz/news/covid-19/412906/an-open-letter-to-the-police-in-a-time-of-covid-19

Law Society drops action against Catriona MacLennan

The Law Society advised today that they would be taking no further action against lawyer Catriona MacLennan, who criticised a judge for discharging a man guilty of violence, saying it was an understandable reaction.


Standards Committee issues decision on lawyer who said Judge wasn’t fit to sit on the bench

A Lawyers Standards Committee has decided to take no further action against a lawyer who said it was inappropriate for a District Court Judge to continue to serve on the bench.

Auckland Barrister, Catriona MacLennan’s statements were the subject of an investigation following her public criticism of Judge John Brandts-Giesen.

Judge Brandts-Giesen discharged a Queenstown man without conviction in a domestic violence case last year. The man had assaulted his wife, a male friend and his daughter.

The judge said, ‘This is a situation that does your wife no credit and does the [male] no credit’ and ‘there would be many people who would have done exactly what you did, even though it may be against the law to do so.’

A member of the public complained about Ms MacLennan’s criticism of the judge, prompting the committee to investigate.

Acting Executive Director of the New Zealand Law Society Mary Ollivier says the Standards Committee considered the explanation Ms MacLennan provided for her comments.

“It accepted that lawyers can express their views on the performance of judges but that those comments must be considered and not cross a line that could cause the public to lose confidence in the role of the judiciary and the role judges play in the administration of justice. The committee did not consider that Ms MacLennan’s comments had crossed that line. Her experience as an advocate for victims of domestic violence and the sentiment in which the comments were made were factors in the decision,” Mrs Ollivier says.

Mrs Ollivier says the high level of interest in this investigation by the public and the profession warranted the rare move of releasing the full decision by the Standards Committee.


Newsroom covers McLennan’s response in Law Society ends inquiry over judge criticism

MacLennan wrote about the complaint for Newsroom in a powerful defence of her right to speak out.

“I am pleased the investigation has been ended. It should never have been started.

“I will be writing to Justice Minister Andrew Little to put my concerns before him and ask him to take action. The fact that a Law Society body would fail to follow natural justice and other basic principles of our legal system is deeply concerning.

“I am also alarmed that the Law Society appears to place so little importance on freedom of speech, which is guaranteed to every New Zealander under section 14 of the New Zealand Bill of Rights Act 1990.

“The case highlights the vital role of the media. I could not have fought the investigation without making it public and having the media scrutinising what was happening.

“My view is that the role of lawyers is to stand up for the vulnerable and disadvantaged and to speak out about injustice. My opinion is that the Law Society itself should have spoken publicly to criticise Judge Brandts-Giesen’s remarks and his decision to grant a discharge without conviction.

“Upholding the rule of law and the dignity of the judiciary does not mean unquestioningly supporting the judiciary even when they err.”

Newsroom also has comments from former Supreme Court judge Sir Edmund (Ted) Thomas…

…the decision completely vindicates MacLennan “but it is otherwise a treatise in self-justification”.

“The committee seeks to justify a decision that should never have been made in the first place. The committee advances seven reasons for taking no further action. All those reasons would have been known to, or easily ascertained by, the committee at the time it launched its own complaint.”

Justice Thomas said the committee did not express regret “let alone proffer an apology” for the decision. “Yet it must know that an ‘own-complaint’ can have a devastating impact on the recipient.”

He said the MacLennan comments had been temperate, measured and responsible and the committee had been unduly precious.

“With respect, the committee needs training in the meaning of free speech.”

He planned to write to the Law Society president and council urging a review of the membership and procedures of its standards committee and whether it accorded with natural justice.

“Domestic violence is a serious problem in New Zealand. Ms MacLennan served the public interest in taking the Judge to task. It is the committee that is out of step. This is confirmed by the massive support Ms MacLennan has received from the profession.”

Andrew Geddis (@acgeddis):

Having now seen the Law Society’s National Standards Committee’s (NSC’s) report in full, here’s what I think happened.

Catriona made her remarks about the judge, which (most) everyone now says are OK (including the NSC). But some member of the public didn’t like them – so they complained to the Law Society, alleging the remarks called the justice system and the court into disrepute.

The NSC asked Catriona for a response, so she told it that the complainant did not have the legislatively required personal connection to what she said. The NSC agreed with this, so dismissed the member of the public’s complaint as they had no standing to bring it.

BUT, the NSC then decided to hold an inquiry into Catriona’s remarks on its “own motion” (i.e. off its own bat). Why? If we’re charitable, it wanted to avoid a lawyer escaping a breach of standards finding on what could be described as a technicality.

BUT, should we be charitable? The NSC can only commence an “own motion” investigation regarding “any act, omission, allegation, practice, or other matter that appears to indicate that there may have been misconduct or unsatisfactory conduct on the part of a practitioner.”

Could Catriona’s criticism of the judge in question, even given that it involved saying the judge was not fit to continue sitting, be thought to reach that level of seriousness?

Of course, the NSC stands by its decision, saying that it has a job to help protect the dignity of the judiciary from being undermined by lawyers because judges cannot protect itself (I guess contempt of court isn’t a thing any more?)

It also takes a snide swipe at Catriona, suggesting: “Had [she] provided the NSC with the contents of her written submissions dated 11 April 2018 in response to the NSC’s letter of 7 March 2018, it is likely that the NSC would not have set this matter down for a hearing.”

But given that Catriona’s submissions didn’t really say anything more than “the judge’s comments were manifestly terrible given NZ’s record of domestic violence and so he shouldn’t be a judge”, it’s not clear to me what they told the NSC that it didn’t already know.

SO … overall conclusion? The NSC overreached here, taking on an issue that it really ought to have left alone. Having done so, it’s now scrabbling to justify its initial decision to investigate given that everyone says there’s no way it ever could have punished Catriona.

 

 

 

The heart of Catriona MacLennan criticism – “freedom of speech itself”

At the heart of all three Judgments was what Lord Denning said was “freedom of speech itself” by

This is also at the heart of criticism of a judge by  lawyer Catriona MacLennan, and an inquiry into that by the National Standards Committee of the New Zealand Law Society into her criticism.

James Farmer Q.C. from Auckland does an occasional ‘legal commentary’. He has written on lawyers criticising judges, on MacLennan’s criticism of a judge who discharged a man who had assaulted his wife, daughter and (probably ex) friend and excused his violent reaction after finding out about an extra-marital relationship, and on the inquiry.

There is some useful context given here – Q+A: Lawyer Catriona MacLennan interviewed

In that MacLennan makes a number of good points. In particular:

‘I’ve been saying for a long time that I think judges need a lot more training in domestic violence, and this Court of Appeal decision last year certainly confirmed what I and other domestic violence advocates have been saying, that Domestic Violence Act is excellent law; it’s not being interpreted and applied properly by judges.’

However she made one contentious claim:

The other thing that we need is for male lawyers to speak out. There’s been, pretty much, a deafening silence from them. Sexual assault and sexual harassment are not women’s issues. It’s men that are the perpetrators, and we need male lawyers to step up and engage with this, and they need to make it culturally unacceptable to behave like that.

Males are the worse perpetrators, but not the only ones at fault in domestic violence, especially when verbal violence and abuse is taken into account. And while there may not have been many male lawyers speaking out Farmer Q.C. and others have.

First in CRITICISING JUDGES James farmer Q.C. summarises MacLennan:

Catriona MacLennan is an Auckand barrister and journalist who has distinguished herself for many years now by her perceptive articles in both legal and news media publications.  She has made a name for herself for her authoritative writings on family violence and related issues and is the spokesperson for the Auckland Coalition for the Safety of Women and Children.  She presumably knows quite a lot about the evils of domestic violence.  We need more lawyers like her willing to use the media to draw attention to deficiencies in the legal system and to expose injustice wherever it occurs.

Next he summarises the case and the initial criticism.

Recently, she wrote vigorously in her condemnation of a District Court Judge who discharged a man without conviction who had been charged with assaulting his wife and daughter quite viciously and also a friend who had exchanged texts with his wife declaring their love for each other.  Of course, one would not have expected the defendant to have learned that last fact with equanimity.  But the Judge went somewhat further and, in discharging him, said this:

Really, this is a situation that does your wife no credit and does [the friend] no credit.  There would be many people who would have done exactly what you did, even though it may be against the law to do so.  I consider that the consequences of a conviction are out of all proportion to what happened on this occasion.

Ms MacLennan’s commented vigorously on this to the NZ Herald, using strong language (“abhorrent”), said that the Judge displayed “a complete lack of understanding of domestic violence” and that such judicial attitudes and the lack of penalty “are part of the reason why women do not come forward to report domestic violence”.  She also said:

It is inappropriate for [the Judge] to continue sitting on the bench.

That certainly didn’t sound like an unreasonable opinion.  Making gratuitous comments that could be interpreted by many as condonation or even approval of domestic violence if the offender was aggrieved does not seem to possess a judicial character.  Nor does a discharge without conviction – reversed as it turned out on appeal by the Police – in those circumstances appear as a prime illustration of upholding the law.

Others might argue that the impropriety of the Judge’s comments did not warrant his resignation but certainly a good telling off and compulsory re-education on the evils of domestic violence.

So far so good.

But “Now we venture into fantasy land, a land where freedom of speech and observance of judicial process apparently do not exist.”

Following the publication of Ms MacLennan’s comments, the National Standards Committee of the New Zealand Law Society, which Society exercises statutory disciplinary powers (including the power to censure, the power to fine and the power to strike off), initiated of its own motion an investigation into her conduct in making those comments.  It has asked her to address a number of questions upon which they would rule on the papers i.e. without a hearing and, presumably without a right to have counsel address the Committee on her behalf or without the right for her to state in person her position.  Truly.

Poor legal process.

Those questions included:

(1) whether she undermined the dignity of the Judiciary?

(2) whether she failed to comply with a lawyer’s fundamental obligation to uphold the rule of law and facilitate the administration of justice in New Zealand?

In case, you think you may have misread this, these questions were addressed to Ms MacLennan, not to the District Court Judge.

He points out another male lawyer who has condemned the Law Society:

This turn of events has attracted strong condemnation of the National Standards Committee.  First, there was a gutsy letter written to the President of the New Zealand Law Society by a young Auckland barrister, Benedict Tompkins, who is himself the son of a District Court Judge and the grandson of a former High Court Judge and who is currently practising at the English Bar.

He deplored the actions of the Committee, called for the removal of its members by the New Zealand Law Society and then expressly adopted as his own Ms MacLennan’s views. He also referred to a recent instance in England where senior members of the Bar (including Lord Pannick QC) had publicly called for the resignation of a High Court Judge, without facing the wrath of the equivalent of our National Standards Committee.

Mr Tompkins also advised that his letter and, within it, his alignment with Ms MacLennan’s opinion, was being distributed by him to the media, to the legal profession and on social media.  That might be called throwing down the gauntlet.

It would have been good if MacLennan had acknowledged this support. However there has been more open support from female lawyers.

That has been followed by a letter from the Auckland Women Lawyers’ Association to the President of the New Zealand Law Society along the same lines.  Its letter affirmed Ms MacLennan’s qualifications to make the comments that she did.  It went on to condemn the fact that the Committee had determined that its hearing would be on the papers and characterised this as raising “serious questions in relation to due process and natural justice”.   Indeed.

I was myself more than troubled by all this.

Farmer Q.C. then gets very lawyery, quoting from a London case in that got to the Court of Appeal, which was strongly criticised by prominent Member of Parliament and Queen’s Counsel, the Rt. Hon. Quintin Hogg, who wrote a very forceful article in Punch.

The original plaintiff then moved the Court of Appeal for an order that Mr Hogg was guilty of contempt of court.

They dismissed the application…

At the heart of all three Judgments was what Lord Denning said was “freedom of speech itself”:

It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest.   Those who comment can deal faithfully with all that is done in a court of justice.  They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not….

So it comes to this: Mr Quintin Hogg has criticised the court, but in so doing he is exercising his undoubted right.  The article contains an error, no doubt, but errors do not make it a contempt of court.  We must uphold his right to the uttermost.

Salmon LJ began his Judgment thus:

The authority and reputation of our courts are not so frail that their judgments are not to be shielded from criticism, even from the criticism of Mr Quintin Hogg….

It is the inalienable right of everyone to comment fairly upon any matter of public importance.  This right is one of the pillars of individual liberty – freedom of speech, which our courts have always unfailing upheld.

And Edmund Davies LJ:

The right to fair criticism is part of the birthright of all subjects of Her Majesty.  Though it has its boundaries, that right covers a wide expanse, and its curtailment must be jealously guarded against.  It applies to the judgments of the courts as to all other topics of public importance.

All three Judges expressed the view that criticism of the Courts’ Judgments should be accurate and fair because Judges normally do not have the ability to respond publicly.

But I think the implication here is that MacLennan’s criticism was accurate and fair enough.

It is to be earnestly hoped that the New Zealand Law Society will quickly rein in its National Standards Committee.

7 May 2018

James Farmer QC

Where the National Standards Committee inquiry into MacLennan’s criticism will be watched with interest by the legal profession, and by those with an interest in how justice is done in domestic violence cases.

The heart of this action by the Committee may be free speech itself, but dealing with a society that remains rife with violence is also a big deal.

Men are the main perpetrators (that shouldn’t diminish the problems with female instigated violence), and male judges have in part allowed a culture of violence to persist. The District Court Judge was symbolic of this, and deserved strong and fair criticism from MacLennan and the many others who spoke up condemning the outcome of the case.

It was good to see the Police also in effect criticise the judge in the means available to them, by appealing. They succeeded in overturning a poor judicial decision and unfortunate and unwise comments by the judge.

Q&A – Catriona MacLennan facing Law Society inquiry

This should be interesting, but with a Law Society inquiry into Catriona MacLennan’s criticism of a judge’s decision (that was subsequently overturned on appeal) it may limit what she can say about that.

Some background from Newsroom – Lawyer: I will not be silenced

Under inquiry by the Law Society for criticising a male judge’s comments on a domestic violence case, Catriona MacLennan wonders when the targeting of women in the law will ever stop.

Last December, The New Zealand Herald asked me to comment on a Queenstown case in which a judge had granted a discharge without conviction to a man who had assaulted his wife, a male friend and his daughter.

The judge said that “Really, this is a situation that does your wife no credit and does the [male] no credit” and “There would be many people who would have done exactly what you did, even though it may be against the law to do so.”

The judge’s comments and sentence in my experience are almost unprecedented.

The nearest analogy I can think of is the public criticism following the exculpatory remarks made by the sentencing judge in the case of David Minnitt, who killed his wife Leigh in 1980 and said afterwards he had been provoked by her criticism of his sexual prowess.

I told the Herald that I thought the Queenstown judge’s comments and sentence displayed a complete lack of understanding of domestic violence, victim blamed, and minimised assaults on three people.

I said that it was inappropriate that a discharge without conviction had been granted, and the result in the case was out of line with other decisions.

I also said that it was the role of the judiciary to uphold the law and foster respect for the law. Stating that “many people would have done exactly what you did” condones and excuses domestic violence. I do not consider it appropriate for a judge publicly to condone breaking the law.

I said I did not believe that the judge should continue sitting on the Bench.

This is the first time I have said that in 21 years of commentary on domestic violence.

The Police subsequently reviewed the judge’s decision and referred the matter to the Crown to consider an appeal against the discharge without conviction.
That appeal was granted by the High Court in March 2018.

The Chief District Court Judge, the Police, the Crown and the High Court accordingly all agreed that the Queenstown judge’s comments and/or sentence were inappropriate.

On March 7, I received a letter from the National Standards Committee of the Law Society, advising me that the committee had commenced an investigation against me in relation to the comments I made to the Herald.

Whether I failed to comply with a lawyer’s fundamental obligation to uphold the rule of law and facilitate the administration of justice in New Zealand?

The National Standards Committee asked me to provide a response to its questions. The committee has decided to deal with the matter on the papers, rather than holding a hearing. It can decide to make a finding of unsatisfactory conduct and impose a penalty; or escalate the matter to the Lawyers and Conveyancers Disciplinary Tribunal by laying a charge against me.

The penalties the committee can impose include censuring me; ordering me to apologise; fining me up to $15,000; and ordering me to pay the costs of the committee’s investigation.

My comments to the Herald were based on my 21 years’ experience relating to domestic violence: both as a lawyer in the Family and Criminal Courts, and as a researcher and anti-domestic violence advocate.

I made my remarks based on this experience and I still believe my comments.

Domestic violence victims, in particular, are almost never in a position to speak out about their experiences. As has been widely reported, Aotearoa has the highest reported rate of intimate partner violence in the developed world.

Neither the law society nor anyone else will ever silence me about domestic violence – or about any of my other causes.

If I have to choose between being a lawyer and freedom of speech, I will not hesitate to choose my freedom of speech.

She has chosen to make a stand. Time will tell how the Law Society deals with this, but in the meantime her interview should be interesting.

More on ‘ NZ’s failure on sexual misconduct’

I have already commented on a Spinoff ‘Opinion’ by Catriona MacLennan – see Sexual misconduct issue hampered by generalised attacks. I think that sexual misconduct and sexual crimes are complex issues that require a concerted joint gender effort, and generalised blaming is unhelpful.

Another analysis of the MacLennan’s assertions from ‘NaCLedPeanuts’ at Reddit: NZ’s failure on sexual misconduct is much, much bigger than any one case:


It is difficult to put this down to anything other than them not considering sexual harassment to be important.

That’s not quite true. Sexual harassment and sexual violence is a serious issue that a lot of companies, institutions and organisations would rather not deal with when it pops up out of fear that it could spiral out of control and result in a huge amount of damage to that company, institution and organisation. It’s in the interests for sexual harassment and assault allegations to be swept under the carpet rather than aired in public, where the latter will often make uneducated, kneejerk reactions or engage in unscrupulous speculation about who did what.

We’re only at the cusp of these allegations so far, so I’d expect more damaging stuff to come forth in the future.

Sexual harassment – like rape, domestic violence, the gender pay gap and other issues – is pigeon-holed as a “women’s issue”. This means that women are regarded as being responsible for solving it.

Again, not true. The overwhelming evidence with regards to the beliefs and actions of feminists and women elsewhere within both the developed and developing worlds is that yes, it is a “women’s issue”, but that means that women are the victims, not that it’s their responsibility for them to solve it. The rhetoric (for the want of a better word) is that women are the victims, men are the perpetrators and that it’s up to men to solve these issues, or in the case of the popular rape culture theories, for apparently enlightened feminists to “teach men not to rape”.

This of course allows no room for nuanced discussions or action to address this issue.

Men are the perpetrators, but calling sexual harassment a “women’s issue” gives men a get-out-of-jail-free card.

There’s a couple of problems with this. Firstly, “men are the perpetrators” is very, to use a word favoured by the millennial left, problematic. It is problematic because it assumes that only men are perpetrators and only women are victims, something which is obviously not true. Sexual harassment and sexual violence can and does happen to anyone regardless of race, sex and sexual orientation but Western societies collectively struggle to get past the dichotomy which puts men and women as oppressors and victims respectively. This, again, leaves no room for nuanced discussions or actions that consider all victims.

Secondly it doesn’t give men a jail-free-card because, as we’re seeing with #MeToo in the United States and the wholesale embrace of misandry by Western feminism as a whole, men collectively as a “class” are essentially being blamed or held responsible for all the ills of society. As we have already seen, men elsewhere who have been accused have been suffering serious consequences despite the lack of evidence supporting a lot of these allegations. New Zealand generally has issues with recognising sexual harassment and sexual violence as a serious problem as a whole, but to suggest that this is a women’s only problem or that it’s regarded as a problem that only women are willing to solve is disingenuous.

Not a single male lawyer has spoken out about sexual harassment in the legal profession. They have – gutlessly –sat by and left it to women to speak;

Men’s opinions and voices regarding women’s issues, or at least social issues where women are perceived to be the primary victims, are a subject of discussion in of themselves. There’s no real agreement on whether or not men’s opinions or voices are welcome in these circumstances. In addition, reluctance can be assumed to exist because the opinions may be perceived as insincere, that they themselves may be implicated or accused, or simply that there’s enough moral outrage and that their opinion is simply moot.

It seems that it is only when journalists do stories about sexual harassment that employers are forced to deal with it properly;

Because of the damage that could come to employers, who usually had nothing to do with it, that could seriously affect their ability to do business. If your company has an employee commit a sexual crime against another employee, it’s in your interest to resolve that issue as quickly and as quietly as possible. Because you cannot control the damage if it goes public.

As a result of the latest stories, there will be reviews and new procedures.

Indeed. And we’ll likely see a mirroring of those procedures as implemented in places like the United States. South Korea, where #MeToo also has arrived, has seen an explosion of interest in the rule United States Vice President Mike Pence has regarding attending functions or dining alone with women, which he refuses to do. They’re applying it to business environments and that means not interacting or doing anything alone unsupervised with women.

That is because the root cause of sexual harassment is power.

Wait for it…

In our society, it is middle-class, Pākehā males who hold power.

Here it comes…

In their heart of hearts, they view women as inferior.

DING DING DING! Somehow I knew we couldn’t get through this article without someone blaming this phenomena on white males. For someone who earlier was arguing that all these social ills were women’s responsibility she seems to be more than happy blame every single white man in New Zealand for this issue.

But it doesn’t surprise me that we have this kind of idiotic social commentary being published by the likes of the Spinoff. After all misandry is en vogue at the moment. Maybe that’s why all the lawyers aren’t speaking out when they’re being blamed for everything that’s been happening?

Until we not only tackle but actually solve the power imbalance, Pākehā males will continue to believe that women’s bodies are theirs for the taking – whether it is in the workplace or elsewhere.

And how do you tackle and resolve this “power imbalance”? Give women more power! It’s almost like Ghandi was right about “an eye for an eye will make the whole world blind”.

 

Sexual misconduct issue hampered by generalised attacks

Generalised anti-men attacks are common in social media – as are anti-women attacks for that matter. Sad but inevitable.

However they are more troubling when attacks are via media. Especially when it involves such a serious problems like sexual misconduct and abuse of power.

Catriona MacLennan (Opinion) at The Spinoff – NZ’s failure on sexual misconduct is much, much bigger than any one case

Sexual harassment is still not regarded a serious issue in Aotearoa.

That is what we have learned since 2014, as a pattern of inadequate responses to harassment has played out in the public and media spotlight.

Not a good start – yes, there have been prominent inadequate responses to harassment played out in the media spotlight, but the fact that they have received so much scrutiny suggests that sexual harassment is regarded as a serious issue by many people.

MacLennan goes on the detail a number of issues that have been given serious attention by media.

There are five common threads running through all these cases.

  • Many employers and other organisations do not have proper procedures for dealing with sexual harassment. It is difficult to put this down to anything other than them not considering sexual harassment to be important. I can guarantee that all of the above organisations have robust procedures for dealing with, for example, theft and would know exactly what to do if money disappeared;
  • The immediate response of a majority of organisations is to downplay sexual harassment and assault, minimising and trivialising it. This is because the key concern of those to whom sexual harassment is reported is with protecting the organisation, rather than supporting the victims;
  • Sexual harassment – like rape, domestic violence, the gender pay gap and other issues – is pigeon-holed as a “women’s issue”. This means that women are regarded as being responsible for solving it. Men are the perpetrators, but calling sexual harassment a “women’s issue” gives men a get-out-of-jail-free card. Not a single male lawyer has spoken out about sexual harassment in the legal profession. They have – gutlessly –sat by and left it to women to speak;
  • The role of the media is incredibly important. It seems that it is only when journalists do stories about sexual harassment that employers are forced to deal with it properly;
  • It is the victims who continue to pay the heaviest price. In addition to dealing with the behaviour to which they are subjected, they are forced to weigh up the likely impact on their careers of seeking justice for what they have endured.

The first two and last two points are fair.

But I question a number of assertions in the middle bullet point.

Sexual harassment is pigeon-holed as a “women’s issue”.

Perhaps in the past, but increasingly less so. It is becoming widely accepted that men need to take responsibility for inappropriate attitudes and behaviour.

This means that women are regarded as being responsible for solving it.

Who thinks that? Male journalists have been very involved in spotlighting issues. Male Labour Party officials were responsible for dealing with Labour current issues. They admit stuffing up, but Jacinda Ardern hasn’t been particularly prominent in resolving things either.

Men are the perpetrators, but calling sexual harassment a “women’s issue” gives men a get-out-of-jail-free card.

Only some men (a small minority) are ‘the perpetrators’.

How many men call sexual harassment a “women’s issue”? I haven’t seen it. This is generalised men bashing, which doesn’t help the issue.

Not a single male lawyer has spoken out about sexual harassment in the legal profession. They have – gutlessly –sat by and left it to women to speak;

That’s just patently untrue. Newsroom:  All six law schools cut ties with Russell McVeagh

Auckland’s Dean of Law, Professor Andrew Stockley, told staff and students today that students “invited to an event or employed in any capacity should expect appropriate and professional behaviour at all times, and that the school would not accept any student being subjected to inappropriate behaviour, pressure, or sexual harassment”.

Victoria University of Wellington’s Law Students’ Society (VUWLSS) also said it was ending its relationship with the firm over the way it handled the misconduct and assault complaints. VUWLSS President Fletcher Boswell wrote on Facebook:

“The assaults should have been reported as an official complaint to the Law Society immediately after they occurred. Russell McVeagh have confirmed that this was not done at the time, and that this still has not been done. From our understanding, this is a breach of what the firm is legally and ethically obliged to do”.

Law Faculty Dean Professor Charles Rickett said the law school withdrew because of concerns over the behaviour of some Russell McVeagh staff.

“On balance, we believe it is suitable to be cautious about the safety and wellbeing of our students and to wait until the outcome of the external review before deciding how to proceed.”

Victoria University Vice-Chancellor Professor Grant Guilford confirmed the university had been in discussions with NZLSA about covering any incurred costs.

“Victoria awaits the outcome of the external review of Russell McVeagh and the firm’s response to the review before deciding whether to resume activities with the firm. We believe it is in the best interests of our students and staff to await the external review of Russell McVeagh’s workplace culture and – perhaps more importantly – the firm’s response to the review.”

Waikato University’s Dean of Law, Associate Professor Wayne Rumbles, told Newsroom the university will not be hosting Russell McVeagh on campus, “nor will it be engaging with the firm for student recruitment, at this stage. The University will also be paying for its team to take part in the Client Interviewing competitions this year, rather than accepting sponsorship from Russell McVeagh. While investigations are carried out, our priority remains the well-being of our students and graduates.”

Back to MacLennan :

As a result of the latest stories, there will be reviews and new procedures.

But, fundamentally, nothing will change.

I think that things are noticeably changing.

That is because the root cause of sexual harassment is power.

In our society, it is middle-class, Pākehā males who hold power.

In their heart of hearts, they view women as inferior. They are used to women in their lives deferring to them.

This is generalised ‘middle-class, Pākehā male’ bashing. It is also sexist and racist. And I’m sure that it is false and unfair on many men.

Until we not only tackle but actually solve the power imbalance, Pākehā males will continue to believe that women’s bodies are theirs for the taking – whether it is in the workplace or elsewhere.

I’m quite disgusted by this. Attacking a wide group for the offences of some is wrong, and it ignores the fact that perpertrators are also outside the group that MacClennan is attacking.

This broad brush single colour attack won’t help solve the real serious issues.

Sure, men in general should do more to oppose sexual harassment and attacks, they need to speak up more, and stand up more for decency.

Women also need to do more. Some are, and that’s a good thing.

Some men have been and are doing more too. More need to be encouraged to do more. Tarring them with a generalised brush won’t help with that.

Making this an all men versus women issue is one of the worst approaches to dealing with the real problems that need resolved and that’s what MacLennan is doing here.

I think that fortunately most women don’t share these ‘all men are bad’ attitudes.

There are things that women can do, and there are things that men can and should do, to combat the sexual harassment and violence issues.

Most importantly, good men and women need to work together to improve our society, not see each other as inferior or as enemies.

 

The white male problem

It’s becoming increasingly common to see criticisms and attacks on people and their opinions because they appear to be white and male.

This was rife this week in relation to the Metiria Turei issue. Some portrayed it as an attack on female Maori solo mothers and any white male was an enemy to be condemned and excluded from the ‘conversation’ promoted by Turei.

It was misguided – when Green MPs Kennedy Graham and David Clendon made a stand on principles and ethics they were abused, and I saw a number of attacks along the lines of ‘good riddance to white males’. Clendon happens to be tangata whenua.

‘White male’ generalisations have been increasing for some time. I February Catriona Maclennan wrote:  Beware the terms men use to maintain power

There is no such thing as identity politics. The term is used by white men seeking to hold on to their power and deny the human rights of Maori, Pasifika, women and LGBTQ people.

Human history is the history of male domination and, primarily, of white male domination. Black and brown people, women and LGBTQ people have been prevented by law, custom and outright physical force from accessing political power, jobs, votes and resources.

Groups which have suffered legalised discrimination for centuries are increasingly fighting for full human rights and equal treatment. This has angered white men, who are determined to hang on to their power. One of their weapons is language, and that is why the term “identity politics” has gained such currency.

The following is a brief dictionary to assist those who find dealing with the language of the genus white male confusing.

“Broad church” – a phrase commonly used in relation to political parties. It means white men should retain control of all the key positions in the party.

“Merit” – a subjective criterion which holds that traits displayed by white men are the most desirable qualities in job applicants and political candidates. Once women and non-Pakeha acquire the prescribed qualifications and experience, the goalposts are shifted to say other qualities they do not possess are vital to the role.

“Political correctness” – any move to protect the human rights of anyone other than white men. Epitomised by the supporters of United States President Donald Trump who have reportedly assaulted women since his election win because “political correctness” no longer applies.

“Racial or gender quota” – a plainly unfair device to deprive white men of their pre-ordained right to the overwhelming majority of top jobs and political positions.

“Shrill”, “screeching”, “shrieking” and “screaming” – words applied exclusively to women engaging in political debate. The men who use these terms are under the misapprehension it is February 1817, rather than February 2017.

• Catriona MacLennan is a barrister and former press gallery journalist.

MacLennan is correct about some white males, but she is discriminating against many others.

A white male has just written:  Play the ball not the man

Personally, I’ve pretty much had a gutsful with arguments and ad hominem attacks that treat an opinion as less valid because the person expressing it happens to be… a white male. Yes, folks, run screaming into the hills right now. But, I have read stories, opinion pieces and countless social media posts criticising people’s ideas, where this argument raises its head solely as a means of discrediting someone’s point of view.

My recent experience of this was in relation to an opinion I wrote about Metiria Turei. In my case, criticism it seemed to be based on an assumption that as a white male, I apparently come from a position of privilege and so can’t possibly relate to the plight of someone like Turei. So I was therefore not sufficiently qualified to have an opinion.

This becoming common.

This outlook is not only short-sighted but a potent combination of sexism and racism. And in the case of the latter, not in the way that you might think.

Firstly, on the question of gender, while I can’t speak for everyone, I want to point out the bleeding obvious. There isn’t a secret club (at least not that I am a member of) where all white males get together to plot the downfall and subjugation of anyone who doesn’t resemble us.

Secondly, there is something particularly odious about the suggestion that the colour of your skin disqualifies your right to have an opinion on certain issues in New Zealand. In seeking to defend Turei, for instance, one writer made the point that the white male enjoys among other things “a wide network of social and family connections and support”.

This is in my view a shameful generalisation. At its worst it arguably implies that other ethnicities, largely, do not enjoy such benefits.

Generalisations aren’t new, it just happens that ‘white male’ has become a popular one – and an unpopular one, but mainly amongst white males and they’re dirt now so that doesn’t matter.

Creating a generalised minority as an enemy is a poor way of promoting better rights for other minorities.

‘European’ is the biggest ethnic group on New Zealand, making up about 74% of the population – 2013 Census QuickStats about national highlights

About half of them will be male, and not all of them will be ‘white’, so white males will be somewhere around a third of the population. That’s still a significant proportion but that proportion will be shrinking.

However within that third there is a very diverse bunch of males. Most of us have never been in positions of power either.

“If we really cared about sexual violence we would…”

Catriona MacLennan is ‘a barrister, journalist, author and media commentator, who has practised law in areas including family and domestic violence’.

In  High time to end sexual violence double-standards (RNZ) she refers to apparent police inaction over alleged threats to attack and potentially kill people who planned a protest against ‘rape culture’ in Wellington, and offers some suggestions in dealing with attitudinal and behavioural problems.

If we really cared about sexual violence we would:

  1. Never again treat comments about rape and denigration of women as jokes.
  2.  Do pro-active monitoring and take action to prevent online sexual harassment and cyber-bullying of young women.
  3. Teach consent in all schools.
  4.  Prosecute males for threatening to kill, conspiring to commit rape, sexual assault and other relevant offences.
  5.  Educate lawyers and law students about rape myths, and treat the use of rape myths in trials as serious misconduct for lawyers. Lawyers’ first duties are to the court and to the administration of justice. Perpetuating rape myths undermines the administration of justice.
  6. Teach boys to respect women.
  7.  Provide paid lawyers for victims in sexual assault cases.
  8.  Accredit and specially train prosecution and defence lawyers working on sexual offence cases.
  9. Make progress on improving police treatment of rape cases a Key Performance Indicator for the Police Commissioner.
  10. Make it a national goal for Aotearoa to be sexual-violence-free by 2020.

Young men learn their attitudes to women and to rape from older men.

She makes some reasonable points, but in slanting her suggestions too much she is going to annoy many of the people she needs to get onside.

While boys and men are certainly blameworthy this is a complex whole of society problem and females are not always blameless either. Mothers can teach children by good and by poor example as well as fathers. Girls and women can reinforce damaging cultures too.

I would re-word MacLennan’s suggestions.


If we really cared about sexual violence we would:

  1. Never again treat comments about rape and denigration of peeople as jokes.
  2.  Do pro-active monitoring and take action to prevent online sexual harassment and cyber-bullying of young people.
  3. Teach consent in all schools.
  4.  Prosecute people for threatening to kill, conspiring to commit rape, sexual assault and other relevant offences.
  5.  Educate lawyers and law students about rape myths, and treat the use of rape myths in trials as serious misconduct for lawyers. Lawyers’ first duties are to the court and to the administration of justice. Perpetuating rape myths undermines the administration of justice.
  6. Teach children to respect other people.
  7.  Provide paid lawyers for victims in sexual assault cases.
  8.  Accredit and specially train prosecution and defence lawyers working on sexual offence cases.
  9. Make progress on improving police treatment of rape cases a Key Performance Indicator for the Police Commissioner.

Young people learn their attitudes to sex and to rape from both their peers and off older people, in particular their parents.


Yes, there are more and worse male offenders but not all boys and men, and it’s not only boys and men. Labelling all males and ignoring female culpability will alienate rather than encourage joint actions and solutions.

I have omitted the ‘sexual-violence-free by 2020’ target as it is unrealistic, especially in that time frame. Our aims should be to substantially improve attitudes to sex and to other genders and to people in general, and to significantly reduce sexual violence as quickly as possible.

But there are no quick and easy fixes.

If we really cared about sexual violence we would work rather than make it a male versus female problem.