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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.

When I was at law school, we studied a case in which a man repeatedly advertised for a housekeeper.

When women came to his home for an interview, he forced them to have a bath and then sexually assaulted them.

The lecturer who taught us about the case outlined the facts and then said

“He must have had a huge hot water bill,” and laughed uproariously at his supposed wit.

I went up to speak to the lecturer at the end of the class and said that there was nothing funny about rape and I thought his remark was inappropriate.

I assumed that the only result of my comments would be that I would receive a lower mark in the end-of-year exam.

However, many years later, someone told me that the lecturer actually thought about what I had said and then subsequently followed my career.

Not all of my instances of speaking out have ended so positively. In fact, my experience of the legal profession is that its most senior members would prefer women to remain silent.

When I finished law school in Christchurch and began applying for jobs, I was asked what school I had gone to (the “roughest” state school – it had excellent teachers); and what my father did (never what my mother did).

After I obtained a job, a partner in my law firm gave me a ticket to a Law Society lunch which he could no longer attend.

When I arrived, I walked into a forest of dark suits. There were around 50 male lawyers there and I was the only female lawyer.

By the time we sat down to lunch, there were approximately 117 male lawyers present, and three female lawyers.

Everyone was pākehā.

The results of a recent Criminal Bar Association survey of harassment and bullying, which found that 65 per cent of respondents pointed to judges as the source of the behaviour come as no surprise.

When I was a young lawyer, certain judges had reputations for bullying inexperienced lawyers – apparently as part of a process of “hardening us up” to turn us into good lawyers.

One of the first media commentaries I did was about the Police Diversion Scheme. A well-off, male, pākehā was granted diversion for an offence for which one of my economically-disadvantaged, non- pākehā clients would not have been considered for diversion.

Soon after my comments appeared, I received a letter from an older, male, pākehā High Court judge on behalf of a legal committee. He asked me the basis of my comments, with strong overtones that he thought I had spoken on the basis of no evidence.

I forwarded my evidence to him and heard nothing more.

Later, I wrote a history of the Auckland District Law Society. When it was published, an older, male, pākehā Queen’s Counsel telephoned the then-Executive Director of the Society to tell her that I had made a factual error in what I had written.

She asked me to sort it out and I contacted him for details of the alleged mistake so that a correction could be printed.

He was extremely rude and dismissive and asked why I was bothering him with such a trivial issue.

Lawyers are required under clause 10.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 to treat other lawyers with respect and courtesy.

The Queen’s Counsel was in breach of that obligation.

And, of course, when I checked, what I had written was correct and it was the Queen’s Counsel who was wrong.

Would a Queen’s Counsel speak to a male Barrister in the way he spoke to me and without bothering to check whether what he said was correct?

Absolutely not.

On another occasion, a journalist whom I did not know and with whom I had never had any contact wrote something which defamed me.

I wasn’t sure what to do and a journalistic colleague suggested I contact an older, male, pākehā Queen’s Counsel she knew.

I spoke to him about the issue and he told me not to do anything as the publication did not have a very large audience.

I accepted his advice and did nothing.

Subsequently, I realised that the Queen’s Counsel would never have been so casual about his or about a male Barrister’s reputation.

He just thought it didn’t matter because I was a woman.

I was for five years a legal commentator on Radio New Zealand’s Nine to Noon programme.

When I returned from the studio after one commentary, I was telephoned by an older, male, pākehā Queen’s Counsel.

He immediately started berating me and said I did not understand the facts of the case, did not understand the law and was wrong in all aspects of my commentary.

I was so taken aback that I said nothing for a couple of minutes.

However, once I started responding, I quickly discovered that the Queen’s Counsel had not even listened to my comments.

Instead, he had delegated his junior to listen and provide notes.

He rang on the basis of the notes to upbraid me.

I invited the Queen’s Counsel to actually listen to my commentary and said that, if he wished to telephone me again after doing that, I would be happy to discuss the matter further.

I never heard from him again.

Would that Queen’s Counsel have rung and torn strips off a lawyer whom he considered a colleague ?

Of course not.

When he thought of me, however, he didn’t think of a lawyer: he thought of a woman.

He accordingly expected me to listen passively to what he said and then to apologise for my wrongdoing.

When I first started practising law in Otahuhu, I worked in a small law firm which primarily did family law work.

We acted for three Women’s Refuges and this was my first introduction to anti-domestic violence advocacy.

That was 21 years ago and I have since then continued public and political advocacy, unpaid, against domestic violence.

I have spent thousands of hours on this work without being paid a single dollar. I have done hundreds of commentaries on television, on radio and in print about domestic violence.

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 reason I said it was because I am very familiar with the research about the effectiveness of anger management programmes.

Studies show that sometimes they change attitudes and behaviour, but in other cases perpetrators come out of the courses with their original attitudes firmly entrenched.

I simply do not believe that a limited amount of domestic violence training would reverse the attitudes of someone of the Queenstown judge’s age and length of time in the legal profession.

It is incredibly difficult to alter views and behaviour at such an age.

The day after my comments, the Chief District Court Judge commented to the Herald about the case.

She said that –

“ I cannot comment on the case at this stage because it may be the subject of appeal.

“But to the extent that the Judge may have expressed himself inappropriately in any event, I do not seek to defend his remarks.

“And I am sure on further reflection neither would he.”

In my – very lengthy – experience it is unprecedented for a Chief District Court Judge to make such remarks publicly.

I can recall no other instance.

A member of the public wrote to the Chief District Court Judge about the case and the letter was signed by other women.

The Chief District Court Judge replied to the letter within 24 hours, making the same comments as she had made to the Herald and adding that she had “conveyed my views to the judge directly, and he will be receiving further education about the complex dynamics of family violence.”

In my experience, this is also unprecedented. I have never known a Chief District Court Judge to respond so promptly to a communication from a member of the public and to make comments such as those contained in the reply.

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.

This is a disciplinary matter.

I have held a practising certificate for 25 years (though not consecutively) and no client has ever made a complaint against me and there has never been any suggestion of incompetence.

The National Standards Committee is the law society organisation which has the power, if it chooses to do so, to inquire into the sexual harassment and assault in the legal profession which has been extensively publicised this year.

The committee has asked me to respond to a series of questions. These include –

Whether I undermined the dignity of the judiciary ?; and

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.

Women in every country on the planet have been denied freedom of expression for thousands of years.

In 2018, millions of women still do not have freedom of expression.

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.