GPS monitoring of protection-order respondents
FYI, our letter to Hon Anne Tolley regarding her Radio NZ interview on 16 May 2013, that can be heard here.
It’s incredible how complacent kiwis are about government removal of civil rights and fair treatment. We believe western governments including New Zealand are preparing for major repression of their populations and are awarding themselves more and more powers and laws for this purpose. Regardless, Tolley’s proposal will impact almost exclusively on men and we need to pay attention to this development.
MINISTRY OF MEN’S AFFAIRS
MINITATANGA MO NGA TANE
A Community Group because successive governments have failed to respect the voice and welfare of New Zealand men
PO Box 13130
30 August 2013
Hon Anne Tolley
Minister of Police
Private Bag 18888
Dear Ms Tolley
Re: Interview on Radio NZ’s ‘Nine to Noon’ programme on 16 May 2013 concerning GPS tracking of Protection Order respondents.
On the basis of your interview we are concerned about your true motives and intentions. At the end of this letter outlining our concerns we put a number of questions to you that we would like answers to.
We have serious concerns about a number of statements you made in this interview:
Ms Tolley: “…I’ve had a couple of really tragic cases in Gisborne where people, the the the women concerned have done everything that they possibly could to stay away from these, these animals and um they’re still hunted down and, you know, anything that we can do in a very complex situation we, you know we should be taking every effort.”
We were very concerned that you referred to male human beings as “animals”. Staff in Corrections are required to treat the offenders they are responsible for with respect and dignity, yet you as the head of Corrections model to your department this dehumanizing language and attitude towards offenders. In your position of power such language amounts to hate speech likely to encourage your staff to view and treat offenders in dehumanizing ways. You further suggest that “anything we can do” would be justified and this may encourage certain Corrections staff to breach ethical boundaries in their treatment of offenders. Your language and attitude here breached ethical boundaries already.
Interviewer: “If it’s already in place for serious offenders, I think you announced this about a year ago, why is it not applied to domestic violence offenders?”
Ms Tolley: “Oh, well, I mean it’s an evolving process. So, we’ve got 40 offenders currently in the community and that’s just within about 6 or 7 months so, you know this is very new for us ah and …we started with ah sex offenders, we’ve now included ah violent offenders and I, I’ve asked Corrections now to investigate um whether we can include some of these um repetitive violent um people who are who are breaching those protection orders.”
Our first concern was that you acknowledged GPS monitoring can already be applied to violent offenders, therefore it can already be applied to people who breach protection orders by violently offending. There is then no need to seek to extend GPS monitoring for this purpose, so is your true intention to use GPS monitoring for those respondents who breach protection orders in non-violent ways? Or is your true intention to use protection orders and the low standard of justice they entail as way of controlling people who someone claims or predicts might offend violently in the future? Such draconian removal of freedoms amounts to punishment for offending that has not occured and may never occur, and we are concerned this injustice is becoming a norm designed to target men primarily.
You will be aware Ms Tolley that NZ protection orders are already a travesty of justice. Case law is gradually recognizing this in piecemeal fashion. That nobody to date has mounted a challenge under international conventions to this travesty is surprising, but your proposal to extend such injustice further is concerning.
(i) Protection orders punish people by removal of some of their fundamental rights, through a Family Court process that lacks most long-established protections against false conviction and other injustice.
(ii) There is no limitation on the evidence that a Family Court can include, there is no need to prove any any prima facie case beyond making an allegation, and there is no requirement at any point to prove allegations beyond reasonable doubt.
(iii) The ‘balance of probabilities’ level of proof is inadequate for such serious removal of respondents’ rights, and in practice amounts simply to ‘whatever a Family Court judge chooses to believe at his/her total discretion’.
(iv) Most protection orders are made on the basis of no evidence beyond an applicant’s uncorroborated allegations.
(v) Punishment through protection orders can be imposed and is often imposed in the absence of any wrongdoing by the applicant, based entirely on an applicant’s subjective beliefs or feelings about a respondent’s behaviour that may otherwise be entirely legal and reasonable (See the Domestic Violence Act 1995 s13 (1) and (2), s14 (3), (4) and (5)).
(vi) The range of behaviours leading to punishment via protection order is extensive, far beyond what is illegal according to the Crimes Act, and in addition those behaviours are vaguely defined so as to allow almost any behaviour to be labelled as ‘domestic violence’.
(vii) Protection orders can be made and often are made without notice, i.e. the respondent is punished without any right to a legal process at all, without any right even to answer allegations made against him. This punishment routinely lasts for several months before the respondent gets any chance to answer and will become permanent if for any reason the respondent does not initiate legal proceedings against that order.
(viii) Those punished via protection orders are almost all men. Applications made by men for protection orders are refused much more often than those made by women, and protection orders made against women are discharged much more frequently and much earlier than those against men, showing strong gender bias in practice.
The Ministry of Men’s Affairs is concerned that you are seeking to allow this appallingly inadequate level of justice to creep further into New Zealand law, now through its Corrections system and Parole Boards that, like the Family Court, are not required to observe most of the long-established protections against injustice that District and High Courts are required to observe.
You will also be aware that most breaches of protection orders involve nothing that could reasonably be seen as violent. Breaches are often for sending a birthday present to one’s child, waving at one’s children when they happen to pass by in a car or attempting to communicate with ‘the protected person’ in non-violent ways. Breaches are often prosecuted at the whim of ‘the protected person’ who is allowed to invite the respondent to have contact but then to complain of a breach if (s)he becomes displeased with the respondent for any reason at all. Men are mainly the victims of such unfairness and The Ministry of Men’s Affairs is concerned that you intend to compound this through GPS monitoring. Again, any violent breach can already be dealt with by GPS monitoring, so the extension of such monitoring that you are seeking can only be intended for those who breach non-violently or those who have not yet breached at all.
Interviewer: “How does it work? Presumably the offenders have ankle bracelets attached, so how, how does it work, what would trigger a response?”
Ms Tolley: “So each individual offender is set up with um some exclusion areas so on a protection, if someone’s um got a protection order out against them then then you…would look at where the partner lived, um if there’s children then maybe their local school and their local park, and they would be designated as exclusion areas, ah and then if the offender went anywhere near, cause they’re monitored 24 hours a day so if they went anywhere near those exclusion areas the alarm would sound and some action would be taken both by the by the um oversight from Corrections and then if they continue to ah go in to the exclusion area perhaps by the police. So you you it gives you the opportunity to actually intervene early before anything happens so we’re not having the police turn up and pick up the pieces.”
The Ministry of Men’s Affairs is concerned that you refer to protection-order respondents as ‘offenders’. This is common but a dangerous misrepresentation of protection orders. The legal process for imposing a protection order in no way establishes guilt of criminal offending, and to label protection order respondents as ‘offenders’ is irresponsible.
Good scientific research (as opposed to feminist advocacy research) has clearly established that most domestic violence arises in the context of relationship conflict in which both parties behave violently towards each other in various ways. Domestic Violence Act proceedings arbitrarily label one party ‘the violent party’ and the other party ‘the victim’ but this is rarely a valid or reasonable way of viewing the situation. Who is labelled ‘the violent party’ depends mostly on who is the first party to initiate an application, and cross-applications are not allowed. Your labelling of respondents as ‘offenders’ further extends the falsehood inherent in the Domestic Violence Act’s categorizing process. The convention of referring to a respondent as ‘the violent person’ is equally irresponsible given that orders can be made and many are made on the basis of an applicant’s subjective beliefs or feelings about a respondent’s behaviour that may in no way be violent.
The Ministry of Men’s Affairs is also concerned that here you have said you want to use GPS monitoring to “intervene early before anything happens”. The loss of privacy and degree of restriction on free movement through GPS monitoring are very serious impositions on individuals’ rights, can only be seen as punishments, and should not be done on the basis of some possibility of offending that has not yet occurred.
Ms Tolley: “…I think this is this is something we can do to try and get some prevention into the system.”
If you are prepared to use draconian restrictions on people’s freedom to prevent them from possible future offending, then that’s really no different ethically from simply locking in prison anyone you or someone else claims might offend at some time in the future. And that future will often be a lifetime because protection orders are permanent unless a Family Court judge sees fit to discharge it and that is completely at a judge’s discretion.
Interviewer: “So there there there could be bans put on going to a certain city or a certain town?
Ms Tolley: “Yeah, around where where the victims are and it’s it’s how that, ah you know I haven’t seen the detail of that but but that that’s also a possibility…”
We are concerned that you are proposing to stop protection order respondents from being in towns, cities or large areas of the country on the basis of possible offending that they have not committed. That is ethically little different from restricting people’s movement to various areas on the basis of their race, group membership or political allegiance.
Interviewer: “When it comes to domestic ah violence, what would lead to it being imposed on an offender?
Ms Tolley: “The GPS you mean?”
Ms Tolley: “Oh, yeah we would we would have to so so currently we have to put a case to the Parole Board or to the Court um to show that you know this person is high risk um and that they need this this extreme ah type of management system, and and you know the Parole Board has been pretty good so far.”
We were concerned that you failed to clarify what type of domestic violence you want to lead to GPS monitoring. You may well convince the Parole Board that a protection order respondent is at high risk of breaching the protection order, but that may not involve ‘violence’ at all by any reasonable definition. Also, the Parole Board is not a Court and is not required to follow the proceedings, rules of evidence or standards of proof designed to protect defendants against injustice in Courts.
Ms Tolley: “…Yes, they’re managed and they have to report in and you know they have have random visits but that’s not stopping these guys stalking and and killing ah their their ex partners or their their current partners.”
We were concerned that you use the term “these guys” suggesting that only men stalk or kill current or separated partners. This is not correct; a smaller but not insignificant number of partners and separated partners are killed by women too, including both female and male victims. We were concerned that you would mislead the public by implying that only men commit such violence. Your comment is discriminatory against men.
The questions we would like straight answers to are as follows:
1. What specific behaviours do you want to lead to protection-order respondents being subjected to GPS monitoring?
2. Are you seeking or willing to allow repeated, non-violent breaches of protection orders to lead to GPS monitoring?
3. Do you want decisions to impose GPS monitoring to be made by a District or High Courts on the basis of proof beyond reasonable doubt, or instead do you believe those decisions could be made by the Family Court, Parole Board or other institutions that apply much inferior standards of evidence, proof and justice?
4. Why do you see it as necessary or desirable to extend GPS monitoring when it can already be used for violent offenders?
5. What specific types of evidence do you envisage will allow a body to act on predictions of future violence that has not already been demonstrated? Would sufficient evidence arise from allegations or opinions offered by protection order applicants, or from risk assessments made by psychologists, or from predictions made by psychics? What types of evidence would you see as not sufficient to allow a body to act on such predictions?
6. Do you envisage that GPS monitoring will continue for the duration of the protection order, i.e. throughout the lifetime of any protection-order respondents?
7. Is your true intention to use less robust laws and processes to impose state controls on certain people in ways that would not be acceptable within a robust justice process?
8. What specifically have you requested the Corrections Department or other advisors to report to you on in relation to extending GPS monitoring to protection order respondents, and what background information have you provided them or directed them to consider?
Ministry of Men’s Affairs
Copies via email to:
Hon Pita Sharples, Associate Minister of Corrections
Hon John Banks, Leader Act Party
Andrew Little, Spokesperson for Justice, Labour Party
Kris Faafoi, Spokesperson for Police and Corrections, Labour Party
David Clendon, Spokesperson for Corrections and Courts, Green Party
Jan Logie, Spokesperson for Human Rights, Green Party
Denis O’Rourke, Spokesperson for Justice, NZ First Party
Asenati Lole-Taylor, Spokesperson for Corrections, NZ First Party
Hone Harawira, Leader Mana Party
Peter Dunne, Leader United Future Party