Essentialism damages, even kills

Is this becoming a pattern in Australian heterosexual behaviour, and criminal sentencing?

1. A dysfunctional couple have a child. The dad just decides he’ll opt out of the child care role.
2. The mum is such an abominable carer that the child dies.
3. The dad continues to live in the same house without lifting a finger to help said child.
4. The dad’s legal team argue that he is less culpable than the mother, as he had less responsibility than the mother.

This has now happened twice. I wrote about the first incident here. In the first case the prosecutor threw the argument out and charged both parents equally severely. In this case, it’s succeeded; the dad has twelve years for manslaughter, the mother a life sentence for murder. Notice, also, the headline of the linked newspaper report, which refers only to the “cruel mother”.

Is there any possible reason for the unequal view of the parents’ culpability, and the dad’s assumption that it was OK for him to do nothing, apart from the extremely essentialist and determinist views of gender that are so popular at the moment? Have we gone so far down the track of dumbed-down evpsych / Women-are-from-Venus/ “hard-wired” interpretations of human behaviour, that adult court officials can actually believe this story? That an adult couple can share the same house and the same family, yet the woman must be more responsible for their folie a deux simply because she should be genetically hard-wired (or something) to be the nurturing parent? Or that men are so hard-wired not to be the nurturers that the father surely can’t have been expected to step in, or pick up a phone? (And people say feminists are disparaging towards men.)

I’m at a loss for any other explanation. It’s like magical thinking.

Gender essentialism (as well as all the other forms) is damaging. It’s not only damaging and insulting to women, but to men as well. And it keeps both of us from living as well as we could. And yes, sometimes, it kills.

 

 

Note – There are obvious disability and mental illness issues in this story, too. I’ve focused on one aspect of it here but there is really much more in it to unpack.



Categories: gender & feminism, law & order, violence, work and family

Tags: , , , ,

10 replies

  1. Hi Helen,
    I was so confused by this, I was beyond my usual “this another manifestation of patriarchal stereotyping”. I find it incomprehensible that he got manslaughter. I could not understand how one could be found guilty of murder and the other of a lesser charge. I searched high and low for some possible mitigating circumstances and for a history, but nothing much. As I understand it from this
    [link]
    BW and SW [moderator note: names redacted in compliance with court suppression order to protect identity of a deceased child and siblings – tigtog]were both charged with one count of murder each over the death of their daughter SW. And it seems the jury came to the conclusion that BW was guilty not of murder but of manslaughter. I am not sure how murder became manslaughter. Perhaps the court transcripts could shed light but they are not available.
    Both presented defenses of mental illness prior to sentencing. Perhaps a lawyer could explain how this conviction of manslaughter, instead of murder, can come about – from a legal perspective?. What kind of evidence would need to be presented for this to happen. I am kind of in a state of shock that essentialisation may lie behind the jury’s decision.
    Here is a summation of the circumstances (I have found newspaper articles that back it all up) with an horrific description of the state of SW’s body. It is very very upsetting. Please don’t read it if you cannot handle how very badly this little girl ended up.
    [link]
    Docs really should share some responsibility in this too. I don’t know how this family slipped off their radar. I also cannot understand how journos fail to ask questions regarding the lesser sentence of the father. It is not enough to report what the sentencing judge said. And explication of how his charge of murder became a conviction of manslaughter is required if journos want to be taken seriously. I got more off blogs than I did off the online papers. Im going to get the paper paper now to see if some investigative journo may have covered the case in more depth.
    It is deeply disconcerting, to say the least.

  2. Like both of you, I’m disturbed by the unequal convictions and sentences. I don’t have much more to add, except to explain re Casey’s question about how a murder charge resulted in manslaughter.
    Short answer: manslaughter is always an automatic alternative to a murder charge.
    What that means is this:
    The first thing to understand is that in order to get a conviction for an offence, each element of the offence has to be proved beyond a reasonable doubt. If any defences are raised, the jury also has to disbelieve those beyond a reasonable doubt. The elements for most offences are well settled.
    If you have a crime whose elements are A, B and C, and there is another crime whose offences are A and B but C is irrelevant, you can imagine a situation where there is evidence for A, B and C, but the jury only believes A and B beyond reasonable doubt.
    The prosecutor wants to ensure that, if the accused is guilty, she or he is convicted of the most serious offence. But you don’t want to run the risk that the jury MIGHT have found the lesser offence but acquits because the serious one is made out. But you can’t just charge with both offences because that would be double jeopardy. So: alternatives.
    Where you have the situation above, where the second crime has elements which are a subset of the elements of the first crime, the second crime is an automatic alternative to the first. This is the case for murder (elements: an act resulting in death plus intention to kill or cause gbh or recklessness as to possibility of death) and manslaughter (same elements but less re intention).
    So if you’re charged with murder, and the jury finds that you did the relevant acts but didn’t have the relevant intention, then they might find you guilty of manslaughter.
    You can also have alternatives where the elements overlap, but the prosecutor has to put those in the indictment (the document with the charges).

  3. It seems like a legal thing but in no way can the conviction be justified on moral grounds. You’re absolutely correct Helen, this type of thing is an appalling precedent and deserves to be condemned. I can’t even imagine a possible justification for not locking the pair of them up and throwing away the keys.

  4. Great post Helen!!
    Jo Tamar – very helpful response which has me really curious now about the specifics of this case, wish we knew more. Sorta. This case would be very difficult to read about, too.

  5. Thank you very much Jo Tamar. I am very grateful for that explanation.

  6. Having just read the link to ” aussie soapbox” may I point out that this site appears to be quite biased and inaccurate. For one thing, they didn’t raise a mental illness “”defence” , a successful defence of this kind leads to an acquittal on the grounds of mental illness and incarceration under the mental health legislation – usually in a prison anyway. What they were presenting was what any decent lawyer presents to the court on sentence – subjective material which may assist the court in formulating an appropriate sentence. Mental illness in the legal sense covers only a very small part of the spectrum of disorders – these people would appear to be like the vast majority of criminal clients – probably grossly personality disordered, drug dependant and inadequate – also typical DOCS clients. Doctors just give them prescription drugs as there is no treatment for this type of disorder.
    I don’t condone their gross neglect of their child – but there are a lot of people out there with these types of problems who are really struggling. The community needs to stop judging and start helping – stop the DOCS bashing too. You try just a day in that job and you will realise how difficult it is

  7. Thank you so much for speaking about this! I have been waiting for the feminist outrage at this case, as a criminal lawyer it is difficult to see how a jury could have seen the father as so much less culpable. It is important to note the role of the judge, however, he ( usually) frames the evidence for the jury and instructs them on the relevant legal principles to be applied. I would be very interested to know what the judge said to the jury in this case.
    Will try to find out.

  8. Thanks Maggie. I might just point out that a link in a comment does not necessarily constitute an endorsement of everything on the target site.
    My own opinion FWIW is that DOCs can never solve these problems because you never know what is going on somewhere where children are kept out of public view. As with the Fritzl case, you’d have to have SWAT teams going through every house in the nation on say a quarterly basis to catch all those cases. Isn’t going to happen, is it! And I don’t think anyone in their right mind would suggest it!
    It was totally the Dad’s responsibility to step up once it became obvious the kid was in decline and Mum wasn’t going to save her.

  9. Maggie Hall raises relevant points about the multiple issues that DoCS clients are usually dealing with. In order to tackle these issues we need to get down to the root causes; poverty, entrenched inter-generational disadvantage, psychiatric disability, substance issues, histories of inter-generational violence/abuse. For these issues to be addressed, communities and mainstream and specialist services must all be on board and on the same page. First-to-know services such as schools, real estate agencies and health services need to own some of the responsibility here. It goes without saying that DoCS are under-resourced, as are all welfare services, but DoCS can’t cope with these issues alone. Punitive measures such as incarceration might satisfy the ignorant mainstream that something has been done, but it won’t make a difference in the long term.

  10. …and yes that article on ozsoapbox is disgusting.

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