What makes this imprisoned paedophile so different?

I want to see the Criminal Procedure Act changed.  I want an addition to Section 200 on suppression of names, and I’ve made it easy for the incoming government by writing the draft clause.

 In proceedings related to the sexual abuse and exploitation of minors and the possession of Child Sexual Abuse Material, the name of any person sentenced to a term of imprisonment may be permanently suppressed only when the interests of the juvenile victims of the offence would be compromised by publication.

You may be able to guess what has prompted the call. Frankly, I was outraged when I saw the front page of the New Zealand Herald last Friday and the headline ‘Wealthy offender to keep name secret’.

The offender in question had been jailed for two years and five months after being found with more than 11,000 ‘objectionable publications’ depicting sexual exploitation of children ranging from toddlers to prepubescent girls. Some images were sadistic and one depicted bestiality. He was granted permanent name suppression, as were the name of his family and their high-profile company, and given a discount for making $50,000 charitable donation days before his sentencing date.

The Crown appealed the permanent suppression but last week it lost that appeal. Justice Michael Arthur’s decision said the experience of being arrested and the fear of going to prison was “stressful” for the man and had precipitated a decline in his mental health. Information put before the court showed the man had a long history of mental health difficulties, pre-dating the discovery of his crimes. Reports expressed serious concerns for the man’s mental state should he be publicly identified, and the guilt he would carry about his offending negatively affecting his family and their business. The decision supported the sentencing judge’s decision in suppressing the company’s name after ruling that publication could cause the firm undue hardship and reputational damage “because it might be unfairly linked with the offending”.

I cannot disagree more profoundly. It is yet another example of wealth proving a factor in the way the guilty are treated by the courts.

I am going to set out a number of cases where men have been sentenced to imprisonment on charges relating to child pornography and, in each case, the defendant was named. Then I will invite you to answer a question. Continue reading “What makes this imprisoned paedophile so different?” →

Beware a society that lacks clear boundaries

I am about to utter an unpopular – and to some old-fashioned – word: Boundaries. There, I’ve said it, and now you must puzzle over what it means.

Let me give you a small clue. I am not talking about the fours and sixes Glenn Phillips scored at Hagley Oval against India on Saturday. And the Concise Oxford Dictionary provides you with limited assistance with its definition of “a line marking the limits of an area”.

The old-fashioned concept that I am discussing in this commentary refers to limits, or the rules that societies impose on behaviour and communication in order to stop their members slipping back to a life that Thomas Hobbes described as “solitary, poor, nasty, brutish, and short”.

Every society has them. Most societies – not only Christian – generally hold at least four of the Ten Commandments as immutable: Thou shalt not murder, steal, bear false witness, or covert your neighbour’s house/wife/animals. Others move, alongside changes in the social fabric and beliefs over time. There would be a lot of dead people, for example, if adultery still saw miscreants stoned.

Each society has expectations of how its members will behave and those presumptions are not limited to what we might generally term criminality. They extend to the ways we interact with our fellow beings.

Some of these social boundaries are defined by law. In a democracy these laws are seen broadly as reflecting the limits that society wishes to see imposed on itself, although increasingly polarised politics may interfere with that notion. In autocracies such laws are used not for a common good but to confine and control populations.

Other boundaries, however, are tied to the presumption that the rights we claim come with responsibilities. The Golden Rule had been around a long time before Jesus proclaimed that we should do unto others as we would have them do unto us. Boundaries are about reciprocity: We observe them in order to also protect ourselves.

The problem with these boundaries, however, lies in how they are defined…or more to the point, not defined. Many of society’s limits are ‘understood’ as the rules we learn as children, as we enter society and interact with other members of it, and which unique circumstances create by forms of common consent. They are open to interpretation, and misinterpretation. Continue reading “Beware a society that lacks clear boundaries” →

Home-invading Hipkins crosses dangerous threshold

Candidates have always been ready to play fast and loose with reality, only too happy to accuse their opponents of having lost their grip on it. Now, however, the reality stakes have suddenly got a lot higher than the true cost of promises. Artificial intelligence is robbing the electorate of the ability to determine what is real and what is not.

Last week an attack ad was released by the right-wing lobby group, the Taxpayers’ Union, depicting Labour leader Chris Hipkins as a home-invading thief. It showed him kicking down doors, frightening an elderly woman, shocking children as he disrupts a family dinner, and stealing fistfuls of cash.

NewstalkZB’s Heather de Plessis-Allan, a steadfast observer of Keep Right signs, thought the ad was “brilliant”. Her Canterbury NewstalkZB stablemate John MacDonald, on the other hand, found the ad “disturbing” because it was authentic enough to trigger adverse psychological reactions in anyone who had been subjected to a home invasion. Their NZME colleague, Shayne Currie, wrote in his Media Insider column that the ad was “part of an increasingly personal and somewhat hostile election campaign”. However, he said on Ryan Bridge Today that, of course, it was labelled as AI and was “plainly satire”.  Across on RNZ, political scientist Claire Robinson told Guyon Espiner it was “confronting” and clearly was not satire because it was devoid of humour and commentary.

Claire Robinson raised the issue of the ad’s AI disclaimer and questioned whether it was some sort of get-out-of-jail-free card (my words). The ad contained this written disclaimer: “The following is an AI-generated fictional dramatisation. It is not real footage”. However, that text is on-screen for less than three seconds and I can tell you that sitting on my couch watching a 32-inch (80 cm) screen, the fine text passes me by. The voiceover says simply: “This video contains AI”.

At the beginning of this month the Advertising Standards Authority issued guidance notes that covered, among other things, the use of AI in advertising. It advised that disclosure should be considered when AI is used to:

  • Create a realistic person who does not exist
  • Replicate or imitate a real person’s likeness or voice
  • Depict events, experiences or outcomes that did not occur
  • Create product imagery that materially differs from the actual product
  • Present AI-generated content in a way that consumers may reasonably assume reflects a real person, event, experience, endorsement or demonstration.

The note goes on to state that disclosure does not remove an advertiser’s responsibility to ensure that advertising is truthful and not misleading. If AI-generated or AI-assisted content creates a misleading impression, the fact that it has been disclosed as AI-generated will not, by itself, make the advertising compliant.

The Taxpayers’ Union ad may have complied with the letter of the code but was it within the spirit of the guidance? I think not. Continue reading “Home-invading Hipkins crosses dangerous threshold” →

Open and shut cases: Execution and name suppression

It is disconcerting, in the course of eating a single breakfast muffin, to be confronted by polar opposites to the concept of open justice.

I begin my day with a quick survey of my emails, and I was alerted to a Substack commentary by David Harvey. I number the retired judge among my friends so, after a quick bite, I read his Halfling column.

It was devoted to executions and, in particular, to the forthcoming death by firing squad of Nidal Hasan, who murdered 13 people at a military base in Texas. Last week, the US Secretary of Defense Pete Hegseth announced the killing would be livestreamed on a public platform.

I was among the many who publicly expressed their outrage at the decision, which is fully endorsed by President Trump. I said on Facebook:

How, in the name of common decency, can the people of the United States continue to allow their once great country to continue its spiral into primitive savagery? I am disgusted beyond belief. New Zealand must treat the video in exactly the same way as it handled the terrorist’s video stream from the Christchurch mosque attacks. Viewing and retaining the material in this country should be deemed illegal.

David Harvey is a learned man, and he argued convincingly in his column that there was nothing in New Zealand law to prevent the execution being viewed live in this country because we lack a statute censoring something that does not yet exist. I do not doubt he is right: The New Zealand censor’s ban on the mosque attack footage was after it had been livestreamed. He went on to argue against the use of prior restraint, on the grounds that “it strikes at the heart of freedom of expression”.

I, too, have an aversion to the use of injunctions and as an editor spent a number of Friday nights fearing a call that might prevent publication of a lead story in the Weekend Herald (the call never came).

I won’t put words in David Harvey’s mouth, but I think it is fair to say that he subscribes to the C. Edwin Baker school of thinking on free-speech absolutism. Baker, an American First Amendment scholar who died in 2009, asserted that the responsibility for harmful speech lay not with the speaker but with the reactions of the recipients. In other words, we must take responsibility for our own actions after we (not the state, or the justice system) choose to receive information. The Halfling column made the point that people could choose not to view the livestreamed execution, and David Harvey would be among those who opted not be watching it.

There is much in Baker’s writing with which I agree, and I have four of his books on my bookshelf. However, on this point I disagree with him and with David Harvey. One of the nice things about friendship is that it is possible to disagree and remain friends.

I subscribe to a school of thought articulated by legal scholars such as Stanley Fish and Jeremy Waldron. Their concern is about the undermining of public good and the assurances that society will protect its most vulnerable. This extends, they say, to harmful communication (which includes images). They maintain that free speech is only one of a number of values that need to be balanced against each other within boundaries set by society. Continue reading “Open and shut cases: Execution and name suppression” →