Kiwi Polemicist

November 21, 2009

• Right to silence under threat

A crucial freedom is under threat. This is from the NZ Herald:

Momentum is building for a law change to prevent families from stonewalling police when a child has been assaulted or killed.

Public outrage over cases such as the unsolved death of 3-month-old twins Chris and Cru Kahui [what public outrage? I certainly haven’t seen any – have you?] has thrust the issue into the spotlight, and the Government will soon have a report from the Law Commission suggesting what should be done.

Meanwhile, a senior Christchurch policeman who has overseen child murder cases has put forward his own proposal.

This would see New Zealand follow in the footsteps of Britain, where parents and caregivers who withhold crucial information can be jailed.

On Wednesday, a coroner’s inquest in Christchurch heard that the shaking death of 7-month-old Staranise Waru in February 2006 remained unsolved as the child’s parents were no longer willing to co-operate with police.

The parents, Nyree Hopa and Robert Waru, repeatedly chose not to answer questions at the hearing into their daughter’s death on the basis that they could incriminate themselves.

Justice Minister Simon Power told the Weekend Herald he had asked the Law Commission to speed up a review of the law that dealt with assault, injury and homicide.

“I understand that the commission’s soon-to-be-released report includes a new provision to better address situations where it’s difficult to identify the responsible offender within the family context and ensure that those responsible for protecting vulnerable children are held to account.”

The proposal put forward by Inspector Malcolm Johnston, of Christchurch, is similar to the culpable parenting law in Britain.

The right to silence would be removed, and parents or caregivers would be forced to co-operate with authorities trying to determine how a child has been harmed, and who did it.

I believe that the right to silence and the right to avoid self-incrimination [1] are essential ways of protecting individuals from the overwhelming power of the state. When the state can compel you to talk under threat of imprisonment there is no privacy left, and the police are experts at twisting what you say. Quite simply, you are screwed. Watch this video and you’ll see what I mean.

If you’ve studied logic you will know that it is impossible to prove a universal negative, e.g. ‘there is no life on other planets’ [2]. It is extremely difficult or impossible for a defendant to prove a negative, i.e. ‘I didn’t do it’. Positives can be tested and proven or disproven, e.g. if I claim that there is a copy of the Eiffel Tower on the moon it is perfectly reasonable for you to ask me to produce evidence to support my claim. Similarly, if the state is claiming that someone committed a crime (a positive) then the onus should be upon the state to prove that its claim is correct.

Removing the right to silence and the right to avoid self-incrimination simply makes it easier for the state to prove its claim that you committed a crime. When the state already has overwhelming power, an unlimited budget, and the individuals involved in prosecuting you have a personal vested interest in proving you guilty (it’s good for their careers), then removing those rights is dangerous in the extreme.

Already there are limited circumstances in which people have no right to silence and must produce documents on demand, but child abuse is the first instance of this erosion of rights which will affect the wider public. The state is using child abuse to erode your rights because beaten children attract public sympathy, and anyone who opposes the removal of the right to silence can be portrayed as protecting child abusers (boo, hiss go the politicians and the media).

Watch for a removal of the right to silence in other situations. Removing the right to silence in cases of alleged child abuse is simply a way of putting the frog into cold water before turning up the heat.

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1. As far as I know NZ does not have a legally protected right to avoid self-incimination. Here I am taking it as an implied right that is subsequent to the right to silence.

2. For a variety of reasons I believe that there is no sentient life on other planets, but I never claim that this is proven or provable.

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