When the ‘corpus juris’ meets a corpus delicti: The appearance

The Gothic Castle of Law and “Legal Lust” : A Rush to

Judgment?

Many modern scholars, anxious to decenter law, are exploring judicial anxiety over homosexuality in the context of law deploying an unthinkable ‘homogenital’ body in a dominant discourse which has institutionalized heterosexuality as the norm (hetero-normativity). How truly, for instance, Peter J. Hutchings writes of Blackstone’s “Gothic castle of law” – that the criminal law is haunted and inflected by the spiritual (Judeo-Christian theology) such that this spectral element of religious legality has become the real subject of secular Western law via the codification of a historically contingent morality in canon law. [125] This concept has been described as “the predominantly scriptural tradition of modern law”, one which has striven to deny its own “unwritten history of legal affections and repressions as they motivate both judgment and law” – viz., the “fantasmatic structure of the normative enterprise of legality”, in the pithy phrasing of Peter Goodrich and David Gray Carlson.[126] In this paradigm the human body stands before the law as guilty (i.e. as the subject and object of legal lust). In Mieke Bal’s phrase, the body is “the site of lust and the trap of legal lust.”[127]] The Hulme-Parker case is doubtless an exemplum of Pierre Legendre’s notion (as Anton Schutz has it) of “legal history, conceived as a history of reference to the unconscious”[128] , and of his scholarly ‘excavations’ of “a legal theatre of legal cruelty” which exposes “the unexpected, but incomparably intense, psychoanalytic weight or undercurrent from which legal matters cannot be detached or abstracted.”[129 ] From the privileged standpoint of almost fifty years on from the trial it becomes possible to make several observations about the conduct of that event. As the homicide was not technically a ‘sex-crime’, the Crown Prosecutor’s use (read ‘abuse’) of the girls’ presumed lesbianism as a prejudicial weapon against Hulme and Parker (= as a potent emblem of moral evil) was, from an ideal concept of due legal process, a most unfortunate tactic and one which usefully played upon the then very recent Hutt Valley Elbe Milk Bar Gang sex scandal, in which about 59 adolescents (‘milkbar cowboys’) in the stultifying new town of Lower Hutt had been caught engaging in sexual misconduct, at various times, in darkened movie theatres and on the banks of the Hutt River. This shocking outbreak of adolescent hormones led to the New Zealand Parliament establishing, on 20 July 1954, a Special Committee on Moral Delinquency in Children and Adolescents (The Mazengarb Committee, so named because it was chaired by Dr O.C. Mazengarb, QC of Wellington), a matter of days after the committal proceedings for Hulme and Parker. ( It was , incidentally, an election year.) The Committee commenced its evidencial hearings on 3 August and suspended them for the period covering the Hulme-Parker trial (the Committee took the overnight ferry to attend two days of the trial in Christchurch), reconvening on 30 August (the Monday on which Adams J should have put the jury out ) ,by which time the fate of indefinite imprisonment for Juliet and Pauline was published nationally and internationally.[130] Michael Stace (whose father ,Nigel, served on the Committee) undertook a doctoral study of this matter and pointed out that “The Report was concerned with adolescent sexual morality”[131] and concluded his thesis noting that “the criminal legal form is presently more intertwined with social management and the pragmatic accomplishment of social order than with the reaffirmation of fundamental values” and that such management is often effected “through the morality attaching to sexuality.”[132]
The Hulme-Parker trial occurred in this regrettable atmosphere of intense moral fervour and Glyn Strange argues that it was this case which pushed Crown Prosecutor Alan Brown (1897-1961) on to severe mental illness which “completely changed his personality and ruined his career.”[133] A cheerful, positive man, Alan Brown recalls the fictional Indian barrister Sir Darius Xerxes Cama , described by Salman Rushdie as “a staunch Cantabrigian rationalist and an eminent barrister-at-law” who had dedicated his life “to what he called, in an intentionally oxymoronic flash of wit, ‘the miracle of reason’.” [134] Alas, the miracle of reason proved elusive and difficult to master in this case, and Hulme-Parker came up in Alan Brown’s first year as Crown Prosecutor, so that this man of Apollonian reason was faced with the blatantly Dionysian girls. Glyn Strange has noted that Brown “found it difficult to distance himself “ from this spectacular and stressful trial – as the father of two daughters “he could scarcely believe what he was hearing”:
He was so shocked that tears were rolling down his face during cross-examination….Convinced that the two girls were evil, he strove to have them locked away for as long as possible.[135]
Strange adds that Brown palpably suffered from the accumulated stress of past overwork and that “an inherent instability may have contributed, but there is little doubt that it was this case that precipitated his illness”, for after the trial, “Brown’s mental health collapsed.”[136]
As tragic as all this undoubtedly was, it also underlines just how provisional and fallible the administration of justice can become. Had Adams J not so clearly backed up the Crown Prosecutor the defence might have been emboldened to have presented a more nuanced insanity defence (given that the obligation upon the accused in this is only to a standard of ‘on the balance of probabilities’) and with the Australian case-law previously cited. Off-setting the advantage to the accused of this low threshold standard, however, in cases raising specialized defences such as insanity the Crown are granted the privilege of speaking last to the jury (e.g. in being able to call specialist medical evidence in final rebuttal) which places the defence at a distinct disadvantage not typical in many standard murder trials. In addition the defence were doubtless unlucky to have struck F.B. Adams, a patriarchal puritan, rather chauvinist and a man very much stuck in his time, almost certainly reacting with renewed repugnance to the defence’s insistence on the girls’ sexual ‘deviance’. In addition, the folie simultanee concept was almost certainly viewed with deep suspicion – being a relatively new concept of insanity in this neo-colonialist jurisdiction, it would have seemed like new-fangled psycho-babble, especially when the defendants appeared outwardly ‘normal’ in the courtroom. Finally, Adams J’s decision to hold the conclusion of the trial on Saturday August 28 would have even been rather unusual in 1954, calling into question his case-management and prompting the image of pushing jurors to ‘rush to judgment’ on the same day as a major provincial rugby fixture in their city. (The jurors sat for 2 hours 13 minutes and a number of them plus some counsel were seen at Lancaster Park to watch this game.) Such an apparently pressured verdict would certainly lead today’s Court of Appeal to over-turn the verdict and order a re-trial. [137]

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