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

WHEN THE ‘CORPUS JURIS’ MEETS A CORPUS DELICTI: The appearance

and representation of Law's violence as purveyed in the Hulme-Parker trial

[1954] and narrated in Peter Jackson's Heavenly Creatures [1994].

Bruce Harding
[In] th’Antipodes of England.

The people there are contrary to us,

As thus: here, heaven be prais’d, the magistrates

Govern the people; there the people rule

The magistrates.
(Richard Brome, The Antipodes [London, 1640], Act 1, sc.3)

The tragic killing, in 1954, of a New Zealand woman by her daughter and that daughter’s well-connected friend has been immortalized in the 1994 film Heavenly Creatures (screenplay by Fran Walsh and Peter Jackson) which was itself inspired by a 1991 non-fiction study (Parker & Hulme: A Lesbian View). In fact that book had first led to Michelanne Forster’s commissioned play Daughters of Heaven (1992), and the case, which was linked at trial to the 1924 Leopold-Loeb murder[1] , had received even earlier treatment in the form of a chapter in Tom Gurr and H.H. Cox’s Famous Australasian Crimes (1957) and in their 1958 novel Obsession (which was clearly inspired by Meyer Levin’s novel Compulsion [New York: Simon & Schuster, 1956] which dealt with Leopold and Loeb).[2] These background details are important inasmuch as the core thematic of Heavenly Creatures is a bold filmic re-statement of the defence argument in the Hulme-Parker trial that both girls suffered from shared exogenous paranoia and communicated insanity when they ‘bricked’ poor Honora Parker to death in Christchurch’s Victoria Park on Tuesday 22 June 1954.[3]

Although Peter Jackson elided the legal process and any representation of matters of arrest, confession and trial from Heavenly Creatures, his Silver Lion Award-winning (1994 Venice Film Festival) movie constitutes a little-appreciated act of cinematic rebellion, a recursion to and radical re-thinking of the judicial management of that deeply troubling case. In short, the argument I shall pursue in this paper is that Jackson and Walsh’s screenplay proffered a revisionist cinematic reconstruction of the whole Hulme-Parker affaire (in both senses of that term) in order to challenge the judicial handling and guilty verdict of the all-male jury in this matter. To underwrite this claim, some reasonably detailed discussion of the state of criminal law and operational jurisprudence in New Zealand at the time of Pauline Parker and Juliet Hulme’s Supreme Court trial in August 1954 is in order.
Criminal Law Desiderata
New Zealand's criminal law is totally reliant on codification (all offences being

statutory in this jurisdiction), a process which started with the Criminal Code Act

1893, which transmogrified into two successor statutes: the Crimes Act 1908 and the

revisory Crimes Act 1961. Consequently no convictions are permissible for old

common- law offences, although some common-law defences survive, such as that for

insanity (per M’Naghten's Case [1843] 10 Cl. & Fin. 200). The Criminal Code Act

1893 abolished the common-law distinction between felonies and misdemeanours in New Zealand.
The doctrine of clear homicidal intention is founded in the leading English case of

Woolmington v DPP [1935] AC 462 (All ER Rep 1 [HL]), which firmly established the presumption of defendants’ innocence in criminal trials and inscribed it into English common law. The three requisite elements of an indictable crime are: (1) the actus reus (=the offending/injurious physical event); (2) the mens rea (the mental element of guilt resident in the psyche of the accused at the time of the commission of crime(s) ); and (3) the absence of any relevant defence (e.g. infancy, self-defence, provocation, insanity or compulsion) which would demonstrate the absence of a blameworthy, evil mind and, therefore, negative any notions of criminal liability.
Quite obviously the principle of concurrence (the scintilla temporis) between the actus reus and mens rea applied, prima facie, to the legal minors Juliet Marion Hulme and Pauline Yvonne Parker when they mortally wounded Honora Parker on 22 June 1954, but their liability was far from absolute. Indeed, it was problematic inasmuch as the insanity

defence was arguably applicable to them and, additionally, the requisite psychic

criminous intention or 'knowledge' (viz., the mens rea) only seems to have

been consciously present after they jointly performed the gruesome (and inarguably

criminal) actus reus against Mrs Parker/Rieper. This is vitally important given that ,

at law, the accused may even act with an apparent mens rea and yet have felt no moral

guilt in the lead-up to - and in the execution of -- ,say, homicide. I would suggest

that neither Hulme nor Parker had an inferable 'guilty' state of mind, even though

there was demonstrable evidence both of intent and 'foreseeability' in Pauline

Parker's pre-event diary entries. The legal fault principle operative in the New Zealand jurisdiction is that mens rea "is a concept independent of knowledge of illegality or immorality of motive" but that there is "no criminal liability if a 'guilty mind' exists only after the actus reus."[4] For mens rea to be established at law the key requisites are intent, knowledge, or recklessness of the physical ingredients of the actus reus, including wilful blindness or indifference. The core issue in the Hulme-Parker case was the degree of applicability of Havelock Ellis' definition of the insane criminal as a person who, "being already in a condition of recognizable mental alienation, performs some flagrantly anti-social act."[5] The reason why this is so is connected with the fact that New Zealand has no equivalent of s2 of the Homicide Act 1957 (U.K.) with its statutory doctrine of legally

'diminished responsibility' which has reduced the importance of the insanity defence

in the United Kingdom. While, ordinarily, Hulme and Parker would have known that

murder is an intentional act of law-breaking, there was strongly suggestive – if not

exactly probative—evidence at their trial that both young women were so mutually

enwrapped in a complex matrix /compound of fervid reality-denying fantasy and

psychic stress that Elllis' concept of mental alienation would have done better justice

to their conjoint frame of mind. This signals the end of a régime which arraigned defendants and deemed them culpable on the strict grounds of causation with no element of intent being factored into the judgement. Sir Edward Coke distinguished between unlawful forms of killing via the concept of the unclergyable felony of culpable homicide involving "malice forethought [premeditated killing] , either expressed by the party or implied by law"(The Third Part of the Institutes, supra., 47), a concept based on a series of decrees and statutes of 1389, 1496, 1512, 1531 and 1547 which gradually developed the formula of "wilful Murder of malice prepensed."[6] Thus an historic distinction existed between the felony of deliberate killing without justification and killing which has occurred without the sine qua non of culpability, par malice prepense (premeditation). The "most serious form of homicide known" to 12th century jurists such as Ranulph de Glanvill was called the murdrum, a voluntary and secretive act of prepensed murder.[7] Clearly the awful crime against Honora Parker seems to dovetail well with this historic definition both as to the secluded location (a shrouded path in Victoria Park) and to the willed and pre-planned nature of the girls' collective attack upon the hapless parent, but the unresolved problem with this crime lies—even with due deference to the doctrine of res judicata—

in determining whether their conjoint actus reus conformed to the dicta of express malice (here, a killing in the absence of provocation) or to the norms of subjective recklessness (as the conscious taking of an unreasonable risk when "the accused had a conscious appreciation of the relevant risk"[8]) or to shared insanity (folie à deux). Recklessness seems applicable but in a limited context: clearly not in terms of an intention to cause general bodily injury with a careless attitude about whether death might ensue but in the sense of confused adolescent foresight, in which the emotionally immature defendants inflicted serious bodily injury which they knew was likely to cause death.[9] I find the general (=non-legal) connotations of the concept at least suggestive given their symptomatology, sharing a clearly fantastic state of mind and location within an aggressively hetero-normative culture (both of which would generate counter-therapeutic sequelae). The defence psychiatrist, Dr R.W. Medlicott, asserted that Hulme and Parker “showed gross exaltation” which continued after the murder and during the trial, adding that “In spite of their intelligence and lack of scruples the girls’ murder was particularly stupidly planned.” [10]

Francis B. Sayre reminds us, critically, that malice aforethought "is not, strictly speaking, mens rea in the sense of the underlying mental element upon which criminality in general is based" but that "if by mens rea we mean whatever mental requisite is necessary for any particular crime, malice aforethought may constitute one form of mens rea", as one way of determining "a precise intent at a given time."[11] Before discussing the thorny parameters of the 'precise intent' of Hulme and Parker, it may be worth citing Professor Kenny who attempted, famously and unsuccessfully, to proffer a nuanced reading of degrees of mens rea, in terms of 'more guilty' and 'less guilty' states of mind.[12] Sayre's response to this was to acknowledge that there are different kinds of requisite states of guilty-mindedness affixing to particular crimes, arguing that mens rea covers "whatever mental element is necessary to convict for any particular crime" and ,therefore, that "there is no single precise requisite state of mind common to all crime."[13] Sayre concluded that there was a pressing need to replace the old canon law/ius commune (common-law) notion of mens rea with this "new conception of mentes reae." [14] Andrew Simester and Warren Brookbanks point out that mens rea "is not normally concerned with the attitudes of defendants; it is concerned with what they intended, knew, and did not know", which is why neither worthy attitudes nor good motives provide defences under the criminal law.[15] They add that Woolmington's Case established that the prosecution/Crown "has the burden to bring evidence which prima facie proves all actus reus and mens rea elements of the offence beyond reasonable doubt “, while the defendant “has an evidentiary burden to raise any evidence which suggests the possible availability of a defence..."[16]
The Hulme-Parker case proceeded on the statutory presumption of sanity (s23 Criminal Code Act 1893 and s43 Crimes Act 1908) and upon the settled law that foresight of wrong-doing involves greater culpability than negligence or recklessness. Glanville Williams has expressed the legal penumbra surrounding the doctrine of culpable intervention: that if the defendant is an adult and is "of sound mind and is not acting under mistake, intimidation or similar pressure" the intervention/involvement is his/her own responsibility and "is not regarded as having been caused by other people."[17] The status of Pauline Parker and Juliet Hulme as marginal young adults and the evidence suggesting that their mental state on and immediately before 22 June 1954 was hardly ‘sound’ problematizes the trial’s outcome and brings to mind Leslie Moran’s allusions to Foucault on law’s intimate relationship to “a bio-politics of social control” -- a schema in which ‘biopower’ regulates and controls human subjects for state-centric goals. [18] Moran explores how law enacts its own peculiar and licit violence and can operate as “an arbitrary practice of domination rather than a practice controlled by language, rule and reason”, especially in cases involving the conjunction of sexuality and inter-personal violences.[19] Citing Deleuze and Derrida, Moran unpacks the logic of a ‘Gothic’ legal praxis which “has come to resemble a practice of unruly violence”, both conceptually, as a dominant social discourse (imposing “an idiosyncratic view of the world and its enforcement by way of arbitrary decisions”) and through the “more familiar violence that is punishment.”[20] Moran has written of legalized violence “as physical and conceptual domination and a practice of pain through punishment” imaged as a régime of ‘good’, legitimate and curative violence and as public vengeance [21] , adding that the judicial “Production of the guilty as victims draws attention to the importance of public vengeance and recognizes the practice of law as a sacrificial practice” [22] and, in this case, anything but a therapeutic jurisprudence.
The ‘Paramodern’ Disruption and Enigmatic Women
Arkady Plotnitsky and Stephen Barker have written of an interrogative critique of the ‘fragment-heap’ of the paramodern textual discourse and have reminded us of the processes of parodic-postmodernism and hyper-poetics, in which the meaning, style and philosophic project of modernity are disrupted—a textual strategy which inevitably includes the law, as a subject-centered modernism built upon notions of stable, immanent meaning. Barker’s reminder that madness lies at “the very core of the paramodern disruption”[23] is the place to provide an entrée into a discussion of the Hulme-Parker case, in which the defence unsuccessfully tried to persuade the all-male jurors as to the pertinence of the insanity defence. This précis of the paramodern project fits very well with Alison Young’s investigations into the limitations of the social and legal Imaginaries in her book Imagining Crime: Textual Outlaws and Criminal Conversations (1996), particularly in regard to female involvement with crime. Such a critical interrogation is especially relevant in terms of a Postmodern Criminology and in dealing with a startling case of joint female homicide which, in effect, conforms to a horrific instance of thanatography (a narrative of death). Both Juliet Hulme and Pauline Parker were clearly ‘textual outlaws’ in Young’s terms, and as she explores the largely unacknowledged crisis rupturing “the crimino-legal complex” /tradition [24], Young exposes the phantasm of a purely rational criminal law which “pretends a purity of disciplinary constitution untouched by issues of policy or theory (or, at most, permits them a secondary place outside the rationality of law)”.[25] This paper explores both the willed constructedness and the later deconstruction of that tradition: (i) the construction by the ‘Fathers of the Law’ such as the presiding trial judge and legal luminary Sir Francis Adams (author of a most influential textbook on criminal law in New Zealand) and (ii) the unpacking of the need for what Young has defined as an other (alter) justice by the 1991 book Parker & Hulme: A Lesbian View (Glamuzina and Laurie) and the Walsh-Jackson screenplay of Heavenly Creatures.
To that originary ‘boa-deconstructor’, Mary Wollstonecraft (1759-1798), ‘madness’ might have been “only the absence of reason”[26] (a comforting eighteenth-century formulation) when, in fact, there was reason aplenty in the furious ragings of Pauline Parker and Juliet Hulme: but it was reason of the kind stereotypically formulated by Freud for criminous women (viz., a libidinal blockage which has generated hysteria). The sense of Woman at the mercy of a half-understood compulsion/ “phrenzy” arguably dates back to Seneca’s Medea and to what might be called the Macbeth syndrome, in which the three goddesses of destiny at the centre of Macbeth’s delusional snatching for the Crown –and Lady Macbeth herself—exercise variant forms of Womanpower which some critics have blithely identified with a spirit of rampant evil. Alison Young insists that Woman has always been constructed and constituted as an enigmatic “surrogate for the originary outlaw of the community”, whose cognitive and behavioural deviance provides that “identifiable subject which presents a threat to the [law-abiding] community” and who must be sacrificially punished as “deserving violence in some way, as having brought the community’s [retributive] violence upon it through some fault or flaw of its own.”[27] This conceptualization well befits Parker and Hulme as cultural outlaws and moral deviants of the first order as does viewing them as exemplars of Marilyn French’s notion of the ‘outlaw’ feminine principle which conjures up deeply flawed beings “associated with darkness, chaos, flesh, the sinister, magic and above all, sexuality.”[28]
In attending to the legislative framing of punishment regimes Young insists that “As an event, crime is…always textual, as are the outlaws symbolically excluded from the community.”[29] By this Young means that crimes are narratively coded, creating “a sign, speaking of that which is most reverenced (as essential for the founding of the community and its criminal contract) and most reviled (signifying the flesh, the impulses, blood, disease)” as the unpresentable.[30] Certainly this is how Hulme and Parker were ‘textualized’ and narratively framed during their 1954 criminal trial: in terms of Kristeva’s subjects becoming abject (immoral, sinister, scheming and shady). Young insists that Woman has become the central enigma of a masculinist criminology, and when she writes of the invisibility of Woman in this power-discourse, of “femininity as obscurity” which must be decoded and of women being “represented as analytic opacity”[31], this provides a chilling frisson in regard to Hulme-Parker and it returns us to the Macbeth syndrome and the suggestively connotative notion of females ‘killing swine’[32] ( read here as an act of iconoclasm against a valorized but sexist male politico-legal discourse).

This feminizing of evil trope, when linked to the terrors of a paramodern textualism, remind us of the force of Jeremy Bentham’s point, in Martin Kayman’s words, that “in the law at least, the indeterminacy of language serves only the interests of those in a position to interpret it”[33]—and, I would insist, those in a position to enforce that interpretation, who historically have been men. But let us not lose sight of the configuration—or tropology—of the criminal femme and of her criminality which returns us to Alison Young’s contention that criminal women are monsters in the Westocentric social imaginary—that femininity “is constructed as a paradox, or perhaps an aporia”, a collapse of meaning , which explains why criminology “seeks to keep at bay the fluidity of Woman.”[34] Young insists that the Freudian vision of woman as an hysteric was premised on a Lombrosian stereotype of female nature as labile and unstable so that “Woman, the eternal dark continent of Western culture, is the blind spot of criminological theory”.[35] The privileging of rationality as a ‘male’ attribute has underpinned all claims to a Scientia Iuris (legal science), such that women “have traditionally been defined as suspended between matter (the body, nature, animality) and reason”, leading to the “constantly re-enacted incompatibility of Woman and Reason” which has linked to a prevailing ideology of biologism (making masculine biology normative in the crimino-legal complex and its doctrines of mens rea and criminal responsibility/liability).[36] It is my claim that Pauline Parker and Juliet Hulme suffered from these debilitating and limiting definitions of ‘agency’ during their arraignment and trial in August 1954 even though, ironically, they were ham-fistedly miscast as fully rational, calculating killers. Young has alighted on the potency of a string of bio-psychological theories for girl delinquents, all of which are premised on the notion of women as exceptions to masculine law. The base assumption which the Parker-Hulme deviant outbreak challenged is that authentic femininity entails conformity to social and legal rules—a conformism grounded in the putative biological and heteronormative telos of the female. If this is accepted, it becomes easier to understand why defences of provocation in, say, rape and murder are configured in terms of core doctrines of ‘male’ behaviour—assumptions that “often operate to mitigate guilt or exculpate a male offender”, permitting outbreaks of male anger provoked by the behaviour of women, which Young has quite properly defined as “the representation of masculine (hetero)sexual desire in criminal law.”[37] The upshot of such heavily masculinized (gender-inflected) conceptions is classical criminologists’ “conception of Woman [as] a ‘(mis)conception’” and an image of criminology “as a discursive community founded upon the textual exchange of women among men”[38], which is as embracing a description of the trial of Parker and Hulme as one is likely to find. The congruent—if unvoiced—assumption is that female deviancy exhibits a far greater pathology than male infractions, leading to “disquieting discriminations in the treatment of male and female offenders.”[39] As Young so eloquently reminds us, the ‘sexed’/gendered body is always “split by the regime of sexual difference” so that the feminine body “is always that which interrupts, which breaks through the smooth surface of the neutral mask of the masculine.”[40] This is the place to heed the reminder of Peter Goodrich and David Gray Carlson that the advent of postmodernity has signalled the “collapse of the concept and practice of any singular or sovereign jurisprudence” and that “Behind the mask of reason, the unconscious plays the role of law and emotion determines both judicial judgment and the subject’s deeds.”[41] There is simply no better case to demonstrate the residuary truth of these claims than that explored in Heavenly Creatures. The use of psychoanalysis to reconstruct the positive imaginary—or fantasmatic structure—of Western law lies well beyond my competence, but one can readily concede the pertinency of gaps, slips and condensations in the legal record as constituting potent expressions of a textual unconscious, “of an unwritten history of legal affections and repressions as they motivate both judgment and law”[42] which often-times generates a theatre of legalized cruelty. Peter Goodrich has noted that “the literary critic engaged with law must read the literature of law through the evidence of its absence, through its repetitions and through the failures which indicate the return of that which is repressed in law”[43], and this well defines my project in this paper, especially as Goodrich writes of the tradition of legality representing “a peculiar fiction of institutional truth.”[44]
This is the point to be reminded that Julie Glamuzina and Alison Laurie have maintained that the Parker-Hulme case did much cognitive damage in New Zealand: their relationship “was seen as perverse because of negative social attitudes towards lesbians, and in turn the case helped to construct a new myth of lesbianism in New Zealand, connecting lesbians with murder and insanity.” [45]
Provocation, “Phrenzy” and the Insanity Defence: Australasian Case Law ( after M’Naghten’s Case [1843])

Since the Hulme-Parker trial, New Zealand case law has refined provocation defences in the context of manslaughter, notably in the case of R v McGregor [1962] NZLR 1069(CA), in which the appellate judges observed that “special difficulties” arise when “purely mental peculiarities”(such as a compulsive, disordered personality) are relied on in order to exculpate a defendant. Inarguably Hulme and Parker felt extremely provoked and threatened by Mrs Parker’s several actions and zeal in working to separate them. Excessive emotionalism or paranoid disorder may constitute a valid ‘characteristic’ in justifying violent responses to provocation but ,in fact, these are rarely accepted in cases dealing with manslaughter under provocation.[46] Gerald Orchard has noted that if the relevant characteristic cited “is no more than evidence of a short temper or unusual pugnacity” this will not serve an exculpatory purpose in the New Zealand judicial environment.[47] There remains the excuse of obvious youthful immaturity linked to the criterion of the power of self-control (the standard ,predictably, being that of an ‘ordinary person’ of the defendant’s age), but these considerations were not normative in New Zealand’s legal culture in the 1950s, which tended to operate within the simple dyads of a ‘Gothic’ jurisprudence. In addition, J.H. Baker has noted that, historically, the common law proffered a necessary régime of “afflictive punishment” but that its legacy was a criminal law which “fluctuated from almost ineffectual leniency to brutal severity.”[48] Few would now doubt that the justice meted out to Hulme and Parker tended towards the brutal, although in 1954 many Kiwis would have felt that the girls were treated leniently in escaping execution, given the consensus view – as characterized in the media – that their relationship was “a sexual perversion which attacked and undermined both the prescribed moral codes and expected gender roles” of the time, involving two “adolescents out of control.”[49] Legally, Hulme and Parker were probably guilty, at worst, of culpable ignorance and temporary delusional insanity in a case which starkly demonstrated the empirical unsoundness of trying to distinguish meaningfully between malice (=cold-blooded killing) and chance medley (=hot-blooded homicide), as the killing of Honora Parker elided this seemingly neat and logical distinction, as there was a compound, a fateful coming together, of elements of situational provocation, clear – but fervid – foresight and an emotionally-charged melée on 22 June 1954.

The M’Naghten case-law ‘Rules’, as set out judicially in 1843 by the then Lord Chief Justice (Tindal), were incorporated into the Draft Code of the English Criminal Bill Commission (1879) and s22 of that document was transferred “in almost identical terms” into New Zealand’s Criminal Code Act, creating New Zealand’s insanity defence, which “has been relatively unaffected by subsequent revisions of our criminal legislation.”[50] That fact is itself problematic inasmuch as the Rules “do not address the issues of lack of control, irresistable drives, or impulses”, so that without clear evidence that the accused was suffering from a strikingly obvious mental disease at the time the killing occurred, these kinds of claims will fail as defences.[51] This was the precise legal lacuna which ensnared Hulme and Parker given the statutory presumption of sanity in the operative legislation under which they were tried and sentenced (s43(1) Crimes Act 1908) and because of the absurd situation in which ‘common-sense’ Victorian rules on complex psychiatric matters still held full legal sway in New Zealand fifteen years after the death of Sigmund Freud. [52] This ‘hangover’ of obtuse legal positivism was recalled by Dr C.E. Beeby (the Director of Education, NZ, 1940-60) when he was a young clinical psychologist (during the 1920s) and was called upon to examine two adolescents charged with arson. Beeby tested their intellectual and educational abilities and Professor James Shelley “dealt with their emotional problems”. Beeby recalled that “As might have been foreseen in those days, our evidence made no impression on judge or jury…”[53a]
The insanity defence was always restrictive, as evidenced in the case R v Hadfield (1800) 27 St Tr 128, in which James Hadfield , a silver spoon-maker from Middlesex, was put on trial for high treason for firing a pistol at King George III (attempted regicide) at the Theatre Royal, Drury Lane and was acquitted by a jury who judged that he had suffered from a delusion which prompted his act. After evidence of his mental agitation and discharge from the army on the ground of insanity were read into evidence, the jury found Hadfield “Not Guilty; he being under the influence of Insanity at the time the act was committed” (supra. at 1356).This was a landmark case in English jurisprudence, providing for the first time a special ‘not guilty’ verdict and creating, ipso facto, a new category of offenders: ‘criminal lunatics’. The ratio scripta (written reasoning) of this case was provided by Sir John Mitford, the Attorney General , who gave a full explication of the settled law of the realm, which was premised on notions of will, intentionality and the degree of discretion possessed by accused persons at the time of offences. As Sir John (later Lord Redesdale) expressed the matter: