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

As soon as I started to strike my mother I regretted it, but could not stop then (Parker).

After the first blow was struck I knew it would be necessary to kill her. I was terrified and hysterical (Hulme). [71]
In a case which received tabloid treatment (‘Gym Tunic Murderesses’; ‘Teen Passion Flares’; ‘Juliet and Pauline Are Both Crackers’) it is important to revisit the state of mind of the girls (aged 15 and 16), at least as one of them has tried honestly to reconstruct it. The historical crime novelist Anne Perry [72] (the former Juliet Hulme) has recalled that her friend Pauline was effectively bulimic and suicidal at the time of the Hulme family’s impending departure from New Zealand (early July 1954). Perry recalls of Pauline:
She was literally wasting away. I was afraid that she was seriously ill to the point where she might not survive. I believed at the time that her survival depended on her coming with us….I don’t want in any way to implicate or blame her….But she wished me to join her in this act and I believed that if I did not she would take her own life. I sincerely believed that her life was in the balance. Crazy as this sounds, I thought it was one life or the other. I just couldn’t face the thought of being responsible for her dying. And I made a very foolish choice. [73]
Perry adds that at this time she was being treated for a chest ailment (after full hospitalization for T.B. at the Cashmere Sanitorium) and was receiving respiratory drugs which have since been withdrawn due to the side-effect of tending to warp patients’ judgement.
Peter Jackson applied the clichéd term ‘fatal attraction’ to the girls and that is certainly how film reviewers have treated their friendship. However, film critic Nicholas Reid detected prurience in the film; arguing that “Jackson seems to be challenging us to be as shocked by the lesbian element as New Zealand was 40 years ago.” Reid’s concern was that Creatures consists of “dementia served up as entertainment” and, worse, that Jackson and Walsh “completely identify with the girls’ viewpoint”. [74] Jackson has confirmed the lapsarian intentionality of Creatures – that it is a “murder story about love, a murder story with no villains”, the story of an exhilarating friendship between two very imaginative teenage girls. He claimed, upon the film’s release, that it was time for Hulme and Parker to be viewed as human beings and not as ogres who blackened the reputation of their school and city.[75]
* * * * * *
Psychopathy and Sexual Divergence: Rampageous “Lesbian

Outlaws” ?

The junior defence counsel for the case, the late Brian McClelland, QC stated in 1991 that he always felt that Juliet was schizophrenic; that she was a young woman of astounding conceit which was the key reason “why we couldn’t possibly call her to give evidence.” [76] McClelland noted that the Crown case was reliant on an inference that the girls had a lesbian relationship (this despite Dr Stallworthy’s rejection of any suggestion that physical lesbian expression was a causative factor in the assault) and noted that Juliet Hulme “knew right from wrong…, but she didn’t think the rules applied to her because she was so brilliant.”[77] He added that the girls’ mental state “was our major difficulty” and recalled that the Crown gave the defence alienist, Dr Reginald Medlicott, “a very rough passage. With the wind behind him from Adams, [Crown Prosecutor Brown] made a mess of Medlicott.” Adams J was a staunchly religious man who had no sympathy for the accused and was “an unsympathetic Judge, to put it mildly. He had been Crown Prosecutor in Dunedin for many years. He had written Adams on Criminal Law (1964) and was a clever man but absolutely as hard as nails.”[78] McClelland recounted the bombshell which Adams J dropped at the conclusion of defence evidence: he declared (à la Windle) that he was going to direct the jury that there was no evidence of insanity at all – that , as a matter of law, the defence had not been made out. We hadn’t got any other defence.” McClelland and Peter Mahon (junior counsel for the Crown) appeared before His Honour in chambers to protest the removal of the issue from the jury. Mahon (later a distinguished Justice of the High Court ) told Adams J that the Crown wanted the insanity plea decided by the jury. As McClelland remembered it,

Adams said that he did not mind what the Crown wanted. He was telling [Mahon] that as a matter of law he was going to direct the jury accordingly. I said that evidence had been given which, if accepted by the jury, would mean that Juliet was legally insane. [79]
The two counsel had but one night to reflect on best options. After working late in the Canterbury College Law Library Mahon and McClelland uncovered an English case in which a Judge ruled out the insanity defence on the basis that no medical evidence had been called (which was not the case with Parker and Hulme). Finding it hard to distinguish this negative precedent ruling, a most reluctant Mr Justice Adams allowed the insanity question to be resolved by the jury. Perhaps it was his not so subtle counterplay to convene the court to decide the outcome of R v Hulme and Parker on the day of a major Ranfurly Shield rugby fixture (Canterbury v Waikato), which drew 40,000 spectators and placed the twelve male jurors in the position of reaching their verdict inside 3 hours so that they could attend this ‘greater game’ at Lancaster Park. (His Honour’s summing up took eighty minutes and the jury retired for two and a quarter hours on 28 August 1954 after a six-day trial.)
It is unclear whether McClelland and Mahon consulted Rex v Rivett (1950) 34 Cr. App.R.87, but it is likely to have featured in Adams J’s rationale , as it was then deemed to be “a strong authority” for the proposition that “it is for the jury alone “ to determine criminal responsibility “if there is evidence that there is disease of the mind” and that “It is only when there is no disease of the mind in any way connected with the crime charged that the case can properly be withdrawn from the jury” (Lord Goddard CJ, R v Windle [1952] 2 QB 826 at 829). Adams J must have felt forced to concede that the defence counsel had made out some kind of case for a disease of the mind for the jurors to consider; if so, this is evidence of His Honour’s deep respect for stare decisis doctrine. Lord Goddard had added that “There is no case in the reports in which the trial judge in a case of murder has refused to allow the plea of insanity to be left to the jury” (supra.,829) and McClelland and Mahon clearly must have played on Adams J’s reverence for “the male, legal, ideal” of impartiality (in Helena Kennedy’s words [80]). Lord Goddard also made an extra-judicial comment that would undoubtedly have applied equally to the Hulme-Parker trial: that in Windle (a case dealing in communicated insanity in which no delusion existed) the jury might have legitimately “disregarded the appellant’s confessions”(830); many years later, Pauline Parker (now Hilary Nathan of Rochester, Kent) told her sister Wendy that the killing of their mother was something ‘that grew and grew out of all proportion’, and Wendy noted that it took Hilary “about five years to realise what she had done.”[81] Quite clearly there are cases such as this which strongly support the notion that the M’Naghten Rules ought , at least at times, to be qualified by expert medical evidence. Clearly the defence in Hulme-Parker felt confined by the adolescents’ confessions and so Dr Reginald Warren Medlicott promoted the thesis that Juliet and Pauline were a couple of ’steady-state’ paranoiacs subject to folie à deux – a verdict also agreed to by a medical friend of the Hulmes, Dr Francis O. Bennett (who was a member of, and counsellor for, the Christchurch Marriage Guidance Council and who had interviewed both girls). This diagnosis shackled the defence case to dyadic thinking (fully sane or insane), thus to a full medical and legal insanity plea, whereas other options seem at the very least equally applicable given the girls’ shared delusions of grandiosity. Argument might have prospered in terms of a conjoint masked personality disorder and a narcissistic rage slaughter which resulted from what modern Australian jurists (following Dixon CJ) recognize as a defence of cumulative provocation (i.e., the loss of self-control need not be sudden or abrupt but could constitute a progressive, ramifying degeneration, as happened with Hulme and Parker as shown in the Parker diary). A ‘fugue’ state of non-insane automatism would probably have provided a more finessed account of their actions (a fugue being an interval in which a person is not in control and lacks full volitional agency). Today there exists in British law the psychiatric defence of mental impairment which falls short of medical insanity and which may relate well to the recent defence (in several American states) of Extreme Emotional Disturbance, such that an accused may suffer from an over-riding—albeit not long-lasting – state of ‘psychological freezing’.[82]
The concept of folie à deux has been summarized by the psychiatrist John Saxby as
a mechanism for protection. The coming-together is what counts. Each life plays into the other, each is complementary. The coming together provides the compact, the whole. It may provide a beautiful poem – or a murder. [83]
The pertinence of this definition is clear if we consider Tom Gurr and H.H. Cox’s summation of the violent actus reus undertaken against Honora Parker:
Juliet was sixty yards in front, and still out of sight down the track, when Honora Parker caught sight of a pink pebble, and Pauline remarked how pretty it was. Honora bent down to pick it up. Behind her, Pauline pulled the sling-shot from her pocket, braced her legs, and swung. The brick crashed on her mother’s head, and she collapsed.

And that was the moment when Pauline wished it hadn’t happened. But some force possessed her, drove her on, some inner voice , which commanded: It is too late to stop! She struck again, and again, and now Juliet, panting from a sprint along the track, was kneeling beside her, and swinging the sling-shot. Blood was spurting from twenty-four wounds in Honora Parker’s face and head. Sobbing hysterically, the girls looked at each other and at their victim. The blood was only trickling now. They had beaten Honora Mary Parker to death.

The plan had to be completed.

Blood was dripping from their hands when they ran the four hundred yards [c. 125 metres] back to the kiosk. “It’s Mummy!” gasped Pauline to the proprietess, Mrs. Agnes Ritchie. “She’s terrible! I think she’s dead. We tried to carry her. She was too heavy.”

“Yes, it’s her mother!” Juliet burst out. Her voice was breaking with hysteria. “She’s covered with blood!” Pauline

pointed down the path, in the direction in which the body lay, and as she made the gesture Mrs. Ritchie saw that blood was spattered upon her face. “Don’t make us go down there again!” Pauline breathed.

And then: “We were coming back along the track. Mummy tripped on a plank and hit her head when she landed. She kept falling, and her head kept banging and bumping as she fell.”

“I’ll always remember her head banging”, cried Juliet dramatically.

While Mrs. Ritchie called her husband, the girls went to a sink to wash the blood off themselves, and Mrs. Ritchie heard them laughing hysterically as they did so. [84]
Medlicott ruminated carefully on why the girls were so self-contained, imaginative, selfish and unable to accept criticism, and he asserted that Juliet and Pauline were two people with similar mental weaknesses who suffered from delusions resistant to correction by exteriorized facts or reasoning. Consequently Dr Medlicott urged the view that Parker and Hulme should be viewed as certifiable victims of a folie à deux paranoia of the exalted type. Central to Medlicott’s full insanity diagnosis was what he perceived to be “the extraordinary similarity” of their murder with the Leopold-Loeb case [85] which concerned two mentally gifted Chicago law students and ‘thrill killers’ who, thirty years before, had also betrayed no remorse and who smiled in the courtroom during their trial. This linkage with the Leopold-Loeb case carried a risk which perhaps Dr Medlicott failed to recognize: that the boy-killers had also confessed to their heinous crime but that the folie à deux defence of Clarence Darrow and the alienists made no legal headway with the presiding Judge (Caverly J) who rejected it outright. (Perhaps Medlicott hoped that as Hulme-Parker was a jury trial he could better impress several jurors with this argument; the resistant stance of Adams J in wanting to withdraw this defence could not have been reasonably foreseen.) Helena Kennedy’s observation that “there is a high level of judicial scepticism about psychiatry” and that psychiatrists will come into courtrooms “like lambs to the slaughter if their reports are full of references to ‘cycles of deprivation’ or ‘cognitive dissonance’”[86] is a vital point to consider in assessing the rough ride meted out to Medlicott in 1954. In addition, Kennedy has suggested that Anglo-normative jurisprudence is reluctant to admit “that there is a potential for crime in Everywoman” so that “the investigation and trial of serious crime is not designed with them in mind”, as in the failure to design tighter rules about extracting uncorroborated confessions from vulnerable persons (as inarguably happened to Hulme and Parker) ; and yet, contradictorily, justice processes tend to stress emotional problems ( viz., that females “are mad rather than bad”[87]). This leads to a situation in which, “while women whose behaviour is ‘inappropriate’ are subjected to a misplaced psychiatric labelling, which must be challenged, there is also no doubt that the criminal justice system is misused as a dumping ground for women who should be patients rather than prisoners.” [88] It was Hulme and Parker’s singular misfortune to have fallen somewhere in the interstices between these powerful practices: from a sincere but probable psychiatric misdiagnosis and, consequent upon its failure as an exculpatory device to convince an all-male jury, to have been sentenced to a coercive rather than corrective/therapeutic regime as monsterized ‘lesbian outlaws’, in Jenni Millbanks’ evocative phrase.[89]
As far back as the Leopold-Loeb arraignment of 1924 much debate raged around the question of degrees of mental responsibility/irresponsibility short of legal sanity and, in their case, a dissociation between intellectual and emotional processes common to both youths led alienists to declare that both suffered from Dementia Praecox.[90] The ‘Joint Medical Report’(of defence psychiatrists White, Healy, Glueck and Hamill) stressed that Leopold and Loeb’s pathological “criminal activities were the outgrowth of a unique coming-together of two peculiarly maladjusted adolescents, each of whom brought into the relationship a long-standing background of abnormal mental life” which resulted in an abnormal mixing of fantasy with real life.[91] How unsurprising ,then, that their defence attorney Clarence Darrow described the murder of Robert Franks as “the scheme of disease”, the “scheme of infancy”, “the scheme of fools” and “the scheme of irresponsibility from the time it was conceived until the last act in the tragedy.”[92] It would be difficult not to see the direct applicability of this statement to the Hulme-Parker event, especially Darrow’s assessment that “Their coming together was the means of their undoing” and that this was “the act of two” – that “It was the act of their planning, their conniving, their believing in each other; their thinking themselves supermen.”[93] Central to the Leopold-Loeb defence was the thesis that neither individual could or would have committed such an atrocious actus reus alone but that it was uniquely generated and powered by their “weird, almost impossible...strange and fatal relationship.”[94]
The critical question which Heavenly Creatures lobs back at the trial is whether Hulme and Parker were portrayed – miscast actually – as ‘she-devils’, deadly examples “of all that is rotten in the female sex”[95]. If so, as I think they were, the New Zealand legal system failed them, Gothicizing them as vicious (if not depraved) sane killers who had bathed together, gone to bed together and made no effort to see HM Queen Elizabeth II on the first ever visit of a reigning monarch to the Antipodes. Indeed a Crown medical witness, Dr K.R. Stallworthy, stated to the court that he had no doubt that there had been a homosexual relationship between Juliet and Pauline (which, against his intentions, was viewed by the wider culture as criminogenic, despite a vehement denial of such a union from both women in after years), thereby paving the way for Crown Prosecutor Brown to make his ‘celebrated’ declaration in his summing-up: “These girls are not incurably insane. They are incurably bad.”[96] Technically Alan Brown was probably wrong in his second assertion: Hulme and Parker have certainly reformed and lead normal moral lives now, and the defence doubtless erred in proffering a full insanity claim. Medlicott (who spear-headed that diagnosis) was much closer to the mark when, in 1961, he noted how the ‘abnormality’ of Juliet and Pauline “was proportional to the time spent in one another’s company” and that they clearly “acted as resonators one on the other”. It was Medlicott’s error to concoct an ‘explanation’ of their deviance which coupled their obvious emotional immaturity and the problematic claim of homosexual inclinations (whether as a sincere diagnosis or as a tactic preying on the almost certain abhorrence of a jury of husbands, fathers and uncles towards, in this case, female sexual divergence), arguing that this unhappy cocktail “led to increasing arrogance, self-inflation or omnipotence [and] contempt for others…”[97] For, apart from Medlicott’s linkage between sexual inversion and criminality, he was accurate in observing that the girls “showed great exaltation which continued after the murders” and during their trial.[98] Doubtless this behaviour complicated any temporary insanity defence (if such was seriously entertained). Dr Medlicott insisted that in this case there was “no real question of inducer and inducee”; that their psychoses were identical and “It was a folie simultanee – a disturbance occurring in predisposed associated individuals” but which fell short of schizophrenia. [99] Checking years later with Bernard Glueck about Leopold and Loeb, Medlicott saw the parallel with 1954 when Glueck said he had no doubt that , intellectually, the young men understood the distinction between right and wrong but Glueck’s colleague in 1924, Dr William Alanson White, “felt that there was no adequate feeling attitude towards the wrongfulness of the act.” [100] Similarly, the defence in Hulme-Parker “contended that they were sufficiently disturbed by reason of mental disease to be unable to pass a rational judgment on the moral nature of their act.”[101] Medlicott later asserted that the prosecution feared a wide construal of the M’Naghten Rules and therefore spent “relatively little time” in cross-examination on such tricky points (which makes one assume that they were aware of Porter and Stapleton and did not want to risk opening up a temporary insanity ‘ escape route’ for the teen murderesses) ; instead the prosecutors tried to represent the girls as quite normal criminals driven by an adequate motive. (The miracle is that they succeeded in marketing such an obviously improbable hypothesis, surely a testament to the fervour of Cold War ‘moral panics’ and of New Zealanders’ seemingly innate conservatism, in the 1950s at least.) In his summing-up Adams J acknowledged that jurors might think that the girls appeared to be suffering “from some degree of mental disorder” and added the quite unexceptionable caution: “The question of course remains whether this abnormality of mind does or does not amount to disease of the mind” [102]. According to Medlicott, the judge later delivered a stupefying non-sequitur when he stated that “The law does not relieve persons of criminal responsibility merely because they are insane”.[103] It is clear that the matters raised in this paper were inadequately ventilated in Adams J’s courtroom if he was allowed to make this extraordinary statement unchallenged (alone it should have been the basis for appeal to the NZ Court of Criminal Appeal, given the case law from the 1930s and 1950s to hand in 1954 and also given the exculpatory parameters of s43(2) of the Crimes Act 1908 under which Adams J was to sentence Hulme and Parker).
Medlicott always insisted that Juliet and Pauline were self-judging individuals suffering from progressive and deepening ‘adolescent paranoia’, who acted out of ego-inflation, arrested emotional development (embodied in lesbian affect) and morbid illusions of omnipotence which amounted to a form of full-blown systematized delusional insanity. He might, for all that, have medicalized them in a more reductive manner than this over-driven Freudian analysis – as biologically-determined hysterics, whose internal organs drove them on to commit their appalling act of deviance. Margaret Anne Doody has drawn attention to a gynaecological text in the Hippocratic corpus, ‘About Virgins’, which (in her words) “shows that girls who have not yet conceived are thought of as dangerous creatures” – subject to delirium, epilepsy and suicidal impulses.[104] Doody argues that young undeflowered females were seen by the Greeks as “hysterical (from hyster, womb), since the unfilled womb tends to run around inside the body”, and she quotes Xenophon (in his Oikonomikos) to the effect that they are undomesticated (admés) savages who must be tamed by marriage. [105] Helena Kennedy, as a practising barrister and QC, has drawn attention to a central underlying problematic in British jurisprudence/jurisprurience: namely "Gothic descriptions of the devilish power of women.”[106] Kennedy cites one Hargrave J. Adams (from his book Women and Crime) asserting that, generally, “women have less willpower than men and therefore less self-control upon emergency.”[107] Yet the hypocritical double-standard at the heart of this discourse is revealed in the gender-blind quality of the law regarding provocation defences. Confuting Adams’ stereotype, Kennedy argues that “Women are much less likely to respond to provocation immediately” yet “the legal standards are built upon [male] ideas of instant ignition and a hotheaded rush to action. The spark has to be immediate, an assault which requires self-protection or a blow, a curse, an insult that goes to the core of a man’s being.”[108] Kennedy notes that judges try to conceive of parallel insults against women which may function analogously and I would suggest that an instance of this would be the Slander of Women Act 1891 (UK) which was upheld in the defamation action of Kerr v Kennedy [1942] 1 K.B. 409, which is authority for the legal principle that an allegation that a woman is a ‘lesbian’ is an imputation of unchastity under the aforenamed Act (or, in another reading, this case allowed that a false allegation of lesbianism is a valid ground for the tort of actionable slander).
In 1991 A.E.J. Fitchett insisted, correctly, that Dr Medlicott’s case was rejected but not refuted by the prosecution and argued that the jury, in making a determination of criminal guilt, did not necessarily believe the accused to be sane:
The jury did decide that, if they were insane, their state of mind at the time of the murder did not fit the quite narrow requirements of the M’Naghten Rules.[109]
This cuts to the heart of the matter, given the fact that in this trial the Rules and the Crimes Act 1908 were clearly not given the liberal construal which was possible after Porter and Stapleton and, in particular, given the expansive spirit of s 5(j) of the Acts Interpretation Act 1924. This seems an example of the hegemony of Gothicized law in action, and if not of direct prosecutorial misconduct then of a worriesome compound of judicial hubris/ignorance/fallibility/misfeasance. In either event, it constituted a clear failure to transcend the moral excitability of the times and to have striven to appraise this dreadful outbreak of juvenile violence in a calm and rational spirit based on a full respect for stare decisis doctrine, even if the price of adhesion to that praxis can lock judges out of the wide ambit of discretion which they would prefer to deploy. That said, in fairness to Adams J, the defence line of Medlicott did nothing useful to rebut the sexual paranoia about putative same-sex unions which was rampant at this time in the common-law world (and certainly in New Zealand). As I have already implied, a critical weakness in Medlicott’s diagnosis (from our post-modern perspective) was his bald assertion that “homosexuality and paranoia are very frequently related” (which was certainly the perception among the body politic but probably not a helpful clinical diagnosis of Hulme and Parker, serving only to alienate them further from the already quite remote prospect of public sympathy ) – a thesis which Glamuzina and Laurie claim was “explicitly dismissed” by the prosecution medical witnesses. [110] However Medlicott’s analysis of their “exalted paranoia”[111] and his judgement that in June 1954 both girls “were grossly insane” [112] seems broadly sound. Yet we cannot escape the full force of Leslie Moran’s conception of “the almost complete homosexualisation/pathologisation of justice” in such cases, based on the legal “code of homosexuality as pathology”[113] to which Medlicott certainly adhered and which – doubtless innocently and unwiittingly – fed another tendency identified by Moran: “the ethical impoverishment of law’s violence”[114] as a retributive code. An instance of this oppressive discourse from the period was to be found in the U.S. Navy’s revised indoctrination lectures for women which declared (1953) that “deterioration and destruction of character and integrity are the end results of homosexuality. Even such gross crimes as robbery, suicide, and murder grow out of homosexuality.”[115] And in May 1954 a future New Zealand Prime Minister, David Lange, was to experience, as an eleven-year-old boy, the trauma of a false allegation of indecent assault during a gynaecological examination being visited on his doctor father (Roy Lange). Dr Lange was held in custody for two days and tried by jury and acquitted, but the case testifies to the high-strung tenor of the times (in David Lange’s words, “It took place in a day and age when things were very much different from what they are now” [115a]).
An additional weakness of the Medlicott approach was a crude reference to the youngest Parker child being Mongoloid (whom Medlicott labelled a “Mongolian [sic] imbecile”! ), and to a ‘blue-baby’ which did not live long, as a background which “raises a query as to the stock from which [Pauline] came.”[116] And even before this rampantly insensitive special pleading was delivered, Terence Gresson had begun the defence case alleging that the girls’ “homosexuality was a symptom of their disease of the mind.” [117] Gresson (representing Juliet Hulme) made this statement before he called Medlicott (whom he had commissioned to analyze Juliet) to give evidence, and this strained argument was further emphasized by Dr Bennett when he baldly parroted Medlicott’s line, stating that Juliet and Pauline were “homosexual paranoiacs of the exalted type” (emphasis mine.), turning them into what Robin Wood has labelled as ‘Murderous Gays’.[118] It was little wonder, then, that Dr M. Bevan-Brown (a prominent Christchurch psychiatrist) later recorded his dismay at the manner in which the accused were objectified by their defence counsel – that they “who were the central figures seemed to be treated as robots or dummies” in the process.[119] Glamuzina and Laurie have referred to “the sickness model of homosexuality”(which they emphasize was rejected by the prosecution medical witnesses [120]) and contend that this approach of ‘monsterization’/’eccentricification’ ( an expression of brutal Freudian moralism) “dismisses any real possibility of placing the case within a context of family and circumstance”[121], such as in Bevan-Brown’s verdict that “inadequate nurture” was the primary cause of the tragedy (‘Adolescent Murder’[1955] in his book Mental Health and Personality [Christchurch: Dunford, 1961]). In this perspective this ‘family murder’ was sourced in the dynamics of two interlocked families living under the strain of conflicted relationships and each with their respective secrets. Glamuzina and Laurie insist that “the killing was a consequence of long-standing domestic conflicts and complex circumstances within both families and that these originated largely in the prescriptions of the times.” [122] These commentators suggest that the Hulme-Parker case “created a public association of lesbianism and murder” in New Zealand and express shock that Medlicottian “associations of lesbianism with murder and insanity seemed to have been accepted unquestioningly” by the Hulmes and Parkers themselves.[123] Glamuzina and Laurie point out that the family murder paradigm is, contra Medlicott, the one critical feature which distinguishes Hulme-Parker from Leopold-Loeb: