Barnes, Gail --- "Private violence, gendered justice" [1999] AltLawJl 12; (1999) 24(2) Alternative Law Journal 67

When I sit back and reflect, I felt I was there on both legal and moral grounds ... What I did was not right or wrong. What I did was for the ultimate protection of those three young girls. I was prepared to say or do anything in the world to ensure the safety of those three girls.[18]

It would appear that the jury believed Morgan was not suffering from diminished responsibility at the time of the shooting and that his actions were justified and therefore excusable. After the verdict was handed down, Morgan declared that finally ‘the welfare of the girls is well and truly secure’.[19]

Gendered justice

Juries have the capacity to reflect community values, including the emotions and prejudices of contemporary society. According to Mark Findlay, the Deputy Director of the NSW Institute of Criminology, the jury wanted to acquit Morgan ‘because of the nature of both victim and accused — who was doing the killing and who was being killed’.[20] Findlay also said ‘juries might think if they hadn’t done what they had, then justice wouldn’t have been done. Juries don’t have confidence that judges will sentence properly’.[21]

It is a deep-seated assumption in patriarchal ideology that men are rational and women are emotional. Morgan’s action was seen to be a rational and therefore a reasonable response to the circumstances. Yet, when a battered woman kills her husband while he is asleep or with a degree of premeditation, her lethal assault is never totally justified. Rather, it is most often interpreted as an emotional loss of self-control or as a vindictive act of murder. In some cases it may be perceived as the result of a psychological abnormality. In the rare instances where battered women have made a successful claim to have acted in self-defence, they have had to prove that they suffered from BWS. As already noted, this is a controversial defence which, some claim, pathologises the woman in question.

Morgan’s position as a police officer, and an Egyptian-born patriarch who heads a large extended family, worked in his favour. His overt masculinity proved to be advantageous. He was not pathologised. Apparently the jury saw Morgan’s lethal action as ‘reasonable’.

Morgan’s position in the community meant that he fitted within the dominant construction of masculinity. What if Morgan had been a homosexual, a drug addict or even an Aboriginal man? Would the jury still have seen his action as reasonable? It is possible that if Morgan had been other than the dominant construction of masculinity he would have been marginalised, distanced or even feminised so that his actions were constructed as irrational or unjustified.

To many in the community Morgan was a hero with his agency clearly intact. In just the first few days of Morgan’s trial, and in an unusual display of approval, several jurors were reportedly nodding to him in acknowledgment as he entered the courtroom.[22] One morning during the trial a group of supporters sat outside the court with banners saying, ‘Justice has already been done. Thank you Said Morgan.’[23] In addition, a spokesperson for the organisation ‘Mothers of Child Abuse Victims’ reportedly described the Morgan verdict as ‘great’ and ‘the ultimate justice’.[24]

As further evidence of the public support for him, Morgan was invited to speak along with State MP’s at a vigil outside State Parliament for the victims of child abusers.[25] After the trial Morgan was even confident that he would be readmitted to the police force.[26] However, even though Morgan was acquitted of any wrongdoing by the court he has been refused readmission to the force. Police Commissioner Ryan said ‘there were sufficient other issues outside the actual finding in the court which brings into question the suitability of [Mr Morgan as] a police officer’.[27]

Exemplary masculinities

Paradoxically, the Morgan case comes at a time when community attitudes have been moving toward the Right with calls for tougher penalties for crimes. Since the early 1990s governments have reflected this change with new laws to reduce judicial flexibility and encourage a ‘tough on crime’ attitude.[28] At the same time people see the criminal justice system as not doing its job adequately so there has been a rise in the acceptance of vigilante behaviours and attitudes, especially against particular offenders.

An article in the Weekend Australian referring to the Morgan case states ‘A detective turns himself into Dirty Harry, blowing away an alleged paedophile who is out on bail’.[29] This symbolism of masculinity was a common occurrence with many newspaper stories at the time of Morgan’s trial also referring to gun-toting Hollywood heroes when they were reporting the case. A vast array of popular culture has depicted men, particularly rogue cops, taking the law into their own hands and killing the ‘bad guys’. Indeed, these rogue cops rarely, if ever, face prosecution or even disciplinary action.

Connell argues that the production of heroes or ‘exemplary masculinities is integral to the politics of hegemonic masculinity’.[30] He claims that culture is one of the disciplinary practices which sets the standards of the gender order and discredits those who fall short. According to Connell, the importance of exemplary masculinities has increased over the last 200 years with the ‘decline of religious legitimations for patriarchy in the west’.[31] It must be noted that these icons of ‘exemplary masculinity’ are still mostly white, middle to upper class and overtly heterosexual males. It is virtually impossible to find any comparable images of women. Certainly Heather Osland was not portrayed in popular culture as a heroine who had rid society of yet another menace.

According to Andrew Goldsmith, Professor of Legal Studies at Flinders University, ‘one of the strategies of the Morgan defence was clearly to play up the supposed heinousness of the person who was killed’.[32] The deceased was an alleged child molester, a paedophile. Since the Wood Royal Commission findings into paedophilia, Australia has been experiencing heightened moral panic in relation to paedophilia. A survey conducted by Roy Morgan Research[33] found that rural Australians rated ‘lenient sentences for child molesters/sex offenders’ as the greatest problem facing the nation, and ‘trusted people sexually abusing others’ as the sixth worst. Amongst city people these issues rated seven and six respectively.

Connell suggests that:

Hegemony relates to cultural dominance in the society as a whole. Within that overall framework there are specific gender relations of dominance and subordination between groups of men.[34]

Paedophilia is aligned with a subordinated form of masculinity which is disparaged by those subscribing to dominant constructions of masculinity. Connell posits that within dominant constructions of masculinity the use of force and even violence is accepted as a means of asserting and maintaining dominance. As a result, it appears that the jury thought it was reasonable for Morgan, an exemplary male, to kill a man who was a suspected paedophile.

It is also possible that in David Albion’s case the jury perceived his lethal use of violence as a reasonable assertion of his masculinity over a violent and oppressive step-father. According to Salom, the jury which acquitted Albion bought him a chocolate-coated Father Christmas wrapped in tinsel.[35] The gift suggesting empathy for a young man who has suffered.

Naylor suggests that male violence is seen to exist on a continuum. According to Naylor:

... male violence is less unexpected [than female violence]. It is explicable within the framework of ‘normality’. This is not to deny that male violence, especially killing, is censured, but the censure is ambivalent. The soldier defending his country, or the Indiana Jones-style adventurer has a positive image, but one could also think of the ambiguous public response to the Yorkshire ripper some years back, and to characters such as Rambo and Mad Max.[36]

Yet, if a woman kills a man, her partner, who has abused her and/or her children, the courts rarely support or excuse her action. Lloyd[37] argues that women who kill are seen as ‘doubly deviant’. That is, they are seen to have transgressed the criminal law and also the ‘natural’ law of ‘proper womanhood’ which suggests women are ‘passive carers, not active aggressors’.

The battered woman who kills has stepped outside the patriarchal order and thus her actions are perceived as a threat to hegemonic social relations. Connell suggests that patriarchal definitions of femininity result in a ‘cultural disarmament’ of women.[38] This disarmament effectively precludes women from legitimate forms of self-defence especially against the authority of a dominant husband.

The trial and eventual acquittal of Said Morgan and David Albion exists in stark contrast to that of Heather Osland and many other battered women who have killed. Morgan was portrayed within legal and public discourse as a hero, an exemplary male whose actions were rational and whose acts could be legitimately conceptualised as self-defence. Yet, Heather Osland’s involvement in the lethal assault on a brutal husband and father from whom there was no escape was seen as totally unreasonable and unjustified. At the same time, David Albion’s lethal action was justified by the court. It seems that battered women are expected to be killed rather than use lethal action to defend themselves.

References

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[1] Osland, H., ‘Heather’s Story’, Release Heather!, p.12, The Women Who Kill in Self-Defence and Release Heather Osland Campaign, Brimbank Community Centre, 822 Ballarat Rd, Deer Park Vic. 3023, tel [phone].
[2] Osland, H., above.
[3] Facts of the Osland case were cited online at
http://www.austlii.edu.au/au/cases/cth/high_ct/1998/75.html, 3 January, 1999.
[4] Tippet, G., ‘A marriage made in hell’, Age, 21 February 1998, p.3.
[5] http://www.austlii.edu.au/au/cases/cth/high_ct/1998/75.html, p.3.
[6] Salom, T. ‘Father killer cleared’, West Australian, 13 December 1996, p.3.
[7] http://www.austlii.edu.au/au/cases/cth/high_ct1998/75.html, p.30.
[8] Facts of the High Court appeal were cited online at http://www.austlii.edu.au/au/cases/cth/high_ct/1998/75.html.
[9] Information pamphlet from the Release Heather Osland Campaign, January 1999.
[10] Walker, L., The Battered Woman, Harper & Row, New York, 1979, p.55.
[11] The use of BWS has generated considerable debate among feminists as to its usefulness or otherwise for battered women who kill. Some commentators argue that BWS pathologises battered women and others see it as a way to explain battered women’s actions. See the debate between Julie Stubbs & Patricia Easteal in Current Issues in Criminal Justice for the two sides of this argument.
[12] Osland, above, p.13.
[13] Facts of the Morgan case were cited online at
http://www.austlii.edu.au/au/cases/nsw/supreme_ct/unrep269.html, 6 March 1998.
[14] Curtin, J., ‘How three people killed and got away with it’, Sydney Morning Herald, 9 August 1997, p.5.
[15] Yeo, S., ‘Editorial — Rethinking self-defence’ (1997) 21 Criminal Law Journal 253.
[16] Balogh, S., ‘One man’s justice: jury clears killer officer’, Sydney Morning Herald, 2-3 August, 1997, p.26.
[17] Balogh, S., above.
[18] Murphy, D., ‘Acted out of fear, not anger’, The Bulletin, 16 August 1997, (116) p.20.
[19] Balogh, above, p.3.
[20] Curtin, above, p.5.
[21] Curtin, above.
[22] Curtin, above.
[23] Curtin, above, p.38.
[24] Guilliatt, R. and Drury, B., ‘The jury and the law’, Sydney Morning Herald, 5 August 1997, p.13.
[25] Lagan, B. and Bearup, G., ‘Murder acquittal a worry for Ryan’, Sydney Morning Herald, 20 August, 1997, p.1.
[26] Guilliatt & Drury, above, p.13.
[27] Papadopoulos, N., ‘It’s my destiny to rejoin police, says killer’, Sydney Morning Herald, 21 August 1997, p.2.
[28] Ragg, M., ‘They killed and walked’, The Bulletin, 19 August 1997, (116) p.19.
[29] Woodley, B. and Fife-Yeoman’s, J., ‘The abuse excuse’, Weekend Australian, 9 August 1997, p.28.
[30] Connell, R. W., Masculinities, Allen & Unwin, Sydney, 1995, p.214.
[31] Connell, R. W.
[32] Woodley and Fife-Yeoman, above, p.28.
[33] Ragg, above, p.19.
[34] Connell, above, p.78.
[35] Salom, above, p.3.
[36] Naylor, B., ‘Media images of women who kill’, Legal Service Bulletin 15(1) 4-8.
[37] Loyd, A. (1995), Doubly Deviant, Doubly Damned: Society’s Treatment of Violent Women, London: Penguin, p.36.
[38] Connell, above, p.83.