A little while ago, I was driving a car down State Highway 1 and I was howling. Actually howling, snotty tears and all. Then I’d pull over for a bit, recover myself, move off again, and then something would catch in my throat. Then I’d be howling again.
Such car-cocooned moments are not unheard of for me in recent years. Ever since my mother died in 2015, I can get caught by grief, unawares, and find myself sobbing, or at least leaking, at traffic lights because something set me off. Last time that happened was when RNZ had the temerity to play Air Supply. It helps to have a supply of tissues on the ready.
These tears were not due to my mother on this occasion, though. I’d just left a house where a whānau had been sharing their history with me for a cultural report I was writing for a sentencing hearing that was coming up in the new year.
My howling was borne of inarticulate rage, and helpless misery that any family in New Zealand had to go through the utter trauma that they’d had to go through in their past and present. My hūpē and tears were never going to make a damn bit of difference to that whānau history, nor to the pain of the victim in that case, but they came anyway.
I think, too, there was some recognition that what they’d been through was not entirely disconnected to my own family history. I think some grief for our own family trauma was in there too — trauma far beyond my own direct memory. My empathy gap had been well and truly plugged.
It’s easy to have an empathy gap. In fact, it’s unavoidable.
By comparison, compassion, or the feeling of sympathy for others in misfortune, is, for many of us, not that difficult if we care to exercise it. And, of course, our society and its communities also suffer from a fairly healthy compassion gap, too.
But feeling compassion is probably less problematic, perhaps because compassion can be as much about what we don’t want to experience ourselves as what we feel about the lives of others.
Empathy is slightly different, though. Empathy is understanding and sharing the feelings of another person. Perhaps, by definition, to empathise with another person we have to be able to feel what they feel. Perhaps we must have been through what that person has been through, or something similar, in order to empathise with them.
A lack of true empathy doesn’t necessarily mean a person can’t truly help another. Humans have resources to call upon other than just empathy. But it can help to understand a person well enough to be able to help in a way that makes sense.
Generally speaking, social welfare and criminal justice case-workers will usually (but not always) have some form of empathy gap between them and those they are supervising or processing or writing about — or judging.
This is not necessarily a moral failing. Many of us simply can’t feel or imagine the life of another. We can’t walk in their shoes. We might even lack the mental imagery and hardware to do it.
And although we can more easily feel for others, pity them even, if we allow ourselves to, often we can’t truly understand them, if our lives haven’t already somehow prepared us for that moment.
It’s possible to learn empathy, but I think that would be hard. Not impossible, but hard. Moral failing, including racism, may exist in the refusal to try.
Or there’s something more complicated. Sometimes we can bend over backwards to quash or deny our empathy for others. Merely sharing experiences is not enough. Sometimes we can view others only through lenses that just reflect us back to ourselves: “I went through what she went through, and I turned out okay.”
Perhaps also, some Māori who’ve come from traumatic backgrounds may not want to empathise or have compassion for others with similar backgrounds.
Denied empathy is one thing, pretend empathy another. I remember years ago, as a 20-something probation officer, having a young Pākehā guy come and visit me at the office. I was supervising him. But he didn’t want to be there — he had better places to be.
I was trying to establish some kind of rapport with him. It was the uncertain start to another new relationship neither of us really wanted. I had some wise point to make (for his own good, of course) that I now forget. I leaned forward in my chair, keeping earnest eye contact, and said: “Listen, mate …” as if I was going to impart something unprecedented to the lucky soul. He reared back as if I had spat in his direction. “Don’t call me mate! I’m not your bloody mate!”
He was right. I had presumed some kind of connection, but I was merely pretending that we were on the same team, that there was some kind of fellow experience between us. In short, I was trying to pretend that I empathised with him, and he called me on that bullshit.
I never forgot it. I try not to manufacture empathy. I try to feel it if I can, allow the seeds of it to grow, but I can’t pretend it exists when it doesn’t. Where it doesn’t, I have to call on other things, my compassion and aroha, my instincts, and my morality.
How do we make connection and offer support or help that makes sense if we don’t try to plug the gap?
I think what had happened, on that day in my car, was an upwelling of compassion but also the shock of empathy — one I hadn’t been faced with for a while, for whatever reason. On the surface, this whānau’s experience looked nothing like my own. Theirs was a story of extraordinary poverty both of love and money. An intergenerational story of gang affiliation and of repeated escape attempts. A story of loneliness, rejection, despair and some hope.
But, actually, that story had a similar point of genesis to my own whānau story. At the bottom of it all was war with the same enemies: land deprivation, urbanisation, fractured histories, and self-loathing leading to sexual abuse, violence, substance abuse and bad decisions.
Tempered, of course, by collective agency, individual resilience, ambition, sheer bloody-mindedness and some better decisions. We also shared a common Māoriness. We could lob the same words into our conversation, trusting each other to catch them. We knew some of each other’s family names. We could follow an unspoken tikanga of how to speak with each other. We had never met. We were from different parts of these islands. And yet.
Thus, my empathy was not predicated entirely on nice and chummy fellow feeling and understanding with another individual or two. It was predicated on the certain knowledge that my people and their people’s experiences were recognisable, connected, and of like substance.
Recent psychological research has suggested that there is such a thing as cultural empathy. We simply are more likely to empathise with those who are more like us than not. Well, duh.
That, and other experiences led me to question (as if any more questions are needed) the role of culture in criminal justice — in particular, the usefulness and role of cultural reports that can be called for at sentencing. After all, that was what I was doing in that family home that day: asking questions to write a cultural report.
I think I wrote a better report because of my empathy. That was of some help, I think. Small in context, but something.
But beyond that?
We all know the stats are bloody appalling. Within our criminal justice system generally and the prison population specifically, we know Māori are over-represented in comparison to the general population.
According to the Ministry of Justice, in May 2018, the total prison population was 10,435. Māori made up 50.7 percent of all sentenced prisoners in New Zealand, despite comprising just 17.5 percent of New Zealand’s population. Of all sentenced male prisoners in New Zealand, 50.4 percent are Māori men, while Māori women now make up 63 percent of all sentenced female prisoners.
An even bleaker and worsening position is occupied by Māori youth. Māori comprised 65 percent of all youth in prison in 2017, up from 56 percent a decade before. (See this report at p 11.) There are now more than 5,000 Māori people in New Zealand jails.
This over-representation extends well beyond the jail cells into the experience of being a victim, the exercise of administrative and police discretion, charging figures, bail decisions and prosecution figures (pick a colour, any colour, oh, here’s one teeny example). We all know this by now.
That’s where the reports do fit in. Parliament decided as far back as 1985 that such growing over-representation of Māori in the New Zealand prison population could, in some way, be addressed at sentencing, by way of the introduction of Section 16 of the Criminal Justice Act 1985 (now repealed).
That provision was originally enacted in order to encourage the use of alternative sentences to imprisonment. However, the provision wasn’t well understood by counsel or the judiciary, and as a consequence was completely underused.
Fast forward nearly 20 years and now we have Section 27 of the Sentencing Act 2002. This section was built on the idea of the original Section 16 from 1985, and now allows judges to gain insight into the cultural backgrounds of all offenders generally.
But it can be used to focus on Māori offenders specifically, with the overall goals of reducing imprisonment rates and, like its predecessor, encouraging more use of rehabilitative and community-based sentences. Until recently, Section 27 has also been significantly underused.
Under Section 27(1) an offender due for sentence may request the court to hear any person or persons called by the offender to speak on the following matters:
(a) the personal, family, whanau, community, and cultural background of the offender
(b) the way in which that background may have related to the commission of the offence
(c) any processes that have been tried to resolve, or that are available to resolve, issues relating to the offence, involving the offender and his or her family, whanau, or community and the victim or victims of the offence
(d) how support from the family, whanau, or community may be available to help prevent further offending by the offender
(e) how the offender’s background, or family, whanau, or community support may be relevant in respect of possible sentences.
Note that this is not aimed solely at Māori, but there is no doubt that Māori over-representation was at the heart of the design of the section. Section 27 is part of a code that also relies on Section 8(i) in the Sentencing Act which provides that the court must take into account “the offender’s personal, family, whanau, community and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose.”
Although an interpretation of Section 27(1)(b) on its face appears to require a causal link between the offender’s individual and specific cultural information or background and the commission of the offence — “the way in which that background may have related to the commission of the offence” — interesting and very recent developments in New Zealand courts appear to echo Canadian approaches that simply don’t require the demonstration of such a specific and individualised causal link. The permission has been given to look further afield at systemic deprivation.
In particular, in a recent decision in the High Court case of Solicitor General v Heta, Justice Whata accepted that, while sentencing does not on its face, require any discussion of the systemic deprivation faced by Māori, the operation of Section 8 in combination with Section 27 of the Sentencing Act 2002 certainly allows for the court to hear such material.
An important thing to grasp here is that the Māori experience of colonisation, disease, war, urbanisation and deprivation within this country is unique to Māori in this country, and is not shared with any other ethnic or cultural groups in the same way.
This realisation was part of what lay behind my tears on that road trip. We were alike in our culture, and part of that culture has been now recognised to include the intergenerational experience of trauma.
At long last, the courts are catching on, even if at a glacial pace, to what Tariana Turia was on about nearly two decades ago. And now, with the release of Every Four Minutes, a report on family violence, we have the Chief Science Advisor laying some of the impetus for family violence at the feet of the trauma of colonisation.
We’re beginning to understand that the modern experiences of Māori individuals can’t really be fully explained by reference to one such individual’s immediate and siloed history alone.
Of course, it’s not enough for us to have the emergence of yet more reports, more bad stats, and cultural reports being used more often in the way they were intended.
Māori being sentenced to shorter sentences of imprisonment on the basis of fuller cultural information being brought before a judge is hardly going to change the world. The young men and women that have cultural reports written about them aren’t going to be walking into courtrooms where the inevitable empathy gap has magically been eradicated.
We can and must push for better information to be put before judges in sentencing. We can demand improvements to the Bail Act. We can push for better programmes in prison, for more therapeutic jurisprudence, for something better than prisons. All of that.
But we can’t expect institutions to be empathetic and compassionate to the thousands of Māori in the system now, and to the Māori children who are going to be sucked into it in the future. That is our job on a daily basis.
And, if we just can’t find the empathy for whatever reason, then we use compassion, aroha, instincts, smarts, and all the rest to close the gap and keep our people out of the system.
Maybe then …
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