Thursday 10 July 2008

the sound of silence

at the time i write, i see that no-one here has taken up the issue of tony vietch and his involvement in a domestic violence incident (update: since then, i see julie has put up a post! great minds and all that...). indeed, i find it difficult to think of what to say myself, other than the bleeding obvious, which is that it was a terrible thing to do.

i am interested in the legal issues. can you contract out of a criminal charge, by include a confidentiality clause in the contract? does not that breach some kind of laws around bribery and extortion? i'd be really interested to hear from some lawyers about the legality of said contract, because it just doesn't sound right to me.

the police say it will be difficult to press charges without a complaint. if it's evidence they need, surely they can access the medical records from the hospital that ms dunne-powell went to for treatment? if her back was broken in four places as was alleged by the dominion post, then one would think there would be sufficient medical evidence available. mr vietch has already admitted to "lashing out", so on the face of it, there appears to be a case. i really can't see why there's a problem.

another factor of interest will be how much tvnz and radio sports knew about this, and when they found out. i was listening to radio live on tuesday afternoon (i don't do it much, i promise) when some fellow called in to say that his cousin had also been on the receiving end of similar treatment from mr vietch, but that tvnz had hushed it up. that's pretty damning. on the other hand, the caller did not reveal his name and i haven't seen any other media pick this up, so it may not be true. but the issue is: if mr vietch's bosses knew of the crime against ms dunne-powell and they didn't report it, then that would also appear to me to be a criminal act. i would hope that prosecutions would be forthcoming. because "it's not ok" also includes the fact that it's not ok to cover up someone else's criminal actions.

the final and most important factor is ms dunne-powell herself. i can fully understand her reasons for not going through a court case and reliving an extremely painful incident. especially at time when she was trying to recover from the physical injury and apparently going through some pretty severe mental strain as well.

i can understand her wanting to keep this whole thing out of public scrutiny. given the way a recent alleged victim of rape has been treated and given some of the comments already being made about this case, it's not surprising. even if her identity was kept a secret, the nastiness would still be forthcoming, and add to the pressure she was already facing.

i understand, but on the other hand, i firmly believe that cases of domestic violence need to be prosecuted. it's not enough for mr vietch to front up to the cameras and say sorry. it's not even enough to be genuinely sorry. a crime has been committed, a conviction needs to happen. i'm not much concerned about the sentence, in that i'm not much into punitive revenge. i'm more interested that we as a society, through the justice system, send out a clear signal that domestice violence will not be tolerated.

i would hope that the conviction could be obtained without ms dunne-powell having to give evidence. more than that, we need to consider how we can create a justice system that women are able to use without fear and without being re-victimised. a system where it isn't much simpler to take the money and keep quiet.


DPF:TLDR said...

can you contract out of a criminal charge, by include a confidentiality clause in the contract

Short answer: No. A contract is effectively a piece of law created by private individuals, but somebody cannot be compelled to break the law by a contract. A contract can create an obligation to do something that would not otherwise be compulsory or prevent somebody from doing something that would not otherwise be forbidden, and that obligation or prevention would be enforcable in court. But a contract cannot create an obligation to do something illegal.

For instance, if I contract you to murder somebody, and you don't do it, I can't take you to court and sue you for breach of contract.

A contract that compels somebody to do something illegal is null and void. I'm not sure if it invalidates the entire contract or just that clause, but the illegal part is definitely inactive and unenforcable.

Now it's not actually illegal to refuse to make a complaint to the police when you're assaulted, but it is illegal to withhold information or lie to the police concerning a criminal act (like an assault). Some would argue that this disempowers the victim, and certainly the spectacle of a rape victim being taken to court for refusing to communicate with the police about her rape would be an unedifying one and hard to phrase as something that helps rape victims.

But regardless of the legal situation, on more practical terms it is very difficult to get a conviction without a statement from the victim - this is why the police often won't act without a complaint.

So anyway, to sum up, what Veitch did was almost certainly not an enforcable contract in the eyes of the law, and may actually be illegal above and beyond the assault - conspiracy to pervert justice would be one possible charge. If nothing else, in any trial, the fact that he paid the victim to hush it up would make it very difficult for him to convince a jury that he wasn't guilty.

One question comes to mind - what of the $100,000? If it was an illegal contract, technically she has no right to the money.

Should the law compel women who accept hush money to return it, in order to discourage men from making this kind of offer? Or should it be seen as an informal method of compensation - or simply be acknowledged that the woman, as the victim, doesn't need to be harassed about money when she's already been through more than anybody should have to?

Anna said...

I think you're right on the money about how disturbing the apparent collusion is. I think it's very important that Veitch's victim isn't impugned for accepting money from him, taking the focus away from his actions (although I've no doubt someone will have a go at her about it).

I want to sound a word of caution though - I think there are some pragmatic reasons why the Police shouldn't go ahead and charge someone without the victim's blessing. In my work, I once supported a woman who would call out the Police against her husband's violence. She was trying to negotiate an awful situation whereby she was trying to get away from him under intense cultural pressure to keep her marriage intact. If he'd ended up with a criminal conviction, it would have made the marital problems evident, and damaged his career (and his ability to support the family financially). Her decision not to complain formally was obviously unsatisfactory from the overall struggle against domestic violence point of view, but made a lot of sense in terms of her own and her kids' wellbeing.

stargazer said...

thanx for the comment hugh, it's this aspect that i was most interested in "and may actually be illegal above and beyond the assault". i would like to think that mr vietch could be prosecuted for entering into the contract.

re entitlement to the money: i believe the ACC scheme means that victims don't get to sue offenders for loss of income, personal distress etc? i expect she would have received full ACC cover for her injuries. then there would be the property relationship laws if they had been together for 3 more which should come into effect.

but basically, if she refuses to refund the money, is he likely to take her to court? i doubt it, and i'd also be interested to know whether he would actually have a case that would stand up in court.

Anna said...

I've just noticed your comment Hugh - really interesting. There is certainly a community interest in ensuring that men who commit violent crimes don't then buy their way out of the consequences using dubious contracts. Still, it's difficult to begrudge the woman in question some compensation - it sounds like she lost a great deal in terms of health, career, wellbeing etc. What are the general rules around perpetrators offering compensation to victims? Is it taken as a mitigating factor in sentencing? Presumably it is only OK when it's done above board, and not as part of an attempted hush-up?

Anonymous said...

A particularly horrible thread has developed over at kiwiblog on this topic (after a post abotu an unfunny Tui billboard) But there was suggestion that it wasn't "hush" money but a settlement by two high-profile adults wanting to keep things out of the limelight. Suggested that going through the court system would have hurt her more but then degenerating into the "she must have deserved it" stuff (uggghhh!!) So there may not have been a contract as such.

I am personally horrified an hope is is off TV and radio for a long time - just for starters. It seems he has undergone counselling but his excuses sounded "cheap".

Anna said...

That 'settlement by two high-profile adults' is such awful bullshit. It's like saying there's no public interest in domestic violence - it's just a private thing between almost-consenting adults. Violence or other crime outside the home and between strangers is never regarded in that way.

DPF:TLDR said...

Stargazer, the problem is, if the contract does represent conspiracy to defraud, it could be argued that his partner is guilty too. However, if (as is quite likely IMO) it was a case of what the Russians call 'Gold or a Bullet' - eg, 'take this money and stay quiet or I'll beat on you some more' - she would be able to defend herself as saying she was acting under duress.

If he tried to get the money back off of her he would be exposing himself to ridiculously negative publicity and he probably wouldn't try it, although legally he might have a case. There is a general legal principle about the proceeds of crime but I'm not sure how it applies in this case. I think the best move for her would be to donate the money to a charity that helps the victims of domestic abuse.

Anna, I believe it is permitted for criminals to offer compensation to the victims of crimes providing it's done in an above the board way. I remember a case a few years ago where a young man who killed a woman in a car collision paid her family a substantial sum in compensation. It was controversial because the judge mentioned it in his summing up as 'evidence of remorse' and it was speculated it might have contributed to the young man not getting as harsh a sentence as he could have (IIRC he got three of a possible seven years for vehicular manslaughter).

I'm a bit torn here. On the one hand I do feel that it is appropriate for judges to take expressed remorse into consideration when sentencing, as long as it is genuine (Veitch's, so far, doesn't meet that standard IMO). On the other hand, I don't like the idea that somebody like Veitch will have an option for expressing remorse that is not open to a poorer person in the same circumstances - and that's assuming that the money paid is an expression of genuine remorse, not just a payoff. Although one could argue that a $100,000 hole in the pocket is going to cause many people to think twice about their actions where a victim impact statement might not.

Anonymous said...

Anna you are right of course. Its seems more of the story may be out tomorrow too. I find it all so infuritaing and have been shocked by some reactions from epopel I thought knew better

Anonymous said...

I don't know the exact details of the contract - have they been published anywhere? Without those, I don't think you can go so far as to say that it's in itself illegal. If it explicitly prohibits testifying in court, that part's plain unenforceable - both because it's illegal and because of the general principle that testimony in itself cannot expose you to legal proceedings (a more common place that would come up is the idea that court testimony can't be a cause of action for libel proceedings).

A run-of-the-mill contracted silence isn't illegal, so as far as it prevents her from speaking to the media it's all above board. I'm really not sure about a provision preventing a police complaint, but I would incline towards saying it's legal and probably enforceable. Even that couldn't apply to anything she didn't initiate, though, so she could speak to the current police enquiry.

If it tries to stop her testifying in court, they're both conspiring to pervert the course of justice. It's extremely unlikely that she would be prosecuted for that, and even if she were I don't think it would be successful. I think there'd be enough ambiguity to cover Veitch as well there, but it would depend on exactly what the contract said and the circumstances surrounding it.

Duress would definitely invalidate the whole thing, and the specific contents of the contract could make it void ab initio. The question of whether she'd then be obligated to pay back the money is interesting; on the assumption that Veitch was responsible for drafting the content, I'd say no - it was a gift, and he knew (or should have known) that the contract was worthless.

Most of the odd technical points there are extremely unlikely to come up. It's just not in Veitch's interest or the public interest to follow them up.

DPF:TLDR said...

Michael, thanks for those points. I agree that most of the finer legal points are abstract given the particulars of the case and the unlikelihood of them ever coming to court, but they're worth considering as part of the general principle of the situation - I do wonder how often a woman's silence being bought happens, and how much it contributes to silence over domestic violence. Of course a lot of these 'silence contracts' are probably informal.

I agree that a contract not to talk to the media would be entirely legal, though.

Anonymous said...

I'm a bit torn here.

Isn't it the indulgences problem?

I.e, salvation by works or faith?

Julie said...

I find the employment side of this situation weird. If TVNZ and/or Radio Sport knew about the situation then there is clearly at least a lapse of ethical judgement, in terms of not reporting a serious incident of domestic violence to the police. And now they have both suspended Veitch (presumably on pay) and have launched their own investigations. (Imho this is a waste of their time, they should actually just let the police investigation do the work for them, it's unlikely they would be able to conduct a higher-level investigation than the police, and I think they will have to meet a similar burden of proof?) Anyway, if they are doing what they are doing to avoid giving Veitch grounds for a personal grievance (and thus a possible pay-out from them) then I have no problem with that.

The hush money issue does, yet again, speak to the need to look at how our justice system deals with crimes that involve victimisation, such as domestic violence, rape, harassment, assault, etc. I think there's some kind of review going on, as a result of the Louise Nicholas case? Does anyone know anything else about this?

stargazer said...

employment law does require them to conduct an investigation, regardless of what the police are doing. that investigation wouldn't have to replicate what the police are doing - in fact it would probably rely on and therefore have to wait for the police investigation results. they would also need to be investigating who knew what and when withing the organisation.

the review into the justice system around this is, i think, being carried out by the task force on sexual violence which is a grouping of NGO's and government agencies. last i heard, they were due to report by the end of the year.

DPF:TLDR said...

(Imho this is a waste of their time, they should actually just let the police investigation do the work for them, it's unlikely they would be able to conduct a higher-level investigation than the police, and I think they will have to meet a similar burden of proof?)

Not necessarily. Most employment matters operate on a lower standard of proof than 'beyond reasonable doubt'.

And really, if TVNZ didn't launch their own investigation, they would be villified for their passivity on this matter - and rightly so!

A hypothetical though - if Veitch is convicted, goes to jail and serves his sentence, would it be appropriate for TVNZ or some other employer to take him on again?

Julie said...

Sorry I didn't mean to give the impression I don't think Veitch's employers should mount any investigation, just that it would make sense to let the police do the bulk of the work, rather than have a parallel investigation that could well interfere in the police work. I agree about the burden of proof in terms of his employment issues, but this is where they will need to tread very carefully, as to policy and employment agreement provisions around bringing the employer into disrepute, what constitutes serious misconduct (particularly when it is an incident that does not happen in the context of work), etc. If you are found guilty of a crime that doesn't constitute serious misconduct under the terms of your EA your employer doesn't automatically have the right to fire you (although of course jail time may make that irrelevant).

As to investigating who knew what within TVNZ and Radio Sport, and when, and what they did(n't) do about it, I agree that needs to be done too, but they are actually a bit separate and should be clearly stated as so in the interests of transparency, imho.