COMMENT
It's hard to imagine what it must be like to be told your child is disabled and never likely to lead a normal life. There would be few more devastating things.
One of the most fundamental things that all humanity has in common is the desire for its children to be healthy and "normal". This desire transcends cultural boundaries. It is biological and evolutionary in terms of its power and necessity.
Ask any expectant mother and father about whether they want a girl or boy and the answer in most cases goes something like, "I don't care as long as they are healthy and all the bits are in the right places".
So how do we deal with a father who has been told that his baby daughter has a brain that has developed only to the level of a 13-week foetus, and that's it, as good as it gets?
How do we deal with a family who, as all families do, share this wonderful expectation that their children will be perfect and then find out they are not?
Who can anyone in such a situation turn to, and what could they possibly be told that would give them any release from their pain?
That is why the decision to acquit a father who killed his baby daughter is perfectly understandable. It is a perfectly normal and human reaction for the 12 people who were required to determine guilt in this case to put themselves in his place and ask, "Would I have done the same?"
All 12 quickly concluded that they may have and, by their decision, demonstrated a level of sympathy and understanding that is admirable.
Should this father have gone to prison? Of course not. Such an outcome would border on the absurd.
However, can any action where an adult knowingly and purposefully kills a child be determined not to be a crime, despite a mountain of evidence to the contrary? The jury in Nelson thought so.
They were wrong. And, not only wrong in a small way but to an extent that cuts to some of the most fundamental legal and ethical principles our society has held dear.
Legally, juries are there to determine matters of fact. Does the evidence show that this event did or did not take place and that those accused are responsible? They are not there to pronounce judgment or administer the consequences. That is the role of the judge.
These two functions, determining guilt or innocence and passing judgment, have been kept separate in our legal system for cases just like this one.
The jury is able to find guilt on the basis of the facts, and the judge is then able to exercise compassion when the events surrounding the facts support sympathy and understanding.
In this case, the two got horribly confused.
It appears that the jury, keen not to see this father go to prison, simply ignored the obvious facts of the case and jumped to delivering a verdict that would preempt any such judgment. Unfortunately, by doing so, they have effectively determined that under certain circumstances it is not a criminal act to kill a child. Despite all of the facts, despite a confession and despite the law, this father is not guilty of a criminal act at all.
This is where the considerable ethical problems raise their collective heads.
If this line of reasoning is to be followed, who is going to determine at what point it is permissible to kill children? What about the parent who has an intellectually disabled child with severe behaviour problems, or the parents who have a child with profound physical disabilities who may require near 24-hour-a day care?
When these parents understandably reach the end of their tether, which they are likely to do daily, at what point will it not be a crime for them to kill their children?
As a society, we say that to draw lines for such things is wrong and, even if it weren't, is just too difficult anyway. So we rightly adopt the view that for any parent to kill a child is wrong in principle and in law. To adopt any other position is untenable in any democratic society that has even the slightest pretensions of decency.
Having said that, we do acknowledge that anyone put under extreme and unreasonable pressure or stress may take life because of it.
When it happens it does not mean that the facts are ignored. Neither does it mean that as a society we turn a blind eye or try to say that such a terrible thing as killing a child is not a criminal act.
What we do is make a statement that a criminal act has taken place and then allow judges to exercise compassion in their sentencing. And the record supports the view that in such cases judges almost always do exercise such compassion.
Being a parent is not easy under any circumstances, and being the parent of a child with severe or profound disabilities takes something in the nature of a superhuman effort.
To those involved it must look like a long and endless road that will be interrupted only by death.
The fact that so many parents walk that road daily makes them some of society's heroes. They get little recognition for their effort, all too few resources and, often, precious little support.
Yet they do it. Why?
Because there is something universally precious about our children and young people, regardless of who they are or their levels of ability. They bring out the best and worst in us, the most joy and most sadness, the most pride and most frustration. That's why.
So it is one thing to understand and sympathise with the plight of parents pushed beyond the bounds of reasonableness.
It is quite another to say that when they are and they take the life of a child, we should simply try to pretend that such an action is not criminal.
There would be few people whose hearts did not go out to the Nelson couple or who would not wish them well in the future. The vast majority of us would agree that jail is not in any way an appropriate consequence for such a terrible situation.
The pity of it is that a similar outcome could have been achieved without a jury needing to flout fundamental legal and ethical principles in order to make it happen.
* Dr John Langley is the dean of education at Auckland University.
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