By Cat MacLennan
In 2017 I said that Judge John Brandts-Giesen should no longer continue sitting on the bench.
My remark followed the judge discharging without conviction a man who assaulted his wife, daughter and friend. The judge said that the offending was a “nasty assault,” but had to be seen in its context. He went on to state that “There would be many people who would have done exactly what you did, even though it may be against the law to do so.”
The Police, the Crown and the High Court all took a different view of the violence and, on appeal in 2018, the man was convicted.
My concern in 2017 was that Judge Brandts-Giesen’s sentence and comments revealed his lack of understanding of domestic violence. He minimised the offending and his remarks harked back to an era when violence by husbands against wives was unacceptable.
A large part of a District Court judge’s work deals with domestic violence and someone who does not understand its dynamics lacks the skill to perform his role properly.
The judge’s sentence and statements also jeopardised public confidence in the judiciary. He condoned both violence and law-breaking by stating that many people would have done what the defendant did, despite it being against the law.
That is an extraordinary and inappropriate remark for a judge.
Today, I am repeating my statement that Judge Brandts-Giesen should no longer continue sitting on the bench.
The judge is again in the headlines, after the High Court overturned another of his discharges without conviction. Judge Brandts-Giesen this time decided not to convict a man who secretly filmed a woman in a shop changing room.
Judge Brandts-Giesen said there was a real possibility the offender could lose his job if he was convicted. He also stated that women were “probably more sensitive” about being filmed without consent than men were. He went on to state that the offence had a sexual aspect, which in our “reasonably puritanical society” was frowned on, and this could lower the offender’s standing in the community if people came to know of it.
The judge completed missed the point. Filming women secretly is about power dynamics, sexualising women, and a male view of entitlement to access women’s bodies without consent. It is not against the law because it is puritanical.
Judge Brandts-Giesen does not understand any of this. That is why, once again, he imposed an inappropriate sentence. Both this judgment and his 2017 one also clearly show that the judge is only able to view situations from the male offender’s perspective: he does not understand the impact of the behaviour on the female victims and how it fits into the broader societal context of domestic and sexual violence.
On appeal, the High Court once again overturned the discharge without conviction.
My opinion is that Judge Brandts-Giesen should no longer continue sitting on the bench because his lack of insight into violence against women makes him unable to impose appropriate sentences. This in turn undermines the community’s confidence both in the judiciary and in the legal system as a whole.
Following the judge’s 2017 sentence and remarks, the then-Chief District Court Judge said that he would receive further training in relation to domestic violence. However, Judge Brandts-Giesen’s most recent comments and sentence demonstrate that he still does not understand the power and control mindset which leads to violence against women, both in domestic relationships and in the public sphere.
There is a very specific procedure for dismissal of a judge. It is almost never used, either in Aotearoa or in similar countries. I am aware that it would not be used in this case.
However, in stating that Judge Brandts-Giesen should no longer continue sitting on the bench, I hope (as I did in 2017) that he will himself recognise that he is unsuitable for the judiciary and step down.
He is doing injustice to female victims and jeopardising confidence in the legal system by continuing to remain in his job.
Most District Court decisions are not appealed and few District Court judgments ever come to public light.
What women wonder when we read the judge’s remarks and sentences is how many other cases there are in which Judge Brandts-Giesen’s views have resulted in inappropriate outcomes, but which we have not heard about.
We also wonder how many other judges there are still sitting on the bench who similarly lack understanding of violence against women.
Cat MacLennan is a barrister.