“Our Particular Abhorrence of These Particular Crimes”: Sexual Violence and Colonial Legal Discourse in Aotearoa / New Zealand, 1840–1855

In July 1844 members of the Legislative Council of New Zealand meeting at Auckland began to debate the Native Exemption Ordinance, which was designed to encourage the Māori population to “yield a ready obedience to the laws and customs of England” through a very gradual imposition of British law.¹ Governor Robert FitzRoy proposed altering section 6 of the bill so that not only murderers but also rapists would be denied bail. “As we intended to make them [Māori] acquainted with our laws,” FitzRoy argued, “it would be as well to mark our particular abhorrence of these particular crimes.”² The motion carried, and the final text of this section of the Ordinance reads: “Be it enacted that where any person of the aboriginal race shall be charged with any crime or offence other than the crimes of rape or murder, and where such person would otherwise have been committed to take his trial, every such person shall be allowed to go at large on making or procuring to be made a deposit in manner and to the amount hereinafter mentioned as a security.”³

Several years later, the New Zealand Spectator and Cook’s Strait Guardian reported that a bill for rape committed against a Māori woman was due to be heard at the 1 September sitting of the Supreme Court. (In the legal terminology of this period, a bill refers to a case brought before the Supreme Court. A finding of “no true bill” meant that the Supreme Court had not found sufficient evidence for an indictment.) This rape, “alleged to have been committed in February by one of the Armed Police on a native woman living at Waikanae,” is one of the very few cases in the colonial record where a European man was tried for sexually assaulting a Māori woman. And yet despite this fact and despite having made it all the way to the Supreme Court, the case received relatively little attention.⁴ Other than being briefly mentioned in the Spectator, the case received no further coverage in court records or newspaper reports.

These two examples of the treatment of sexual violence—one a result of discussions concerning the governance of the nascent colony, one the result of legal action undertaken in the colonial court—paint an intriguing picture of the multiple meanings of rape that circulated in colonial New Zealand society and the ways in which the policing or tolerance of such sexually transgressive acts helped to imagine and enact civilized spaces within the nascent colony. In attempting to gradually guide Māori toward a more English system of law, Governor FitzRoy and the Legislative Council wanted to convey to both the Māori and settler populations which crimes were considered most transgressive by English standards; by including rape alongside murder, FitzRoy and the others were reaffirming middle-class British legal and moral discourses concerning the reprehensible nature of sexual violence in a civilized society. The imposition of British law was part of what was perceived as the inevitable amalgamation of the Māori with the British population; the Treaty of Waitangi, which brought the islands of New Zealand under formal British control, even granted “the full Rights and Privileges of British Subjects” to Māori. This amalgamation of the two groups was the goal of some early British officials and colonial theorists such as Edward Jerningham Wakefield.⁵ As Shani D’Cruz has argued, rape directly violated the developing principles of a middle-class mindset that emphasized the moral purity of women and the importance of protecting that purity through social, medical, and legal means.⁶ On the other hand, however, the rape of a Māori woman by a pākehā (European) man received only a passing newspaper mention and, according to extant court records, never resulted in a trial; this legal silencing of a Māori woman’s experience is suggestive of the lack of legislative and social importance accorded to indigenous women and their sexuality...