Blind justice can’t play second fiddle to fallacies of ‘inherited trauma’

“The term historical trauma, or ‘soul wound’, was coined by Maria Yellow Horse Brave Heart, a Native American social work professor at the University of New Mexico,” writes Nick Cater.

The Judicial Commission of NSW’s annual report begins by acknowledging the Gadigal people of the Eora nation. Taxpayers are acknowledged 91 pages later in a line item disclosing that the commission received $5.3m from the state government last year.

Like many unaccountable quasi-governmental bodies beyond their use-by dates, the NSW judicial watchdog began life as a recommendation in a royal commission. Its task was to repair the reputation of judges after the state’s chief magistrate, Murray Farquhar, was jailed in 1985 for perverting the course of justice.

Across almost four decades, the commission has drifted off script into the field of social justice. It has reinterpreted its mission as raising awareness of climate change, cultural diversity and therapeutic jurisprudence, the subject of a recent report. The report’s contents were summarised in the headline on Ellie Dudley’s exclusive in The Australian last week as a guide to “going woke”.

The report urges judges to be “trauma-informed” when dealing with Indigenous defendants and consider the “pervasive intergenerational effects of settler-colonialism”. “The legacy of trauma and dispossession is interconnected with other aspects of First Nations disadvantage such as the disproportionately high incarceration rates for people both sentenced or on remand, substance abuse, social and economic disadvantage, poor mental and physical health and lower life expectancy and exposure to family violence,” it says.

Murray Farquhar

It is a year to the day since Australians voted six to four against an extra-parliamentary Indigenous body that would’ve given special powers to some Australians on the grounds of race. They did so because they’ve grown tired of the kind of mumbo-jumbo the NSW Judicial Commission is pushing.

They did so believing every citizen deserves equal respect, regardless of whether their ancestral roots in this land go back five minutes or 5000 years. They were asserting the right to be proud of what this country has become and of how their ancestors dealt with injustice by striving to do better.

A year later, the dangers of becoming absorbed with perceived historical injustice have been starkly illustrated by the war in the Middle East, which began with the Hamas atrocities in southern Israel on October 7. Some Indigenous campaigners such as senator Lidia Thorpe see Palestine as a parallel cause to their own. This historical perversion, highlighted by the promiscuous use of the word genocide, is what happens when rationality and objectivity are subsumed by sentiment.

Dispassion and indifference to sentiment are vital qualities for those administering the law. Judges who rule without fear or favour cannot allow emotional appeals to override the facts. Decisions must rest on evidence rather than the vibe of the thing, the argument famously mounted by Dennis Denuto in the movie The Castle.

So it is concerning that a government-funded body such as the NSW Judicial Commission should be promoting the myth of inherited trauma, a loose theory that appeared on the fringes of US academe at the turn of this century. The term historical trauma, or “soul wound”, was coined by Maria Yellow Horse Brave Heart, a Native American social work professor at the University of New Mexico. It is “the cumulative emotional and psychological wounding over the lifespan and across generations”.

Coleman Hughes

The search for a biological mechanism that explains how traumatic stress is passed from generation to generation has proved fruitless so far. Proponents of the theory have sought credibility by attaching themselves to a field of inquiry known as epigenetics, the study of changes in gene activity and expression that do not involve alterations in the DNA sequence. In 2003, epigeneticist Randy Jirtle claimed a breakthrough when he demonstrated that the diet of a pregnant mouse altered the colour of its offspring’s coat through DNA methylation.

Even if we assume Jirtle’s supposition is correct, the observation of variations in the tint of rodent fur falls short of demonstrating that humans can suffer harm from centuries-old ancestral injuries.

In his book Colonialism: A Moral Reckoning, Nigel Biggar finds that while it may be possible to assess material losses in recent generations, such as the theft of property from Jewish people in the Third Reich, it is impossible to draw firm conclusions about the harm allegedly caused by ancient and distant wrongs: “The riotous jungle of history overgrows and obscures the causal pathways.”

Attempting to make such links is a dangerous exercise, as Coleman Hughes argues in his book The End of Race Politics. Hughes, who is of African-American and Puerto Rican descent, lists historical trauma as one of the myths supporting what he calls the neo-racist narrative, the story that skin colour determines one’s role in life as oppressor or oppressed.

The real harm of the inherited trauma fallacy is that it encourages an attitude of perpetual victimhood, says Hughes. “It treats victimhood as if it’s a genetic disease – something permanent that cannot be overcome,” he writes.

If inherited trauma were real, one would imagine the children and grandchildren of Holocaust survivors would be peculiarly vulnerable. The industrial-scale brutalisation of their recent ancestors surely would have left its mark. It would be particularly prevalent in Israel, home to 49 per cent of the 250,000 Holocaust survivors worldwide. Yet, in the Middle East, only Palestinians qualify for protection under the mantle of inherited trauma. It is they who have been granted indigenous status by the UN despite the documented history of a Jewish presence in Israel as far back as the 10th century BC. This may be why the Judicial Commission makes no mention of Jews or anti-Semitism in its guide to cultural competence.

NSW Chief Justice Andrew Bell

Sensitivity towards people of the Islamic faith, however, is covered in some detail; Islam having become synonymous with the Palestinian cause in the language of social justice. The report says sensitivities for Muslims appearing in court could include “intergenerational trauma for refugees or those whose families have migrated to avoid war, genocide, religious or political persecution, or who are survivors of torture”.

The report claims increased legal powers in response to sporadic acts of “terrorism” (the inverted commas come from the report) have “eroded legal due process and human rights”. Muslims may have “a sense of personal responsibility to react to world events, in the context of religious injunctions to support others of the same faith”.

The publication of this dangerous mumbo-jumbo should be a career-ending move, not just for Rhondda Waterworth, its author, but also for the commission’s chief executive, Una Doyle, and its president, NSW Chief Justice Andrew Bell.

The commission’s purpose is “enhancing public confidence in the state’s judicial officers”. Under Bell and Doyle’s watch, it seems to have accomplished the opposite.