Monday, May 28, 2007



Against "provocation"

LGBT group AllOurRights has begun a campaign to repeal the "homosexual panic" defence in the Crimes Act. Section 169 of the Crimes Act allows a murder charge to be reduced to manslaughter if the victim "provoked" the killer. This clause has a long and dirty history of being used to excuse hate crimes against gays, from the murder of Charles Aberhart by a gang of youths in Christchurch in 1964 to the more recent killings of David McNee and Colin Hart. The net effect is to deny gays the full protection of the law, and to effectively licence their murder.

But its not just about gays: the most common users of s169 are misognyists. A 2001 report from the Law Commission into Criminal Defences with Particular Reference to Battered Defendants [PDF] noted that

While victims of domestic violence may find the defence of provocation beyond their reach, perpetrators of domestic violence have successfully called on it for protection... [S]ection 169 has been used to reduce the culpability of men who have killed their wives because they reported a severe beating to the police after promising under threat not to do so, or were found in a compromising situation with another man, or had taunted the husband with sexual or other inadequacies.

This led the Law Commission to recommend that the defence be repealed, and instead replaced with sentencing discretion for murder.

So, its not just a "homosexual panic" defence; it's also a defence of "the bitch was asking for it". That we permit such "defences" in 21st century New Zealand is simply shameful. This law has to go.

If you'd like to see it repealed, then you can email Mark Burton, the Minister of Justice, here.

10 comments:

This led the Law Commission to recommend that the defence be repealed, and instead replaced with sentencing discretion for murder.

So, looking at some recent Court Jesters you won't be able to run the 'provocation' defence, but if you've got some judge whose discretion is backed up by a belief that fags and bitches deserve everything they get from 'real men'...

Posted by Craig Ranapia : 5/28/2007 12:46:00 PM

Craig: sure - but remember, sentencing decisions can be challenged, and ought to be in egregious cases such as the one you suggest.

Posted by Idiot/Savant : 5/28/2007 01:51:00 PM

Perhaps, but I think the best way to stop civil servants abusing their discretionary powers is not to grant them in the first place. While I have my criticisms of the Police and judiciary, I do find it a little rich of the usual suspects to start screaming bloody murder when (gasp!) their own intellectually anorexic legislation comes back to bite them in the arse.

Posted by Craig Ranapia : 5/28/2007 03:30:00 PM

The trouble with sentencing discretion is that it's very vulnerable to the whims of politicians on a law'n'order binge. All it takes is a couple of remarkable sentences and the discretion goes away.

The reverse can also happen - our rapist-friendly police might decide that just beating a woman or fag to death doesn't justify a murder charge they'll lay charges of manslaughter or disturbing the peace. I'd rather see this countered by an aggravation clause - let the killers claim provocation, but only at the risk that they will instead see their sentence compounded as hate crime or something similar. Of course, I'd like this to extend to other crimes where similar stupidities abound, specifically the "but I used a car" defence where murder becomes "dangerous driving causing death" with a reduction in sentence.

Can I also suggest that any mitigating circumstance be taken into account when sentencing? If someone pleades, say, "homosexual panic" that their sentence include a requirement that either they avoid all homosexuals or provide evidence that they have taken steps to make sure their "panic" never happens again? Like the anger management courses for domestic violence criminals.

And again, lets see that extended to motorists - if someone gets away with murder, let them show that their excuse will not apply in future before they're allowed to drive again.

Posted by Moz : 5/28/2007 03:45:00 PM

Well, the counter arguments have some merit. But it's still a good first step. Thanks I/S, I've linked and sent the email in support.

Posted by kiwi_donkey : 5/28/2007 07:33:00 PM

Wouldn't it be better to amend 169 to say the provocation must be a serious crime in itself? There must be some things we can accept as provocation, rape for instance.

Posted by tussock : 5/29/2007 12:43:00 AM

Tussock: that's already covered by self-defence.

To make it clear, "provocation" isn't about violence or threats of violence; its about words or actions less than assault which "cause someone to lose control". These actions need not even be directed at the killer (seeing your former partner talking to another man is apparently enough), and are almost always entirely legal (and if not, so trivial as to be so; in one famous case a gay guy was killed because he put his hand on a bigot's knee). The law effectively blames the victim for their own demise, but the real problem is that the killers lack sufficient self-control to function as proper human beings.

In some of these cases the killer's anger is entirely understandable. That does not however make their subsequent actions excusable, nor does it justify regarding them as less culpable or saying that the victim was "asking for it". Unless someone is trying to actively kill you at the time, there is no possible justification for the use of lethal force.

Posted by Idiot/Savant : 5/29/2007 12:59:00 AM

The law is a holdover from the days of the death penalty when lawyers would try anything to get a murder conviction reduced to manslaughter and judges were willing to let them do so.

I think Tussock is correct that a good middle ground would be to require the provocation to itself be a crime or threatened crime.

Self defence doesn't cover it because the force used may not be reasonable, and probably won't be if you kill the person.

Also, self-defence is a complete defence while the acts at issue are still serious crimes. Provocation does not imply the act was justified, only that it merits a conviction for manslaughter rather than murder.

In some cases, the killer's anger will be sufficiently justified so that they are somewhat less culpable, e.g. a battered woman who, after years of abuse, kills her partner in his sleep.

Though it may be better to get rid of the provision entirely rather than try to tinker with it.

Posted by Nigel Kearney : 5/29/2007 07:57:00 AM

How about having a chat to the All our rights people. the website is crap. the blog post has more information than the site. It is them who should be linking to you.

Posted by Dave : 5/29/2007 11:10:00 PM

I would like to see a campaign along the lines that parents should prepare their children along the lines that ... if you are happy to engage then do so but otherwise blow the whistle, and there is no case for violence.

Posted by jcuknz : 5/30/2007 08:02:00 PM