Provocation repealed

Provocation has joined sedition in the dustbin of history.

Good. The partial defence of provocation was an archaic holdover from a more violent era, where it was considered perfectly acceptable to react with sudden violence if, say, someone implied you were gay, otherwise insulted you, or was caught sleeping with your wife (who the law assumed was property, not a person capable of making her own decisions). All of these were once seen as justifications for violence, even murder. Not any more. The law is now clear: people are expected to show restraint and self-control in their interpersonal relationships. And for those who can't, and think with their fists, we have a criminal justice system.

The law still allows people to use reasonable force in defence of themselves and others. But it does not allow them to beat and kill people out of anger. And that is a Good Thing.

ACT supports homophobia and misogyny

The Crimes (Provocation Repeal) Amendment Bill will be being debated this afternoon. The bill repeals the partial defence of provocation, which excuses sociopathic behaviour, and rewards violent, brutal people who refuse to exercise self-control. This is the law that means its not murder if they're gay, and which provides cover for violent misogynists and homophobes to commit what can only be described as hate crimes.

The ACT party has decided that they will oppose repeal.

So, ACT is "tough on crime", unless those crimes are against women or gays, when suddenly they are of lesser magnitude. Rather than standing for the equal rights of all, they support misogyny and homophobia.

But then, looking at the personal conduct of their "law and order" spokesperson, that's been obvious for a while, hasn't it?

Provocation repeal gets a step closer

The Justice and Electoral Committee has reported back [PDF] on the Crimes (Provocation Repeal) Amendment Bill, and recommended that it be passed with a minor tweak to clarify that the common law defence of provocation is also abolished. The bill will now go back to the House, and will hopefully be law by the end of the year.

The select committee report does deal briefly with some of the myths of provocation - primarily that it protects battered or mentally ill defendants, rather than violent bigots and misogynists - and dismisses them. There is simply no justification for this relic of the past to continue in New Zealand law, and the sooner it is expunged, the better.

Submit!

The Justice and Electoral Committee has called for submissions (not online yet) on the Crimes (Provocation Repeal) Amendment Bill. Two copies, by Monday, 31 August, to:

Justice and Electoral Committee Secretariat
Parliament Buildings
Wellington

The bill repeals the partial defence of provocation. If you need to be convinced why this is a good idea, read Kevin Hague's speech on it here.

Making a submission is as easy as writing a letter saying that you support or oppose the bill and stating the reasons why. If you need help, the Office of the Clerk has a handy guide here [PDF].

Provocation repeal advances

The Crimes (Provocation Repeal) Amendment Bill was up for first reading yesterday, but thanks to the urgent debate on the SAS deployment, I was not expecting it to go through. Turns out I was wrong - the government interrupted its business at around 9 to deal with it, and the bill passed its first reading with unanimous support. It will now go to the Justice and Electoral select committee, who will report it back in October. The bill should become law by the end of the year.

The race to end provocation II

The government introduced its Crimes (Provocation Repeal) Amendment Bill this afternoon. The bill is almost identical to Dalziel's bill, and will have identical effects. It will be available for first reading on Tuesday.

Labour have said they will support the bill (it would be decidedly odd if they didn't, given that its the same as theirs), so hopefully it'll be off to select committee shortly.

The race to end provocation

John Key announced in his press conference yesterday afternoon that the cabinet had agreed to repeal provocation, and that a bill would be introduced into Parliament this week. But Lianne Dalziel has already had her Crimes (Abolition of Defence of Provocation) Amendment Bill drawn from the ballot. So suddenly we've gone from a situation where no-one cares about provocation to one where both major parties are in a race to see who can repeal it first.

And it is a race. Standing Order 260(a) prevents MPs from proposing in the same calendar year

a bill that is the same in substance as a bill that received, or was defeated on, a first, second or third reading.

Which means not only that they can't progress both bills at the same time - but that, if they're serious about repeal, they have to vote for the first one to come up. Otherwise, if they vote it down, then it has been defeated at first reading and so blocks any similar bill for the rest of the year.

Dalziel's bill may come up for first reading next Member's Day (the 19th) - in just five sitting days time. A newly introduced bill must lie on the table for three sitting days (including the day on which it was introduced) before it can be debated. So if the government wants to be sure of pre-empting Labour and claiming the glory of repeal for itself, they need to introduce their bill tomorrow, and have the first reading on Tuesday the 18th. Otherwise, they may find themselves forced to vote for an opposition bill in order to enact their legislative agenda.

(Personally, I don't care who passes it - I just want the law repealed. But there's a danger here that we'll see the worst case scenario: National being too slack to do it themselves, then voting down Dalziel's bill out of spite because it's not theirs (their standard practice with member's bills) - meaning that repeal will be delayed until 2010 at the earliest).

Correction: The ever useful Graeme Edgeler has pointed out a slight change in Standing Orders at the end of last term: government bills introduced while the House is sitting lie on the table until the next Tuesday. So, the government has a little more time to get its act together than I thought, but still have to introduce their bill this week to beat Dalziel.

Drawn

The usual ballot for member's bills was held today, and the following bills were drawn:

• Social Security (Benefit Review and Appeal Reform) Amendment Bill (Sue Bradford)
• Crimes (Abolition of Defence of Provocation) Amendment Bill (Lianne Dalziel)
• International Non-Aggression and the Lawful Use of Force Bill (Kennedy Graham)

All three have been previously covered in "In the ballot", here, here, and here. The drawing of provocation is timely, given recent events - as is Kennedy graham's non-aggression bill given the government's plans to send the SAS off to Afghanistan again.

The full list is on Red Alert here. There were no new bills this week.

I'll try and put together an "In the ballot" post sometime soon, when I gather some more bills.

Power on Provocation

This afternoon Justice Minister Simon power gave a speech to the Institute of Policy Studies on his plans to reform criminal justice policy, in which he announced his plans to repeal the archaic defence of provocation:

Finally, the partial defence of provocation in homicide cases will be the subject of reform.

I want to say right now that I do not believe this defence has any place on the statute books.

It wrongly enables defendants to besmirch the character of victims, and effectively rewards a lack of self-control.

Unfortunately, he gave no timeline, so it could sit around in the queue for years - just like it did under Labour. But hopefully, they will listen to the public mood and move quickly.

An end to provocation?

With a public groundswell in favour of removing the archaic partial defence of provocation from the books, the opposition is planning to put the government on the spot by seeking leave to introduce their member's bill on the issue. But it looks like the government will pre-empt them. Good - a government bill means it will likely happen faster, and avoid taking up valuable space on the member's section of the Order Paper. And it doesn't matter who gets the credit, provided it gets done.

Update: The government has just denied leave for Dalziel to introduce her bill. This may mean a quicker repeal in the long run, but it looks pretty petty.

Weatherston

Well, I'm glad that tawdry spectacle is over. And now, can we perhaps repeal the law which allowed him to drag his victim's bleeding corpse through the mud again and effectively blame her (if unsuccessfully) for her own death?

Update: And according to The Press, the government is working on it. But they've got competition - and with anothe rballot next week, there's a chance that Dalziel's bill will be drawn first...

It's not murder if they're gay

In 2007, two men were drinking together. One allegedly made an unwanted sexual advance. The other beat him to death with a banjo and rammed the stump down his throat, killing him. Today, the second man was convicted - but of manslaughter, not murder. The message is clear: it's not murder if the victim is gay.

This is another victory for the provocation defence - and another reason why it must be repealed. The law as it stands gives cover to those committing anti-gay hate-crimes, allowing them to minimise their offending. It allows them to use the sexuality of their victim as a defence. "He came on to me" is apparently a justification for murder. If that standard - or its misogynistic equivalent, "the bitch tried to leave me" - applied to straight men, there'd be a lot less of them about.

This law rewards violent, brutal people who refuse to exercise self-control. It encourages lawyers to pander to the bigotry and misogyny of juries to essentially blame victims for their own deaths. It is, in short, a murderer's charter. And its long past time we got rid of it. It is time to ecrasez l'infame and repeal provocation.

In the ballot XXIII: Ending provocation

Four years ago, David McNee was beaten to death in a brutal and vicious attack. His killer was subsequently acquitted of murder, but convicted of manslaughter, on the grounds that McNee had "provoked" him by making homosexual advances. This "provocation" defence, enshrined in s169 of the Crimes Act, was subsequently used to excuse at least one other anti-gay hate crime, as well as a case in which a man beat his wife to death with a cricket bat because she was going to leave him. Now, Labour MP Lianne Dalziel is fronting a bill to repeal it.

It's about time. The Law Commission recommended the repeal of provocation back in 2007, arguing that it was used as an excuse for murder. Contrary to claims that it protected battered women, the primary beneficiaries were misogynists and homophobes - people reacting to what are quite ordinary circumstances (relationship breakup, unwanted sexual advances) with mindless rage. And that's not the sort of thing we as a society should be rewarding. If there are actual mitigating circumstances, rather than just hatred and a lack of self-control, then judges now have the discretion to consider that at sentencing. But leaving the law as it is provides a ready-made tool for crimes against certain groups - and hence, the members of those groups themselves - to be devalued.

The sooner this infamy is erased, the better. But it won't be easy. As a member's bill, it is basically luck of the draw. But by bringing it, Dalziel will hopefully shame the government into acting themselves. Whichever way it happens, the important thing is the repeal - not who gets to claim credit for it.

Ending provocation

Four years ago, David McNee was beaten to death in a brutal and vicious attack. His killer was subsequently acquitted of murder, but convicted of manslaughter, on the grounds that McNee had "provoked" him by making homosexual advances. This "provocation" defence, enshrined in s169 of the Crimes Act, was subsequently used to excuse at least one other anti-gay hate crime, as well as a case in which a man beat his wife to death with a cricket bat because she was going to leave him. Now, the Law Commission is recommending repeal, declaring that provocation is no excuse for murder.

The full report is here. Reviewing the cases, it finds that rather than being used by battered women, the provocation defence is primarily used by misognyists and homophobes to excuse the inexcusable. It also argues that it is simply philosophically unsound, and that while human frailty ought to be recognised, no ordinary person should respond to any provocation, no matter how strong, by killing. The law is thus a murderer's charter, and needs to be repealed.

The report includes draft legislation for repeal, and hopefully the government will advance it as quickly as it did the repeal of sedition. This law is simply shameful, and the sooner it goes, the better.

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.

"Provocation"

Our ugly "provocation" defence has claimed another victim, with a man who beat his wife to death with a cricket bat in the belief that she was going to leave him for another being convicted of manslaughter rather than murder. The message the jury has sent is absolutely clear: that it is acceptable to kill your wife if the bitch was thinking of sleeping with someone else.

The phrasing is deliberate: it makes crystal clear the bigoted and backward attitudes protected by this law. The killer thought his partner was a posession, and he reacted to evidence she might not be with murderous rage.

In such circumstances, anger is understandable. But violence is inexcusable. Applying "provocation" in such cases essentially blames the victim for her own death, when the problem is clearly the killer's utter lack of self-control. Such people should not be rewarded in our legal system by having the seriousness of their crime diminished. Instead, it is time to ecrasez l'infame and repeal this atrocity, before it provides an excuse to any more murderers.

The end of "homosexual panic"?

The Sunday Star-Times reports that Labour whip Tim Barnett is working on a bill to repeal the provocation defence for murder, which in recent years has seen at least two people who have murdered gays primarily because of their sexuality receive more lenient sentences on the basis that they were "provoked" and suffering from "homosexual panic". The upshot is to deny gays the full protection of the law, and to effectively licence their murder.

This law is an infamy which has to be erased, and I'm pleased to see Barnett is moving on it. While the law covers more than "homosexual panic", and includes things such as racial epithets or calling someone's mother a whore, the idea that these should somehow licence violence or excuse murder is simply untenable in this day and age. Those subjected to such "provocations" should exercise self-control like the rest of us, not beat someone to death and then expect to be rewarded for giving in to violence.

"Homosexual panic" claims another victim

I've avoided talking about the McNee case because a) I don't post about crime, and b) Jordan said everything I wanted to say far more eleoquently than I ever could. The "defence" of "homosexual panic" is based on bigotry and hate, and effectively licenses the murder of gays. And unfortunately, David McNee isn't its only victim. Again, the circumstances are dubious (to say the least), and the victim no angel, but there is no question that his killer went far beyond self-defence. The message sent by both judge and jury is that killing gays is acceptable, and that the standards we would apply on questions of provocation and appropriate force are lowered if the victim is homosexual. Dan White would be proud.

Voltaire's tagline was ecrasez l'infame. Well, this is an infamy that needs to be erased. If we do not treat every New Zealander as being of equal moral worth and their lives as being of equal value, then we have no right to call ourselves a civilised nation.