Sunday, July 09, 2006



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.

18 comments:

Is it really too much of a stretch to hold that an offender who, through the actions or words of someone else that are no fault of the offender has "in fact [been] deprive[d] of the power of self-control and thereby induced ... to commit the act of homicide" should be guilty of manslaughter?

Those subjected to provocations should exercise self-control, and if they choose not to and kill they commit murder; but we are not talking about them - we are talking about those who are so provoked that they lose the ability to choose. Surely someone without the ability to change what happens is less culpable?

Should it apply to "homosexual panic"? While society accepts that homosexual advances can cause such an extreme reaction, yes. The problem isn't the law, it's the opinion society has of homosexuality, change that, and the Phillip Edwards's of the country won't be able to fake this as an excuse.

Posted by Graeme Edgeler : 7/09/2006 04:29:00 PM

Graeme: I would say that someone so lacking in self control that they respond to mere words with murderous rage is mentally ill, and that is the defence they should be using - not "provocation". The current defence effectively justifies violence - and apart from the very limited circumstances of self-defence, that is not a message it should be sending.

Posted by Idiot/Savant : 7/09/2006 04:52:00 PM

Point of whatsit - that's "epithet."

Posted by stephen : 7/09/2006 05:57:00 PM

should not provocation via "homosexual panic" fail based on it not being provocation (rather like being short isn’t a provocation).
To say you have to change the law to do that implies you accept it is one..

Posted by Genius : 7/09/2006 06:35:00 PM

Rubbish. What about the guy who catches someone raping his child, the battered spouse who has been told she's a possession, and more. What about when they kill? In such situations people are less culpable, Graeme is right.

It's only a partial defence, it only gives a Judge more discretion in sentencing. In the current sentencing climate that's important.
And for what reason does everyone think Edwards raised provocation? It's more likely that his provocation claim was unsuccessful.

Posted by james cairney : 7/09/2006 08:02:00 PM

'...not beat someone to death and then expect to be rewarded for giving in to violence.'

They're hardly rewarded I/S.

The law should be changed for the benefit of all, not just homosexuals. Discuss.

Posted by Gooner : 7/09/2006 08:06:00 PM

I would say that someone so lacking in self control that they respond to mere words with murderous rage is mentally ill, and that is the defence they should be using - not "provocation".

Wow. Meanwhile, back in the real world where people are wronged by others and humiliation, passion and all the rest of it are real and aren't symptoms of mental illness ... Graeme's obviously correct, with the proviso that it's far from ideal to have a separate "provocation" provision within the culpable homicide statute. Rather, it seems that if you believe in provocation at all it ought to apply more generally as a mitigating factor in a wide range of crimes. You wrong me then provoke the hell out of me and I lose it and put a brick through your car's windscreen. Someone else might have killed you. Shouldn't the killer and I get parallel provocation credits, as it were? Could the law ever be written to reflect that transparently?

The current defence effectively justifies violence - and apart from the very limited circumstances of self-defence, that is not a message it should be sending

No, if it's self-defence you didn't do anything wrong at all. Self-defence isn't an *excuse* you offer to reduce your culpability for the wrong you did, it's exculpatory - you didn't do anything wrong. Provocation is a possible excuse. I do something wrong, but you provoked the hell out of me so I'm not as blameworthy as I would otherwise be. I made a mistake in part because I manifested characteristic human weakness which someone else cruelly and stupidly exploited. If it's self-defence then there's no mistake.

Posted by Anonymous : 7/09/2006 10:08:00 PM

James (and to some extent Stephen G): You are confusing "provocation" and "self defence". There is absolutely no proposal to change the latter - people are clearly entitled to use "reasonable force" in defence of themselves or others, and there is no proposal to change that at all. What is proposed is removing the law that says that someone calling you a "faggot" or a "nigger" is an excuse to kill them. Physical force vs words; please learn to distinguish between the two.

It is also worth noting that there is no general defence of "provocation" for assault. Instead, such questions (to the extent they arise) are dealt with at sentencing. And that's where they should be dealt with, along with every other question which weighs the severity of the crime.

Gooner: I agree, the law should be changed for the benefit of all. That's why I support a general repeal of this provision, rather than (for example) inserting a clause which says "a gay guy coming on to you may be rude, but isn't provocation".

Stephen G: It's one thing to get angry when someone insults you. It's quite another to kill them for it. What this law does is grant a licence to kill to the most violent and least self-controlled among us. And that's simply not something our law should be doing.

Posted by Idiot/Savant : 7/09/2006 11:10:00 PM

*Maybe* questions of provocation can be best dealt with at sentencing, but the sort of consideration that provocation represents seems to be very different from the sorts of individual life-story considerations (you had a rotten up-bringing so you have no self-control, etc.) that would seem to have a place at sentencing. Provocation reflects a judgment about the situation the accused found themselves in and specific regrettable actions the (in the murder case) dead person took to horrifically inflame the situation. You, i/s, don't appear to believe that there are situations where people can be pushed too far, where self-control breaks down in ways that could shape our conception of what crime has been committed.... but that just seems to reflect your lack of imagination. James sketched a couple of cases that are the sorts of extreme cases where self-defence (or other defence) is not at issue but where one has been wronged terribly and where plausibly anyone's self-control could be challenged... and then provocation starts to bite. (I guess the head-in-the-box end of _Seven_ is a good movie case.)

I haven't thought much about this sort of case or this side of the law, and it's at least possible that "provocation" ends up being ludicrously over-applied so that it doesn't make sense to keep the provision around at least in its current form. ("Homosexual panic" is ludicrous on its face. All of the cases I find most compelling involve being wronged and then being in some sense additionally provoked, but I gather that being hit upon by someone of the same sex was all the wrong suffered and was supposed to be its own provocation, as it were. It's very disappointing that juries bought that if so.)

But the basic idea of provoked, hottest possible blood changing the identity of the crime committed seems to me to be sound, and psychologically acute. If you drop the provision for this I'd guess that you risk jury nullification in a reasonable number of cases.

Posted by Anonymous : 7/10/2006 01:33:00 AM

Criminal law draws a distinction between cold pre-meditated murder and murder which occurs in the heat of the moment. And it should. While both are awful there are degrees of awfulness. Cold premeditated murder SHOULD receive the highest sentence and the highest level of condemnation- which is not to say it is ever ok to murder someone.

Provocation is one mechanism for drawing the distinction. I am unconvinced we should get rid of it. However, what constitutes provocation is amenable to reform. I don't think someone making homosexual advances (or heterosexual advances) should count as provocation. But possibly a prolonged campaign of sexual harrassment and stalking could.

Posted by Amanda : 7/10/2006 08:20:00 AM

Graeme Edgeler wrote:
While society accepts that homosexual advances can cause such an extreme reaction, yes. The problem isn't the law, it's the opinion society has of homosexuality, change that, and the Phillip Edwards's of the country won't be able to fake this as an excuse.

Well, I'm sure there are people in this country when believe a rape victim has so 'dishonoured' her family, it is intolerable that she be allowed to live. Or how about the provocation of a woman being seen walking in public with a man who isn't a blood relation or a spouse? I'd be more than a little careful about running the "the law isn't the problem, it's cultural norms" argument in a multicultural, multiethnic society unless you're willing to wear the consequences.

Gooner wrote:
The law should be changed for the benefit of all, not just homosexuals. Discuss.

In future, make sure you don't talk to any woman in my family. It's so 'provocative', I might just lose all self-control and beat you to death.

Posted by Craig Ranapia : 7/10/2006 09:04:00 AM

There's a problem with the whole notion that people are "derived of the power of self-control" and "thereby induced" to commit homicide.

If I lose control, I'm responsible for having lost it.

Your emotional state would not make an adultery you committed not really adultery, a contract you've signed in a fit if pique invalid, or an assault you commit not really assault.

Graeme claims that people should exercise self control, and if they can't then that's their fault.

But then he says that also there are those who are so provoked they "lose the ability to chose". That last bit doesn't make sense. Does he really think people normally sit going "Oh, shall I exercise self control now or fly into a blind rage? Let's see..."

The world does not force people to give up control of themselves and their acts. The world might provoke you, harass you, mock you, insult you and push you. But it does not force you to give up control of yourself and your acts.

If the line we speak of varies from person to person (and it obviously does, as Craig and Graeme both point out), then it not "the world" as fault. It's the person.

Posted by Icehawk : 7/10/2006 01:26:00 PM

Idiot/savant, it is you who has confused provocation with self-defence, nowhere did I mention self-defence.

The examples I gave are real provocation examples, where the person deserves less than murder, but as they were not under immediate threat could not be fully acquitted by s-d (hence the partial defence for less culpability).

Your opinion was a uneducated knee-jerk reaction, you can't even say for certain that Edwards successfully raised provocation, my money says he was unsuccessful.

Posted by james cairney : 7/10/2006 04:17:00 PM

There's a problem with the whole notion that people are "de[p]rived of the power of self-control" and "thereby induced" to commit homicide.

There's no problem with it. You just don't believe it exists. But there are more things in.....

If I lose control, I'm responsible for having lost it.

In some sense, yes, it's not exculpatory like self-defence but it is mitigating.

Your emotional state would not make an adultery you committed not really adultery, a contract you've signed in a fit if pique invalid, or an assault you commit not really assault.

The details really matter in these cases.... In some cases there's reduced culpability alright, in other cases you can't do the legal deed yourself you have to have a lawyer do some of the work precisely to ensure that everything's entered into "in a cool hour" (this is true about contracting-out agreements under the Property (Relats) Act).

Graeme claims that people should exercise self control, and if they can't then that's their fault.
But then he says that also there are those who are so provoked they "lose the ability to chose". That last bit doesn't make sense. Does he really think people normally sit going "Oh, shall I exercise self control now or fly into a blind rage? Let's see..."


No he doesn't! Graeme just accepts the broadly commonsense picture that people can be pushed beyond the point where self-control is possible. The commonsense picture (absolutely due to be vindicated by refined cognitive science modelling in my view) is straightforward: people are approximately rational, intentional systems under normal conditions but that can break down. The image of blood boiling is a good one.... beyond a certain point it's just chaotic turbulence not rational flow, and the transition from roughly orderly behavior to complete chaos is not itself a choice made from within the original zone of rational order any more than the liquid being heated chooses to start boiling.

The world does not force people to give up control of themselves and their acts. The world might provoke you, harass you, mock you, insult you and push you. But it does not force you to give up control of yourself and your acts.

Sorry, but you're just showing what an inadequate picture of human beings you possess - one that's an occupational hazard of those who think for a living! The "you" you describe is something about your body that can be crushed like the shell of a bug... all of the rational control you think is essential to you is indeed very precious but it's not all of you at the best of times and at the worst of times it can be completely take away from you.

If the line we speak of varies from person to person (and it obviously does, as Craig and Graeme both point out), then it not "the world" as fault. It's the person.

Graeme *doesn't* say this, I think.... despite his invocation of "in fact" he's suggesting that communal views about what constitutes a kind of situation that constitutes provocation that would be 'suffient to deprive" hence diminish anyone's ("a person having the power of self-control of an ordinary person") culpability in the circumstance do evolve and are normative through and through. Both sufficiency and what's ordinary power of self-control are normative judgments. That you boiled over is a fact, but perhaps you shouldn't have (you could reasonably be expected to have taken what the world dished out to you). What happened wouldn't have been sufficient for the ordinarily empowered person to explode. You are instead revealed as a hot-head, someone with a low boiling point, a short fuse and so on.

Views about the content of the relevant normative judgments change over time and will in turn determine who'll be condemned as a hot-head and who'll be offered the extenuation of having been provoked. Craig's cases both seem to fall well below the normative threshhold I'd expect to hold in NZ, but juries can and do disappoint and some local variation should be expected in any case. That's life - laws don't apply or interpret themselves.

Posted by Anonymous : 7/10/2006 04:59:00 PM

James: both the examples you gave are ones where self-defence (or defence of another issues) can clearly be raised, and which involve actual, physical violence.

"Provocation" allows killers to be held less culpable for reacting to words.

As for Edwards, he pled provocation, and got manslaughter as a result, in circumstances where he clearly intended to kill. Quod erat demonstrandum.

Posted by Idiot/Savant : 7/10/2006 05:51:00 PM

Idiot/savant: In a blog about provocation, you interpreted my examples as being defence examples, i did not once mention self-defence, and both are typical provocation claims before our courts.

A battered spouse who strikes back at an abusive partner will generally have no success with self-defence, as they typically poison, strike while the abuser is asleep, or when their back is turned. Provocation is their only hope of avoiding a murder charge- and you want to remove it. Which effectively exposes them to the life sentence presumption, and makes them as culpable as he who calously shoots someone during a bank robbery.

And what is your basis for this assertion? The utter guess that Edwards raised provocation. You state; "In circumstances where he clearly intended to kill"
'Clearly', Really? Do you know something that the rest of the country don't? It would make Edwards one of the only people on the planet who intended to kill and used nothing aside from his fists, no strangulation, no kicks to the head, no weapon or household object(they were in a house), yet somehow you draw the sweeping conclusion that he 'clearly' intended to kill. Is this your intuition as a savant? or are you just an idiot?

Newsflash mate, homicides with fists generally don't end up murder. It is not impossible sure, but the more likely scenario is that the jury found he lacked intent or foresight.

Also, do you realise that provocation is only a partial defence, and the maximum sentence for manslaughter is life (which occasionally gets handed down). Yet the Judge, who heard all testimony and evidence, only handed Edwards 9 years. Or are you part of the 'Sensible' Sentencing Lynch-mob, and believe that the Judge was 'too soft'.

Posted by james cairney : 7/10/2006 08:30:00 PM

"Provocation" allows killers to be held less culpable for reacting to words.

if in the circumstances of the case the words were sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control.

Posted by Anonymous : 7/11/2006 02:21:00 AM

I trust this law change will end the "heterosexual panic" defence of all those women murderers too.

Posted by Hans Versluys : 7/12/2006 09:32:00 AM