The Partial defence of provocation
Update December 2009
This Law Commission report from 2007 was of particular interest to our communities.
http://www.lawcom.govt.nz/ProjectReport.aspx?ProjectID=138 .
Earlier this year, we wrote to the new Minister of Justice, Simon Power, repeating the exhortations we had made to the previous Minister, to repeal this partial defence. Mr Power replied in quite a positive manner. Subsequent events were quickly to prove his intention, but we like to think that our campaign on this issue contributed in a small way to subsequent events.
Then the defence came to public notice as rarely before, in the Weatherston trial. Although it was not successful on this occasion (he was found guilty of murder) its use in this heterosexual case produced the public outrage that the many cases involving the killings of unfortunate gay men had failed to achieve. The Minister publicly announced his intention to repeal the relevant section of the Crimes Act. This was, however, still assumed to be part of larger piece of legislation. But then a members’ bill under the name of Lianne Dalziel (Labour’s Justice spokesperson) was drawn from the ballot in July, and the Government immediately responded with a bill of their own. Both bills closely reflected the model suggested by the Law Commission.
Ms Dalziel withdrew her Bill, and the Government sponsored Crimes (Provocation repeal) amendment Bill passed its first reading unopposed, and went to select committee.
See the Bill at: http://www.parliament.nz/en-NZ/PB/Legislation/Bills/0/d/3/00DBHOH_BILL9305_1-Crimes-Provocation-Repeal-Amendment-Bill.htm
This page links to all the debates on the Bill as well.
Rainbow Wellington made a submission to the Justice & Electoral Committee, as below:
CRIMES (PROVOCATION APPEAL) AMENDMENT BILL
- This submission is on behalf of Rainbow Wellington, a regional Wellington organization with some one hundred and fifty members and a mailing list of about six hundred others. Among other purposes we act as an advocacy group for lesbian and gay people and those of similar alternative sexual orientation.
- We support the proposed Amendment Bill.
- The defence of provocation has been used over many decades in this country in cases of murder involving homosexual men who have, or are said to have, made unwanted sexual advances to heterosexual men, enraging them to the extent that they have lost control and killed the person who has approached them. It is in essence a form of victim blaming. It is known in these cases as the gay panic defence and if successful reduces the offence to manslaughter. It was used most notoriously in 2003 in the case of Aucklander David McNee, and more recently in a case upon which we should not publicly comment because sentencing has yet to take place.
- It has been used in earlier times as a basis for jury decisions, in cases of ‘gay bashing’ (as it is known) such as that of Charles Aberhart, who was kicked to death in Hagley Park in Christchurch in 1964 by six young men who admitted their offence but claimed that they were retaliating for a sexual advance. They were acquitted by the jury, providing the perhaps best known New Zealand illustration of the use of the provocation defence to mask community prejudice.
- We believe that it has no place on our statute book because it rewards violent loss of self control when the basis for claiming provocation is quite unjustified and the victim cannot put the alternative version of what happened. This view is, we understand, endorsed by the Law Commission.
- If there are concerns about the need to take mitigating factors into account in cases involving e.g. retaliation by battered women, these can be adequately canvassed by counsel at the point of sentencing in the event of a guilty verdict. We note in that connection that the law has recently been amended so that this consideration is taken into account in sentencing for ‘hate crimes’ generally and the philosophy behind the provocation defence is inconsistent with and runs directly counter to that amendment.
- We urge the Committee to given careful consideration to this Bill and to recommend that it proceed by way of the repeal of the appropriate section of the Crimes Act.
Tony Simpson
Chair of Rainbow Wellington
We also asked to present a verbal submission, so, on September 10th, the inimitable team of the two Tonys (i.e. your Chair and Secretary) duly appeared before the Committee. Tony Simpson’s presentation, in supporting the Bill, concentrated on the appalling history of the clause in successfully defending a number of horrendous gay bashings, and pointing out the irony that it was an unsuccessful attempt to use the defence in the murder of a beautiful young woman which finally brought the reaction of outrage which forced the pace of reform. Our submission got quite a good airing in the news, especially Radio NZ and the Herald:
http://www.radionz.co.nz/news/stories/2009/09/10/1245c78f8790
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10596554
The membership of the Committee can be viewed at http://www.parliament.nz/en-NZ/MPP/MPs/MPs/Default.htm?pf=CommitteeShortName&sf=Justice+and+Electoral&lgc=0
The membership has changed a little since the date of our submission. One notable absentee was Simon Bridge (who later gave a superb speech in support of the Bill at 3rd Reading). The opposition side saw “extras” Charles Chauvel and Kevin Hague. Amazingly ACT, the only party likely to oppose the Bill, did not send any observers, showing their contempt one supposes for the whole process.
The only negative comment on the day was a rather mealy-mouthed contribution from local National List MP Paul Quinn, that we were part of a general emotional reaction, which over-emphasised the importance of the clause. We were unimpressed, and Tony easily answered him, supported by Charles. I suppose Mr Quinn just wanted to say something a bit negative, but it didn’t matter as we knew he would of course vote in favour of what was a Government Bill. Of more interest was the role played by Labour member David Parker, who chose to point out the main issues raised by the Law Society, the most significant opponents of the Bill. Tony dealt with those too with ease; the Society’s main role is of course to represent those defence lawyers who wish to continue using what is rather convenient clause for them. But Mr Parker’s role was a useful one, in that it allowed the Bill’s supporters to fully answer the Society’s points.
In general we felt that this was a most successful appearance, which gave good publicity to what Rainbow Wellington stands for. Although this issue was at last all but done and dusted, there was still some support for retaining the partial defence of provocation, so any contribution we could continue to make towards its repeal, the better.
The select committee reported back to the House, approving the Bill with no changes. It then sailed through its 3rd Reading, with only 5 votes against. ACT on this occasion decided not to support victims’ rights, thus making rather a mockery of their general campaign in this area. Their homophobic justice spokesman, David Garrett, even issued a press release denying that the clause had been used to justify gay-bashing. Such is their feeble grasp on reality. This vote by ACT clearly shocked many of Rodney Hide’s supporters in Auckland.
However, 117 members voted in favour, representing all the other Parliamentary parties, one of the best results of any campaign we could have hoped for.