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Friday 10 October 2008

Law report: "Repeal Gay Panic Defence"

Posted in: New Zealand Daily News
By News Staff - 26th October 2007

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Gay Labour MP Charles Chauvel says he welcomes today’s call by the Law Commission to remove the 'Gay Panic Defence' from NZ law.

The Defence, contained in section 169 of the Crimes Act 1961, allows a murder defendant to claim that he was the object of sexual advances by the victim, and found these advances so offensive that he was driven to murder in a psychotic state. If the defence is accepted, the murder charge is reduced to manslaughter.

Wellington rally to abolish Gay Panic Defence in May 2007
There must be some – but need not be much – evidence of provocation before a judge lets a jury consider whether it should be available as a defence. The threshold test that the judge has to apply is extremely low, points out Chauvel.

Around 100 people met at bucket fountain in Wellington's Cuba mall to rally against Section 169 back in May.

“Section 169 of the Crimes Act 1961 must be repealed,” Law Commission President Sir Geoffrey Palmer said today.

‘Gay Panic Defence' is a shorthand label, not an accurate legal description. But as the Law Commission recognises, it is one of the main ways that the provocation defence operates. Of the four known cases in the past five years when the provocation defence has been pleaded successfully, two have involved the ‘Gay Panic Defence'.

“We do not believe that such circumstances offer a valid excuse for murder," said Sir Geoffrey.

“More broadly, and more importantly, intentional killing in anger in any circumstances is inexcusable. Section 169, as interpreted by the courts, requires the defendant to have demonstrated the self-control of an ordinary person. But even when very angry, no ordinary person responds to any provocation by deliberately killing. That is an extraordinary and inexcusable response.”

“If provocation is repealed, only one thing will change for defendants who would formerly have relied upon it. They will be convicted of murder instead of manslaughter. That is all that a partial defence achieves.”

Chauvel praised the Law Commission report, which he said was carefully researched. "It notes that in the half-dozen other jurisdictions over the past 30 years where this issue has been considered by a law reform body, the provocation defence has been abolished.

"I will be writing to the Minister of Justice to urge that the Law Commission's recommendations be accepted," says Chauvel.

Ref: Charles Chauvel, Law Commission (m)