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Sunday 12 October 2008


The provocation defence in criminal law

Posted in: Features
By Charles Charles MP - 24th August 2007

Charles_Chauvel_1.jpg
Charles Chauvel MP
The recent debate over allegations of historical sexual offending and the Child Discipline Bill reminds us that there are groups, such as women and children, who suffer from unacceptable levels of bullying and outright violence in New Zealand.

Gay, lesbian and transgender people have also suffered in this way. Nothing that contributes to encouraging or allowing these levels of violence should be allowed to continue. We have all read of criminal cases where such violence has occurred – Jeff Whittington, David McNee and Stan Waipouri are some of the latest men whose names have joined the list of victims. The so-called “Gay Panic Defence" contributes to the normalisation of this violence.

“Gay Panic Defence” is a shorthand label, not an accurate legal description. In reality it is one of the ways that the law of provocation operates. Provocation is a defence to murder contained in section 169 of the Crimes Act 1961. When it is pleaded successfully, it reduces a murder charge to a manslaughter conviction.

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. In other words, once a judge considers that the threshold test for the existence of the defence is met, the question of whether the provocation was sufficient to reduce the blameworthiness of the defendant is a question solely for a jury.
The threshold test that the judge has to apply is extremely – unacceptably - low. A judge may think there is a bare level of evidence of provocation - and therefore be required to let the offence go to the jury - but privately may not believe it is sufficient to actually reduce the charge. However, in the same case the jury may reach a different view and find that the provocation was enough to reduce the charge to manslaughter.

The difference between a conviction for murder and one for manslaughter is that a murderer must be sentenced to life in prison. Someone convicted of manslaughter can, and usually does, receive a much more lenient sentence.

The unacceptably low threshold requiring a judge to decide that evidence of provocation exists - and should therefore go to a jury - needs to be raised so that a crazed reaction to a mere advance or affectionate touching is never enough to let a homophobic killer escape a murder conviction.

We have to remove the “Gay Panic Defence" from our laws. If a man is on the receiving end of an unwanted advance from another man, then the law needs to show that he just needs to learn to say “no”. If the advance is accompanied by unwanted physical contact, then reasonable – but never deadly - force to repel the contact should be the absolute maximum allowed by the law.

This is as an important issue as any other law reform affecting our communities. Those other issues – civil unions, relationship property, care of children, human rights protections and homosexual law reform – are vital advances of which we can all be proud. But provocation, as it currently operates, literally allows people to get away with murder.

Other jurisdictions have already restricted the availability of the defence. Victoria, in Australia, is one of the latest, operating on the recommendation of its Law Reform Commission. Our Law Commission is currently considering this question. I encourage members of our communities to write to the Commission, or to the Minister of Justice, Mark Burton, about this important issue.

GayNZ.com has already had some excellent coverage of this matter. An example, "Sorry David, it's all your own fault," is linked below.

For more information, see the following page on my website, alternatively, go to AllOurRights for background information. The Law Commission website is also linked below, and the Commissioner with responsibility for this particular project is Dr Warren Young - WYoung@lawcom.govt.nz.
Charles Charles MP - 24th August 2007