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Saturday 10 October 2009


Rainbow Wellington: "End provocation defence now"

Posted in: Comment
By Rainbow Wellington - 12th September 2009

In Parliament on Thursday 10 September, the chairperson of LGBT advocacy group Rainbow Wellington voiced a blistering attack against New Zealand's controversial 'gay panic' defence - labeling it "a homophobic hangover which should long have been done away with."

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The partial defence of provocation, which has led to several killers of gay men to successfully downgrade their murder charges to manslaughter, is now at last under debate before the Justice and Electoral Select Committee.

Rainbow Wellington's Tony Simpson told the committee that provocation was currently on the table only since the Clayton Weatherston case involving the murder of his former girlfriend Sophie Elliott - yet calls by the gay community to remove the defence had been ignored for years.

"It's very hard to escape the impression, from our point of view, that while it was just a few gays getting whacked nobody was all that concerned. But when a pretty young girl was involved somehow it was different," he remarked, adding that in essence the defence is a form of "victim-blaming."


Below is the full text of Rainbow Wellington's submission to Parliament on the Partial Defence of Provocation:

CRIMES (PROVOCATION REPEAL) AMENDMENT BILL

1 This submission is on behalf of Rainbow Wellington, a regional Wellington organisation 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.

2 We support the proposed Amendment Bill.

3 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.

4 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.

5 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.

6 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.

7 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


More information about Rainbow Wellington is on its official website.


Rainbow Wellington - 12th September 2009

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