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Thursday 15 April 2010

Editorial: The Ambach trial and 'gay panic' defence

Posted in: Features
By Jay Bennie - 9th July 2009

From the first day police released information in early December 2007 about the disturbing killing of an elderly gay man in the Auckland suburb of Onehunga, has kept on the case.

Auckland's High Court
We have reported in detail the progress of police investigations, descriptions of the crime scene, and filed reports, so many reports, from the court, starting with Ferdinand Ambach's first appearance to hear the charges laid until the jury's manslaughter verdict just minutes ago. Why?

Further back than any glbt person alive can remember gays and transgenders, and occasionally lesbians, have been singled out for extreme violence and, too often, death at the hands of those who take exception to us. In recording for posterity, and presenting to present day readers, the details of Ronald Brown's death and his killer's appointment with justice we hoped to somehow honour Brown and all those whose lives were taken or wrecked in past times because they were gay, like you.

In the past, due to the tyrany of geography, the primary gay reporting of such shocking deaths has largely been done through the eyes of straight journalists writing for general media and reported second-hand in the glbt media. Not this time. This attack and subsequent trial were in the same city where is largely resourced, and so we were able to gear up to report daily and in detail, a first for NZ glbt media.

Ferdinand Ambach (Pic: NZ Herald)
Over the past three weeks senior writer Matt Akersten, spelled several times by the indomitable David Herkt, turned up in the chill of each morning, sat through the interminable detail of courtroom procedure, taking screeds of notes and quotes and phoning in instant reports from the court foyer. Matt joined the jury's tour of crime scenes and listened as the shocking events of that night were described in the very places they had played out. He and David glimpsed some of the grisly evidence and sat just two metres from, and sometimes eye to eye with, the man who had brutally killed a fellow gay. Their commitment and professionalism have been remarkable.

From careful observation every day from the press bench in Courtroom 7 of the Auckland High Court through to the final sub-editing of the material into immediately published features and news stories this was a gay tragedy observed by gay people for gay people.

Ronald Brown
Another reason to give this case such intense coverage is the likely introduction of a bill addressing the iniquitous 'partial defense of provocation' provision in the Crimes Act. This loophole, so beloved of hard working defence lawyers, is often called 'gay panic' defence: the assertion that the mere belief that a gay person is showing a sexual interest or is, well, just gay, is enough to partially justify any ordinary, right-thinking New Zealander reacting with extreme violence. Because a homosexual at close quarters is so shocking or threatening or evil or predatory or malevolent or life-destroying or unprincipled or... well, you get the picture.

It is a defence strategy that has seen murder charges downgraded to manslaughter or less and at least one brutal assailant walk free from the court. It frequently misrepresents and demeans the gay victim and always appeals to the prejudices of jury members. Right from the start we wanted to see if and how the Ambach case played out as a possible example of 'partial defense of provocation' used in court.

There will, sadly, be more tragedies like this one. Indeed there are already two more lurking in the criminal justice queue. Although we are unlikely to be able to lavish the same resources on those cases as we have on the trial of Ferdinand Ambach for Ronald Brown's brutal death, they are no less important and no less moving. will report those cases objectively, professionally and ethically, but at the same time we fully support the call by the Law Commission, MPs and glbt organisations to have the partial defence of provocation provision struck off as a legitimate defence, with provocation relegated to an issue the judge may take into account in sentencing, as soon as possible.

- Jay Bennie

Jay Bennie - 9th July 2009

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