The current spotlight on the provocation defence invites consideration of some interesting counterfactuals which dwell upon the gender, sexuality and power relationships in play.
Such as, would either (any?) of the women who alleged sexual harassment by Richard Worth have gotten away with pleading manslaughter if they’d killed him in response to his sexual advances?
L
Of course not, after all women who are sexually harassed by a straight man should just grow up and ask their workmates/bosses/girlfriends/boyfriends/husbands for help. It’s only reasonable to kill if the a woman leaves you or a gay man makes a pass.
Anita beat me to it. There’s a whopping double standard in play here, and it needs to be eradicated.
Clearly rhetorical questions posted for polemic effect aren’t so obvious in bloggery :)
L
Lew,
*grin* but you gave me an opportunity to link to that particularly vile post :)
I get the feeling I will get my pseudonymous ass handed to me here, but what do you all take on the defence being used in cases where there is physical (specifically: violent) provocation?
I have seen you all touch on this, so to speak, elsewhere, but not enough to ‘get’ your position.
Maynard J,
IMO there is a difference between reasonable self defence against an immediate threat (which is protected by s48 of the Crimes Act), and a violent response to provocation which did not provide an immediate threat (s169).
In every case we have discussed the defence was provocation not self defence – for example Weatherston does not claim he took the knife to her house because he was defending himself against her, he claims he took it there because her leaving him (and the way she did it) mean he lost self control and (over several hours) took a series of actions which ended with him stabbing her to death.
My personal opinion is that we need to retain the defence of self defence, but not the defence of provocation. If a friend tries to rape me I should be able to push them away as hard as it takes (self defence), I should not be able to come back the next day with a gun and claim the killing is not murder (provocation).
Others may disagree, but the line in law is very clear.
Er there is actually a treble standard because you guys are advocating for life imprisonment. A life for a life …
The debate ought to take into account the repercussions as well as the principle. You can compain about the principle, no problems, but the repercussion is quite reactionary and to ignore the repercussion and just complain about the principle will mean that some maladjusted people who strike a difficult situation will be branded as murderers.
I am not advocating for them. I just think we should look at the whole situation rather than look at part of it and vent our spleen about it.
Weatherston hasn’t “gotten away” with anything. He’s made a plea which is unlikely to work for him.
In terms of the current sentencing regime it could very well be argued that women accused might benefit from a provocation defence of reducing murder to manslaughter.
I guess I know the answer to the woman leaving me but why does our society accept the ‘horror, shock’ of a homosexual advance. Is the hetrosexual virginity so important that it justifies killing another human being? If it was actually rape I would accept a manslaughter defence just as I understood the defence argument was accepted for a woman being raped a good many years ago and killing the offender. I think it was in a marraige situation.
I think both Cactus Kate and Tony make valid points in their way. Men are idiots when their brains move to their penis. Similar to some of the women portrayed in “A Bunch of Amateurs”, embarrasingly well acted.
Another rhetorical question raised is:
“Where is Garth McVicar on this, and why is he so uncharacteristically quiet?”
MJ,
Curious as to why you’d think that a question worthy of arse-handing? But anyway, Anita’s response sums up my views: self-defence is a different matter altogether.
micky,
We’d only be advocating for an actual life sentence if life actually meant life in NZ. It doesn’t; life is a nominal sentence only, as the hang’em-flog’em lobby continually reminds us. Nevertheless, I’m open to the argument that there should be a commensurate review of penalties to go hand-in-hand with a repeal, and if ‘life’ were to actually mean life (convict sentenced to die in prison) I certainly wouldn’t be advocating it as a mandatory penalty for any offence.
The matter sticking in peoples’ craws isn’t the sentence being too light – it’s the designation attached to the defendant who successfully pleaded murder away to a lesser offence on what is essentially a legal technicality.
L
Neil,
That can certainly be argued, but that’s the point of this post – it doesn’t really play out that way in reality. Gaye Oakes, for example.
L
Lew
I am always fascinated by this. Somehow a 10 year sentence is a “slap on the back of the hand with a wet bus ticket” but “life is life” and 10 years in jail is easy but life imprisonment will persuade people not to do something.
We really need to get our heads around this. I have never thought that a sentence of greater than 10 years served anything except for the desire for retribution.
micky,
Indeed. Perhaps I wasn’t clear enough: I agree with your premise that advocating for more people to be imprisoned for longer by removing a defence is potentially regressive. However I don’t think that’s a reason not do do so. I have strong misgivings about the efficacy of prisons for rehabilitation or correction, but that, to me, is an argument for reform of prisons and possibly for changes to sentencing policy, not an argument for the abolition of prisons (as the slogan on the side of the Abel Smith St collective house, which I walk past twice a day, calls for).
I think there are some crimes which should be punished by lengthy terms away from society, and that murder (of any kind) is one such crime. That’s not to say I think the system we have at present is much good, though.
L
But remember, chaps and damsels, it’s those nasty *feminists* who talk about men like they’re just animalistic, irrational thugs and not sensible, intelligent human beings!
Indeed. How dare we.
feminists don’t talk like that and stereotypes like ‘men think with their dicks’ are only a way to minimise men’s responsibility for their own misdemeanours. in fact a much better feminist point would be precisely to point out that men are not ‘animalistic, irrational thugs’ and instead human beings who are capable of understanding the consequences of their actions!
Michael, right. And ought to be held to account for them.
L