Tag Archives: Provocation

Some of my best friends are men…

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Most of the talk about the trial of Clayton Weatherston and the killings by George Sodini has focussed on the anti-women sentiment and sexism woven into the discourse and society. But isn’t there anti-men sentiment in equal measure? Both are rooted in the idea that men cannot control themselves – when it comes to issues of sex and love men have no self control. The story it tells is that for men rejection becomes a killing rage without the chance of self-restraint.

In fact it’s rooted not only in the idea that men can’t control their rage, but in the idea that rage is their autonomic response to anything that goes wrong.

The prevalence of those myths and the unthinking acceptance of them doesn’t just lead to the deaths and beatings and rapes of hundreds of women a year, it also leads to the discounting and devaluing of masculinity.

I know so many good men: men who love, men who care, men with self control, men who do not have barely suppressed rage burning in their souls 24×7. Men who are diminished by every retelling of those myths of the generic caveman response.

When we finally repeal the provocation partial defence from the Crimes Act it will be a step forward not only for the women and gay men whose killings are trivialised by the defence, but also for every strong capable man whose masculinity is devalued by the idea that the measure of a man is his capacity to lapse into an uncontrollable killing rage.

Provocation and victims of domestic violence

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[I just wrote a rather long comment at The Hand Mirror about battered women and provocation, in response to people suggesting we need to maintain the partial defence of provocation to protect battered women. I am reproducing it here as it shows that the provocation does not help battered women, in fact it only protects their abusers]

The Law Commission has done a lot of work on this, and it appears that the provocation defence is not of value in “battered women syndrome” killings, so we lose no protection for women victims of domestic violence by repealing it.

Some Criminal Defences with Particular Reference to Battered Defendants

The Law Commission did a piece of work which focussed solely on defences for battered defendants completed in 2001 (Some Criminal Defences with Particular Reference to Battered Defendants – NZLC R 73. It shows that provocation is not an effective defence for battered women, and even that it has been successfully used by a perpetrator of domestic violence.

In R v Tepu a man successfully used provocation as a partial defence when he beaten his wife to death – her provoking act? going to the Police when he severely beat her

Partly in response to recommendations in that report the mandatory life sentence for murder was abolished in 2002, and judges have sentencing discretion for battered defendants.

The Partial Defence Of Provocation – NZLC R 98

From 2004 to 2007 the Law Commission did work specifically on provocation (The Partial Defence of Provocation) resulting in a recommendation for its repeal. As part of that they rechecked there would be no disadvantage for battered women and, in fact, did some handy stats.

Of the 81 homicide trials they looked at (2001 to 2005, Auckland and Wellington) in 15 provocation was used as a defence. In only one of those was provocation used as a defence by a woman. In that case, while the killer had experienced domestic violence, she killed her husband because he said he was leaving her. I won’t copy the description here (see p103 of report if you really want to), but it’s exactly the kind of killing-someone-because-they-say-they’re-leaving that we shouldn’t allow to be called manslaughter.

So there were go, the Law Commission has worked really hard on the issue, and provocation is not helping battered women who kill to protect themselves.

What if it were Worth?

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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

s169: enshrining a murderer’s right to blame the victim

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Clayton Weatherston put a knife in his bag, went to his ex-girlfriend’s house and stabbed her to death. He admits to all of that but he is pleading not guilty to murder, and s169 of the Crimes Act means he may only be found guilty of manslaughter. s169 says that blaming her is a defence, it says that if she provoked him and he killed her it is not murder.

It sounds far fetched, but it’s happened many times before. In 2006 Tevita Noa was found not guilty of murder; he had beaten his wife to death with a cricket bat after finding explicit photos on her cell phone. Amsheen Arif Ali stabbed Colin Hart five times, only manslaughter because Hart had made sexual advances toward him. Phillip Edwards bashed David McNee in the face 40 times, stole his car and possessions and boasted about it afterwards, only manslaughter because McNee, paying Edwards for sex, had touched Edwards’ anus.

s169 enshrines blaming the victim in law – it says that in New Zealand a man may beat a woman or a gay man to death as long as it’s their fault, her fault for wanting to leave, his fault for being gay.

In 2007 the Law Commission recommended the repeal of the section and … nothing.

Earlier this year Simon Power’s office told me

I expect to consider these proposals later this year, and will assess, at that stage, how any reforms of this nature might fall within the Government’s current legislative priorities.

But … nothing.

So, if you want to live in a country which doesn’t enshrine victim blaming in law, write to Simon Power and ask him to repeal s169 of the Crimes Act, ask him to treat the murder of wives, gay men and ex-girlfriends as murder.

[Many thanks to Idiot/Savant who has kept this issue on the agenda]