Thursday, July 23, 2009

Lucia Removal of provocation defence stupid [UPDATED]

Living in New Zealand is like living in the Twilight Zone.

Manipulation of the public has been honed to a fine art.

Case in point - the desire of some to remove the defence of provocation because it has been used to justify killing homosexuals who proposition the wrong guy. But until the Weatherston defence, there wasn't enough public outrage to justify the law change.

However, the daily updates of the apparently completely sane Weatherston trying to make out that Sophie Elliot made him torture and mutilate her to death has sent most of New Zealand over the edge. Rather than asking why on earth the Judge involved allowed such a defence when it was patently ridiculous, she allowed Weatherston to make a mockery of her court for five days.

Thus giving those who really loathe the idea that some men might kill another man who is coming on to them a reason, finally, to remove the defence of provocation. Nevermind the fact that if Sophie's mother had flipped out and murdered Weatherston in cold blood after finding Weatherston over her daughter's mutilated body, that provocation be a suitable defence. How many people would kill the murderer of their own child if faced with such a horrible scenario? And should they be deprived of a defence just because of a Government knee-jerk reaction?

Related Link: Provocation Defence Defended ~ News Talk ZB

[UPDATE] Bloggers against removing the provocation defence
Provocation and the ‘homosexual advance’ defence, Provocation 2, Provocation 3 ~ Stephen Franks
In Defence of the Partial Defence of Provocation ~ M & M
The Provocation Defence needs to remain ~ The Beretta Blog
Mixed Emotions are the Required Response ~ Contra Celsum
Provocation ~ HalfDone
Manslaughter and Every-onbe uses the defense of provocation ~ ZenTiger

21 comment(s):

Francisco Castelo Branco said...

How is the environmental in New Zealand?

Pacific or violent?

this was a revenge situation?

Madeleine said...

Someone else who can see the emperor is naked!

The number of bloggers so far on the correct side of this debate can still only be counted on one hand - appalling!

Lucia Maria said...

Francisco, huh?

Are you using a language translator?

Lucia Maria said...

Ok, if you are saying what I think you are saying, the answer is yes, this was revenge on the part of the killer.

Lucia Maria said...

Madeleine,

I almost didn't write this post. It was late at night and I really needed to go to bed, but, I think it was reading Peter Cresswell's post on the subject that really set me off.

This issue, and a number of others, is really highlighting the conservative/liberal split in NZ.

x said...

"Case in point - the desire of some to remove the defence of provocation because it has been used to justify killing homosexuals who proposition the wrong guy."

The hungarian tourist case? Seems it was more than a proposition as contact was obviously made that would amount to attempted rape if the pair were man and woman. Gay issues are so uttery distorted in this country. Gays are treated like sacred cows instead of humans.

Andrei said...

Is nobody thinking straight - present company accepted of course.

The court, judge and jury have to presented with a full version of the facts from everybody's perspective including that of the accused if justice is to be done.

Logic 101 I'd have thought but then lynch mobs are notoriously illogical.

Lucia Maria said...

Andrei,

it seems that straight thinking in this country is in rather short supply.

There are those with an agenda who have been waiting for a case like this to inflame the public, then there are the politicians who want to be seen to be doing something. Rather than making sure our laws are robust, they instead are creating a situation where checks and balances are slowly being removed.

One other issue which stunned me when I heard it a few weeks back, but which hardly made a ripple in the MSM was Labour's law they passed last year coming in force allowing verdict by majority jury. I couldn't believe it - having total agreement of the jury on verdicts, no matter how inconvenient, has been the mainstay of the justice system for centuries. But National's like, oh yeah, that's fine.

What the?

I'm getting to the point where it's too hard to comment on the insanity around me anymore - because there's too much of it!

Lucia Maria said...

X, yes, and I heard there was the possibility of date rape drugs being used which accounts for the extreme reaction.

Madeleine said...

I don't know if it highlights the conservative/liberal split so much, given I'd put myself in the liberal camp and I support the defence of provocation remaining and Stephen Franks is on our side also, but it definitely highlights the sacred cow thing X is speaking of.

I mean what is it about some aspects of sex that makes normal, right thinking people suddenly throw their reasoning skills out the window?

It is the same thing Matt highlighted in his Illiberality of Abortion series and that I was speaking of in Homosexuality and the Right Wing Socialists. The harm principle is the be all and end all, shove your empathy aside, its all about personal responsibility and understanding actions have consequences but for when the harm is being imposed on a fetus, then suddenly its all about empathy for the person who failed to take responsibility to the point someone else can be killed.

Ditto in this case. This is a gay lobby agenda that's been simmering away for ages, it is part of their crusade to make everyone love, support and embrace what they do in the bedroom, to eradicate all elements of critical thought from society. The Weatherston case, as you pointed out, is just timely convenience.

Liberals can apply their reasoning fairly consistently in every other sphere but when it comes to homosexual conduct or abortion they suddenly set all that aside and start reasoning like Sue Bradford - literally in this case as the no defence should be allowed to be raised thing was most recently seen in the anti-smacking argument!

Lucia Maria said...

Madeleine,

You're probably closer to conservatism than you think. Have a look at my post on the Principles of Conservatism and see if you agree with most, if not all of them. Definitions of political affiliations are tricky, as what one person means by conservative or liberal is not the same as what another person means. I had to laugh last year when John Key was called "conservative" and even wrote a short post detailing why he was not.

I mean what is it about some aspects of sex that makes normal, right thinking people suddenly throw their reasoning skills out the window?

I think it's morality turned on it's head. People with questionable morals want to feel like they are moral about something, and typically choose the cause of the day. Right now it's gay rights. In the future we could be all inflamed by chimp's rights. Or trees rights.

I think also those that do not have an absolute moral compass are used to lying to themselves, therefore, they can with hand on heart convince themselves that right is left and up is down.

Insanity, insanity, everywhere insanity. Teaching mathematics and latin and reading, and taking the kids to soccer and swimming is a haven for me right now!

Psycho Milt said...

Right now it's gay rights. In the future we could be all inflamed by chimp's rights.

Actually, the term is "human rights," which includes gays and excludes chimps or trees on a fairly obvious basis.

As it happens, I agree with you on this issue. Some people want to ditch a legitimate partial defence on the basis that juries sometimes return a verdict those people don't like - as already mentioned, this was last seen in the S59 debate and was just as crap in that debate as in this one.

What I don't get is why you think somehow Teh Gays are to blame. So, they don't like people getting away with murder for killing gays? Well, that's not exactly a shameful or unworthy reaction, is it? I don't like it either. Would you like it if people got off with manslaughter for killing Christians who tried to proselytise to them? No doubt there are countries where that happens right now - do you think anyone sticking up for the Christians would be someone of dubious morals trying to cover up for it?

ZenTiger said...

What I don't get is why you think somehow the Gays are to blame

No, Lucia is not saying that at all. She's saying Gay's think the issue is all about them and therefore see a perfectly valid legal defence needs to be removed because being Gay is (to them) more important than justice.

The thing is, if some-one kills a Christian, or a Gay person, or a Labour Voter, or an unborn child, they can all claim provocation.

Like Clayton, they might find the defence fails if used unreasonably.

scrubone said...

Thought I'd point out that I blogged on this today, taking the same side.

Though it's not something I plan to get very upset about.

Lucia Maria said...

Ah yes, Scrubone, you did. Sorry about that, I missed your post. I've added you now.

Sean said...

What is most strange is Farrar's submission to emotion. He is normally so much more rational and level-headed. I am surprised by his recent posts on this issue, especially his love of National and the papers reacting so quickly on such a wide-reaching issue merely based on the aspects of one murder case. I can't think of a more valid reason to say "lets take a step back on this and THINK about it". As Zen so clearly pointed out, Weatherston's use of this tactic failed, as it would again and again if abused. There are plenty of cases where provocation is real, and it needs to be considered by the courts. Removing this consideration based on one emothiopnally-charged case is irresponsible to say the least.

Not sure how this morphed into murdering gays though. I tend to share Psycho Milt's views here.

Good on Francisco for commenting on an English-language blog. No doubt he is a native Spanish speaker (merely deduced from the name). Being a native English speaker struggling to learn Spanish, I will never tease poor English again!

Andrei said...

Not sure how this morphed into murdering gays though. I tend to share Psycho Milt's views here.

The reason is thus Sean and PM.

The gay activists have been gunning for this law for some time using the
sniffy term GAY PANIC DEFENSE.

They have had some success and have even drafted the law but until the Weatherston trial their initiative was stalled.

Actually in recent times the so called "Gay Panic defense" has not usually worked for the defendant - juries don't usually buy it.

But the case that caused outrage in the Gay community was the murder of a late middle aged gay by a low life who did succeed in getting murder reduced to manslaughter.

And what caused the outrage was the revelation in court of the victims long term predatory behavior towards vulnerable young Polynesian males.

Just because someone is the victim of murder does not morph them into Mother Therasa and they may bear some culpability as to what happened to them.

The second more recent case involved another late middle aged man who plied his killer a much younger man with alcohol and very possibly benzodiazpines. A very strange case indeed. The killer was found cowering in a cupboard in a disoriented state in a trashed flat with the victim downstairs.

The killer had no knowledge of what had occurred and by all reports doesn't to this day.

Damned if I know - there are over fifty murders a year in NZ, hardly any of them have a Gay aspect, maybe one every couple of years, but when they do it becomes a "hate crime".

I don't like people getting away with murder regardless of who the victim is PM. But I am not going to buy into the victimology game either.

Sean said...

Lets steer clear of stupid terms like "hate crimes" because they are always taken advantage of.

When a sexual advance occurs - either of homosexual or heterosexual nature - and even when rape is or is likely to be involved - I really struggle with killing the perpetrator. Of course the circumstances are critical here, and this is where a jury of one's peers must determine what is fair and reasonable, not some politicians overreacting to some TV news items.

In saying that the gay community probably has some fair concern considering the stigma over homosexuality that still exists today. I guess their concern is that a jury will determine unfairly that excessive force was warranted in such a case, and to a certain extent I can see why they might feel this way.

Andrei said...

When a sexual advance occurs - either of homosexual or heterosexual nature - and even when rape is or is likely to be involved - I really struggle with killing the perpetrator.

We all do Sean - nobody is condoning violence, in fact we all abhor it!

Of course the circumstances are critical here, and this is where a jury of one's peers must determine what is fair and reasonable, not some politicians overreacting to some TV news items.

And what the promoters of this legislation want to block is the putting of the circumstances before the jury to determine what is fair and reasonable

I guess their concern is that a jury will determine unfairly that excessive force was warranted in such a case, and to a certain extent I can see why they might feel this way.

I wonder - here is a list of cases compiled by GayNZ concerning violence against Gays and the "homosexual panic defense". The list goes up to 2007 and as far as I know there has only been one case since then. But this list details 8 murders since 2000 out of which the provocation defense was invoked 5 times, being successful exactly 2 times both in 2003. It was also successful in the latest case. So in three cases out of six it has been successful in the last nine years by my reckoning. Nor does the perpetrator "get off" when it does succeed, they are convicted of manslaughter instead of murder. Their actions are not in any way justified.

I find the concept of middle aged men supplying booze and drugs to teenaged boys in their homes kind of sleazy but I don't know if that is homophobia because I think I would be even more repelleled if it was teenaged girls who were the recipients of such attentions. Call me old fashioned if you will.

ZenTiger said...

You haven't explicitly said it Sean, but I presume you feel your question was answered. I also hope you now understand this was not a post attacking gays, it was noting the gay activism behind the push to end the defense of provocation.

I'm not saying this as a conspiracy theory, I'm simply recognising the gay lobby is well organised and capable of politicising issues like this as a gay rights issue.

Thus, they position anyone interested in preserving the defence of partial provocation as simply some-one who is anti-gay.

Ironic, as a principled stand for acknowledging genuine situations where provocation may justify a lesser charge of manslaughter is cast as biased, when it is simply concerned with a fair trial.

As I said in my post on Clayton, I wasn't outraged that he tried the defence, but I would have been outraged had he succeeded with it. He didn't. I also predicted his case would be the cause for other cases to be revisited to try and force the law change again.

Sean said...

Well I guess Andrei and I agree on most the points he addressed.

So there were 3 "gay panic" defences that succeeded in recent times (in reducing the verdict from murder to manslaughter). I don't know of the circumstances of each but the decision must be fair and reasoanbale and it must follow the same pattern in the case where it was a heterosexual sexual attack. I guess the gay community don't feel this equality exists.

Andrei's final paragraph pretty much backs this suspicion up (albeit inadvertantly).

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