|The partial defence of provocation is still a powerful force in New Zealand's criminal law, but has come under heavy criticism for its use as an excuse for homophobia, hetero-normativism and hate crimes.
For Victoria University's Salient magazine, Conrad Reyners investigated these allegations, and asks the question - is the existence of provocation still justified? Reyners now shares his findings with GayNZ.com.
In 2004 Robert Hunt, a quiet man and stamp collector, was savagely murdered. He was killed by 18 year old Dick Faisauvale, who held him by the throat and stabbed him. Hunt died on the floor of his home. He had collapsed after unsuccessfully trying to phone 111 for an hour.
At trial Faisauvale, who had previously had a sexual relationship with Hunt, claimed that he was provoked. He argued that he thought he was going to be raped by Hunt and was lashing out in gay panic. Faisauvale was running the defence of provocation.
The partial defence of provocation still exists on the state's law books. It sits nestled between the advanced definition of murder, and illegal arrest. Section 169 of the crimes act states, in all its legalistic glory:
169 Provocation (1) Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation. (2) Anything done or said may be provocation if— (a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and (b) It did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide.
The section is confusing and misleading. Yet the defence of provocation is still applicable in New Zealand. Traditionally provocation was used in cases of adultery. Enraged husbands coming home to find their wives in bed with the plumber led them to 'snap' and lose the ordinary power of self control. In abhorrent displays of masculine barbarism they murdered their wife, the plumber, or both.
To call provocation a defence is not entirely correct. It operates as a partial defence. Where it is successful it will reduce the offender's conviction from murder to manslaughter. The reason for this is twofold; firstly manslaughter is seen as a lesser charge in the eyes of society. It does not carry as much culpable weight as a conviction for murder would. The social stigma surrounding manslaughter is greatly reduced, and in the mind of a layperson conjures up images of accidents, a lack of intent, or even a lack of any grievous violence.
Secondly manslaughter has the widest range of sentences available for any crime. They can be as harsh as life imprisonment, or it is possible that no imprisonment order is made. In the case of a violent death this is unlikely, but it's important to remember the large degree of freedom that manslaughter places in the hands of the sentencing judge.
Provocation operates as an excusatory defence. It excuses the higher degree of culpability that a murderer faces. It does not justify the actions, but it does say, given the circumstances the offender found themselves in, society can understand what they did.
Faisauvale's use of provocation as a partial defence was unsuccessful - due in part to his previous sexual relationship with Hunt, and the fact that he took a knife to the house with the intent to commit robbery. However, Faisauvale's case is not the only one.
On the evening of 20 July 2003 Phillip Edwards (aged 24) was walking down K Road in central Auckland. A convertible driven by David McNee (aged 55) approached Edwards. After a discussion Edwards agreed to masturbate in front of McNee for $120 – Edwards had just been released from prison and was in need of cash. Edwards then agreed to return with McNee to McNee's home for a shower. While there Edwards displayed himself to McNee and both engaged in petting, and what the case describes as 'puppetry of the penis' – despite Edwards informing McNee that he was heterosexual. McNee then fondled Edwards' buttocks and inserted his finger into Edwards' anus. Edwards reacted violently and began beating McNee around the head and face. He stated at trial that he became "very angry" and that after the initial assault began everything "became a blur". Edwards then covered McNee's body with a blanket, robbed his home, taking money, alcohol and his convertible.
The pathologists report to the court indicated that McNee was struck between thirty and forty times. The assault was so severe McNee could have only survived for fifteen minutes after Edwards had stopped.
The case does not make for polite reading. On the facts presented to the Court it does appear that McNee may have overstepped the boundaries of what Edwards thought acceptable. There was obviously a failure of communication, and probably a misunderstanding of what Edwards was comfortable with. Such confusion is an inherent factor of these types of cases. But the question arises: is it just and fair for Edwards to plead provocation? Is it justified and right that by relying on farcical 'fear' Edwards was able to successfully reduce his charge from murder to manslaughter?
The McNee case sent shockwaves throughout the homosexual community, and it featured heavily in the media. The decision seemed to suggest that the hard work done to change social attitudes since the landmark passage of the Homosexual Law Reform Act in 1986 had been in vain. Peter Wells writing in The Listener in 2004 wrote "I couldn't comprehend how [McNee's] behaviour could be a justified reason for such a revolting and violent killing – or a rationale for such a killing to be down classed from murder to manslaughter. It evoked in me a sense that homosexuals living in New Zealand were still second class citizens – 'almost' humans, who would never get full human rights."
The decision in R v Edwards showed how the partial defence of provocation was entrenching this abhorrent viewpoint. In the right circumstances, and with the right facts, the defence was capable of being a justification for homophobic violence and institutionalised bigotry.
Such a claim is bold. But it's one that Elisabeth McDonald, Associate Professor at the Victoria University Faculty of Law, stridently argues in 'No Straight Answer: Homophobia as both an aggravating and mitigating factor in New Zealand Homicide Cases'. She bluntly argues that where provocation in gay panic cases is successful "gay male citizens are not afforded equal protection under the criminal law". The legal arguments she posits form much of the basis of this article. McDonald also argues that where provocation is not successful, judges should give greater weight to section 9(1)(h) of the Sentencing Act 2002, which allows homophobia to be considered an aggravating factor in sentencing. The fact that some offenders try to rely on a ‘gay panic' argument provides ample reason to suggest their actions were motivated by homophobic revulsion of some kind. Where this can be shown judges should include that into the severity of their sentence, just like any other aggravating factor.
SEX AND SEXUALITY
Provocation is inherently hetero-normative. Its very existence reaffirms the status quo position of heterosexual males occupying the top of the social pyramid. The act of homosexual contact, at a subconscious level, threatens the prevailing dominance of heterosexual sexuality. McDonald argues:
By its very nature, a homosexual advance is accepted to be an attack upon the sanctified and impenetrable male body. Therefore there is no such thing as a homosexual advance.
In the case of R v Edwards, this conceptual attack on the impenetrable male body was taken quite literally, resulting in a violent murder.
Provocation's links to masculine violence do not only affect gay men. Violence against women, domestic abuse, marital abuse and perceived sexual infidelity all come under the ambit of the defence. The opposite is not true. Women in subjugated, battered relationships who murder their husbands cannot successfully make out the defence. The element of pre-mediation often found in battered woman cases (which is a direct result of the environment they often exist in) negates the requirement that the offender lose the 'ordinary power of self control'.
As long as such attitudes still exist, homosexual panic will still be argued in murder cases. However the tension around provocation raises issues deeper than the mere availability of the defence to criminal law barristers.
EPSOM VERSUS EKETEHUNA
Provocation is a hard defence to prove. It requires that the offender, having the power of self control that the ordinary person possesses, but with the characteristics of the particular offender, loses the ordinary power of self control. What a mess of legalese. Who is the ordinary person? What is the ordinary power of self-control? What are the characteristics of the offender?
Such questions are contextual, and are gradually developed upon in case law. There are no parliamentary guidelines to work with. This creates a serious problem. The aim of the criminal law is to provide consistent, equal justice across the country that reflects the prevailing social attitudes of the whole nation. But the ordinary bloke or lass in Eketehuna has a different set of societal considerations than the socialite in Epsom. Let's face reality. It's harder being out in Gore than it would be in Karangahape Road.
New Zealand's jury system strives for plurality. This is to ensure that when determining an offender's guilt a broad range of viewpoints are considered. The argument goes, the better the plurality, the more just the decision. Jurors are screened for race, age, socio-economic class, and profession – but not sexual orientation, resulting in gay victims not receiving the same standards of justice that straight victims are. In fact, due to the hetero-normative attitudes that still permeate most juries, homosexuals may be subconsciously discriminated against in provocation cases. Again, this is a bold claim to make. But its undeniable that homophobia still has an insidious effect in New Zealand. Some wish to merely turn a blind eye, quietly telling themselves it someone else's problem. Others still have to work hard to bring themselves to talk to airline stewards. It's not unthinkable that in cases as murky and as obfuscated as R v Edwards heterosexual jurors may intentionally or unintentionally ignore issues of fact. And its not just juries that are affected, Justice Ingram uttered this homophobic comment while sentencing an offender in July this year. "Two or three of these [convictions] and you will be Waikeria [prison] bound. Just think about lining up in the shower with all the boys, your bar of soap in your hand."
THE POWER OF HATE
But there's more to this tragedy of justice than poorly composed juries. The continued existence of provocation as a defence for gay panic prevents the New Zealand judiciary from treating gay panic for what it really is - an excuse for hate crime. In R v Ali to denigrate and oppress homosexual individuals and communities, and more importantly, to attack the very existence of homosexuality as a legitimate sexual identity. Latent or blatant homophobia instils fear into a minority group, it reinforces the perception that where gay men are the victims of violent assaults or murder it was because they were gay. And somehow that's acceptable. This is an absolute tragedy. The power of hate can ruin lives, and destroy hopes and dreams. Nowhere was this more evident than in a letter that was sent to the Evening Post in 2002.
A schoolmate I've known for 44 years has only just recently confided to me that he is gay: the homophobic hate-murder of Charles Aberhart in Hagley Park in 1964 has kept him in the closet from that day to this – as it was intended to do. Hate Crimes have many victims other than the people physically hurt by them – whole communities. That is why they deserve special attention.
Provocation lies as an unmovable legal barrier to social progress. Its very existence hampers lawyers and the courts from giving special attention to homophobia. Young's letter really drives home what's at stake here. It describes a tale of unimaginable oppression that homosexuals of our generation will never truly know. But the stagnant remnants of the past still linger. By allowing a legal blanket to envelop the heinous acts of hate filled individuals, social progress will never be realised. Thankfully the law does recognise homophobia as an aggravating factor. Section 9(1)(h) of the Sentencing Act 2002 allows judges to increase sentences where hostility towards a sexual orientation was apparent. But that's not enough. Allowing homophobia as a defence as well as an aggravation solves nothing. Its only balances a discrimination which still exists on the books.
THE HOPE FOR THE FUTURE
So far this article has been quite depressing. But there is hope. In 2007 the Law Commission released a report calling for Section 169 of the Crimes Act to be unconditionally repealed. Former Salient Editor, former Prime Minister and current Law Commission president Sir Geoffrey Palmer voiced his support for the change. He was joined by Labour MP Charles Chauvel, and the GayNZ lobby group. It's important to remember that a law change will not just benefit gay men. Although this article has been focused on provocation in regards to male homosexuality, the removal of the defence will allow greater legal freedom to all genders and sexual orientations. Unfortunately progress is slow, and a bill has not yet been introduced to Parliament.
But one thing is certain. With or without Parliament legislating against provocation, the defence is currently sustaining heavy academic and legal criticism. Its confusing application and legal requirements, its promulgation of hetero-normative attitudes, and its inherent homophobia, indicate strongly a need for change. It's about time the memories of Robert Hunt, Charles Aberhart, David McNee, Stephen Byrne, Ronald Anderson, Barry Hart, and John Sorrenson received the justice they deserved both as homosexuals, but more importantly, as human beings.
Special thanks to Professor Elisabeth McDonald, and her paper No Straight Answer: Homophobia as both an aggravating and mitigating factor in New Zealand homocide cases. From which most of this article was based. And the title was blatantly stolen.
References R v Ali