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Homosexual Panic Defence and the Sentencing Act 2002

Fri 20 Apr 2007 In: Comment

Stanley Waipouri Will Clause 9 (1) (h) of the Sentencing Act 2002 provide a response to the homophobic defence counsel use of "homosexual panic defence?" I pondered that as I did research on hate crimes and their status in New Zealand after the recent tragic death of Stan Waipouri, and with the recent play that commemorated the tragically short life of Jeff Whittington. So, what is 'homosexual panic defence?" Straight men can have their prospective murder charges reduced to manslaughter, or erased altogether, as happened in the case of another Palmerston North man, Jim Curtis, a decade ago. In that case, Tai Tahu Marsters, his assailant got off scott free, despite Jim's coma and resultant brain damage, which endures to this day. What might happen in the forthcoming case of Stan Waipouri, and how does Clause 9 (1) (h) affect matters? In December 2005, Auckland University law lecturer John Ip reviewed the Sentencing Act's relevant provisions, three years after their passage. The section suggests that courts should take into account 'aggravating factors' that include 'hostility' based on factors such as 'race,' 'colour', nationality, religion, gender identity, sexual orientation and disability, and that hostility should be seen to be derived from enduring common attributes or characteristics such as those listed. What is a hate crime? These consist of underlying crimes aggravated by prejudice or hate that acts as a motivation for antisocial acts that result in severe injury. Ip argues that Section 9(1) (h) may only have a limited effect because it only makes hateful motivation a potential aggravating factor. Indeed, however, even before Section 9 (1)(h), some New Zealand courts took homophobic motivation into account [R versus Poki (2001) 18 Criminal Reports of New Zealand 599]. He argues that one fault of the legislation may be the lack of direction related to penalty enhancement and tougher sentencing, because the extent of hateful motivation in precipitating hate crime may be unclear. However, in itself, the codification of such law sends a clear message to the courts. Ip provides justification for hate crimes legislation, arguing that they punish aggravated cases of injury to others, rather than mere derogatory speech acts unlinked to such violent behaviour. It does not threaten free speech, as ACT's Owen Jennings and Stephen Franks, and National's Bill English, alleged in 2002. However, if there is evidence that past derogatory speech did escalate into past acts of aggravated injury, that is admissible as a sign of motivation within the context of hate crimes. How has this been treated? Ip notes that thus far, the courts have been slow to use Section 9 (1)9h) in the context of prior and consequent racist speech in cases of violence against Korean and Chinese students. However, in R v Johansen and R v Dixon, the assailants explicitly referred to the ethnicity of an Asian prison inmate and assault victim, and a Maori murder victim, and thus attracted tougher sentences because they were aggravated assaults motivated by racist attitudes. Hate crimes are also damaging because they intimidate communities, and may encourage retaliatory vigilante violence in some instances, against innocent third parties unconnected to the initial assault. (At the time Ip wrote, there were no recorded hate crimes that involved elderly people or people with physical, intellectual or psychiatric disabilities who could not retaliate. As someone with parents in their seventies himself, I sincerely hope that future cases of aggravated assault against elderly and/or disabled persons are classified as hate crimes, which they are, and receive properly punitive sentences). The question is, are nonverbal signs of motivation enough to qualify as a sign that a hate crime has been committed? After all, Stan's body was specifically mutilated at the genital area, which may be a strong indicator of homophobic violence. Only time will tell, at Arnupp and Gilling's eventual trial. Strongly Recommended: I.J.Fenn: The Beat: A True Account of the Bondi Gay Murders: Rowville, New South Wales: Five Mile Press: 2006. John Ip: "Debating New Zealand's Hate Crime Legislation: Theory and Practice" New Zealand Universities Law Review 21: 4 (December 2005): 575-597. Craig Young - 20th April 2007    

Credit: Craig Young

First published: Friday, 20th April 2007 - 12:00pm

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