Tuesday, 14 July 2009

What could acceptable provocation look like?

I'm posting this in an honest bid for some good comment discussion. I tend to think we should just get away with the defence of provocation altogether, particularly given the bizarre verdicts in two cases where the provocation has amounted to one man coming on to another man who then kills in response, and of course the seemingly unending horror that is the Clayton Weatherston trial.

I've been trying to come up with imaginary scenarios in my head which would be the kind of provocation I personally would be ok with downgrading murder to manslaughter. I haven't succeeded yet. So I'm throwing it open to you, dear readers.

Can you come up with anything you would consider sufficient provocation to render someone who killed someone else not culpable for their murder?

Answers in comments (or blog posts with a link in comments) please.

18 comments:

Hugh said...

I apologise if this example is triggering or seems like I'm trying to jab at hot-button issues gratuitously, but I believe that when a woman who has been repeatedly abused by her husband kills him, the provocation defense is often utilised.

Hugh said...

Note: I'm not talking about a case where she kills him while defending herself from his attacks; that's self defense. Instead I'm talking about cases where he is killed while an attack isn't happening.

I'm pretty sure there are some specific cases out there; hopefully somebody will be able to enlighten me as to what they are (and if they indeed match the facts as I recall them - possibly they don't)

Anonymous said...

Hugh - I was about to say the same thing. You're not being inflammatory - when the defence comes up for review, its use by battered women is often cited as a reason for keeping it. There are specific cases - R v Wang springs to mind - woman killed her husband while he was sleeping because he threatened to hurt her when he woke up. Also Epifania-Suluape (emotional abuse). I'm pretty sure that Rongonui was the most recent case in NZ. It heaped criticism on the illogical framework of the defence, and how hard it is to apply and understand.

Anita said...

Hugh,

I seem to remember the Law Commission cover exactly that issue and concluded that it wasn't a barrier to repealing the entire provocation defence.

You could have a look through the report here or I'll try to get to it tonight and summarize.

Anonymous said...

I think that some sort of provocation acknowledgement should be allowed in the case where one person is the victim of ongoing abuse/torture and kills their abuser. The abuser is not killed in self-defense. Battered wife kills husband is the obvious example here.

Another option is where someone kills someone who is abusing/torturing a third party. Father kills paedophille who tortured daughter could be an example.

On the other hand, I think that these should be "factors to be considered at sentencing" rather than defenses for murder. That is, it is still murder but "provocation" is something that should be able to be presented to the judge as an argument for a reduced sentence.

Paul said...

If you defended yourself against physical attack but your defence was disproportionate to the attack, you might use the defence of provocation: a man begins hitting you with his hands; in fear and rage, you stab him with the kitchen knife you happened to be using at the time, killing him. You could say that you were provoked into a disproportionate response.

It is probably a defence that has helped more women than it has hindered.

The gay panic use of the defence is another matter, because it seems to justify homophobia.

Hugh said...

Interesting read Anita!

I tend to agree that there are probably other ways to deal with people in these kinds of circumstances than utilising provocation.

However, I do think the battered woman case, as they call it, (never been a huge fan of that term myself for some reason), is probably the best defense of provocation. Not that this necessarily means it's good enough, but I think it's the scenario in which most people would be prepared to entertain a provocation defense as valid.

Craig Ranapia said...

I think that some sort of provocation acknowledgement should be allowed in the case where one person is the victim of ongoing abuse/torture and kills their abuser. The abuser is not killed in self-defense. Battered wife kills husband is the obvious example here.

Sorry, but that doesn't change my view that there's no such thing as "acceptable provocation". Hey, I'll the first to say that the number of women who stay in or enable abusive relationships breaks my heart, and turns my stomach. But IMHO that's not a justification for murder, but the harder work of changing a seriously fucked up culture so that all people (male or female, gay or straight) know they live in a culture where every case of abuse is taken seriously by the Police and the judiciary without exception. And we shouldn't give a pass to murder because we still have a way to go.

Craig Ranapia said...

And one other thing: I don't want to perpetuate the idea -- in law or anywhere else -- that being a woman makes you more irrational/hysterical/unable to control yourself than men. The law of unintended consequences is worth considering; and especially whether women are really 'helped' by patriarchal ideology and gender stereotypes, however useful they may be,

David said...

Some ramdom & sleep deprived thoughts about this issue - If we are going to be black & white about this then provocation is not an acceptable defence to murder. IMO Provocation is a hangover of the days when gentlemen fought duels over issues of honour. The defence of provocation appears to be used by defendants who easily get angry and/or offended and have a low threashold for using violence. A change to the provocation defence I would like to see is an assesment of the defendants personality. It should be up the the defendant to prove that that they were not normally a violent person, but due to the nature of the provocation they reacted, or over reacted! If the defendant has prior violence convictions they then have a much higher hurdle to get over to use provocation as a defence. However provocation should be a factor in sentencing which also takes into account prior convictions as well as psychological assesments.

I would also expect that anyone using provocation as a defence to murder to be extreamly remorsefull, Clayton Weatherston however appears to be pissed off that he is being held to account.

Anita said...

Provocation and victims of domestic violence

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 been 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

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.

Anita said...

Provocation and victims of domestic violence

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 been 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

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.

Anita said...

(apologies for duplication, feel free to delete one copy)

((and this))

Anita said...

Anonymous @3:04pm

Another option is where someone kills someone who is abusing/torturing a third party. Father kills paedophille who tortured daughter could be an example.

You are arguing that vigilante justice should be permitted, is that what you really mean?

Anonymous said...

Anita wrote:
You are arguing that vigilante justice should be permitted, is that what you really mean?

I think that general circumstances like that could be used as a provocation defense. This doesn't mean that it would be an automatically successful defense; it would depend on the precise circumstances.

Yes, I realise that this does blur the line between vigilante justice and provocation. Which is a problem. On the other hand, I would like to think that a jury could distinguish between vigilantism and provocation.

But as I said I would rather that provocation was a possible consideration at sentencing rather than conviction, anyway.

That is, I would rather that provocation was a part of the machinery to reduce a X year murder sentence to a Y year murder sentence, rather than part of the machinery to change an otherwise murder sentence to a manslaughter sentence.

Giarne said...

I read all the comments with interest, there are many cases of provocation. I never thought about the Weatherston case being similar to battered women syndrome which puts it all in a slightly different light. I don't think his arrogance is helping his case though.

On another note what has worried me lately about both the Weatherston and Bain case is there seems to be a lot of victim-bashing happening. Laniet's comments about incest were seen as a questionable because of her being a prostitute and allegedly a frequent liar - well she can't defend herself against those claims. Weatherston is claiming Sophie's promiscuity and emotional badgering led him to strike back. She cannot defend herself.

I may be drawing the bow too far but will we allow victim bashing to re-start in rape cases, etc.

I think Weatherston over-did it, if he stabbed her say 5 times and then seemed remorseful perhaps I'd be more willing to accept his version of provocation. His smugness, lack of remorse and number of times he stabbed her makes me unsympathetic. I wonder if he should have used insanity instead.

Boganette said...

I agree with what Giarne says about the Bain and Weatherston trials.

It seems like Sophie is on trial not Weatherston.

It gets worse every single day and I feel so awful for her poor family who have to go through this.

Weatherston can claim anything he wants about Sophie and she can't defend herself.

Anita said...

I emailed the Law Commission a few days ago, and just got a reply which is over here. They are not currently working on the issues of character attacks on dead people within court cases, and are not aware of anyone in the sector working on it either.

It sounds like an issue which would need to be raised with their Minister to be progressed.