Raeburn on provocation

Jenna Raeburn blogs:

It utterly irritates me that the provocation debate has been almost entirely subsumed by the Weatherston case. There are three massive problems with this.

The Weatherston case has been the catalyst for change, but for my own part I have been supportive of a law change for some years since the McNee case.

Everyone has forgotten about the better, more philosophical justifications for removing the defence. In my mind the biggest issue is the assumption that, given a high enough degree of provocation, any ordinary person might resort to homicidal violence. This is a fundamentally flawed conception of human nature and is no basis for distinguishing levels of culpability.

Bravo. And then she addresses those who argue just for a change:

The second major issue is that the defence is inherently discriminatory. It does not provide protection to those who are not considered to have an “ordinary” level of self-control. Worse, it provides homophobes, misogynists, racists and other bigots with an excuse to murder the subjects of their hatred. This is exacerbated by the fact that the legal tests are such a complicated mix of objective and subjective factors that juries never understand it. None of this can be fixed simply by “changing” the defence – these are inherent issues, so it has to be scrapped entirely.

And then the cases before Weatherston:

We have also forgotten about the other many victims who have been defamed by murderers pleading provocation, and the many cases where the defence has absurdly been successful. Why didn’t the Ambach case cause the same outrage as Weatherston? It was barely reported, and yet it is twenty times as outrageous because Ambach was actually successful. The McNee case was very similar, and is also largely forgotten despite having more publicity.

Those interested in more info on these other cases could read a good article at Salient by Conrad Reyners on this.

I think the McNee case was outraegous. Even if his killer Edwards was heterosexual, that would be no reason for him to kill McNee, but Edwards frequently slept with men for sex – in fact he tried to blackmail several of them. This violent thug just conned the jury and got manslaughter instead of murder. The problem with the provocation partial defence is it encourages people to try and defame their victim.

People are calling the abolition of provocation a knee-jerk reaction to the Weatherston case. I cannot believe the sheer numbers of people I have noted expressing this belief over the last couple of days as this has all made the news again. This is the one and only thing that inspired me to write a post about what essentially ought to be a non-issue. It ought to have been so since Rongonui at least. A change has been on the cards for years, especially since the Law Commission report in 2007. Anyone who believes this is all about Clayton Weatherston should read it.

I think the Weatherston case has been a catalyst for MPs. It has meant the law change has happened quicker than otherwise would have been the case. But again I agree that the need to change the law has been apparent for many years.