Monday, 27 July 2009

A partial defence of provocation

A lot of the recent railing against the use of provocation as a defence for murder has, missed the point, I think. People have focused on the use of the defence itself, rather on the contrary verdicts it returns.

There might be a legitimate place for a defence of provocation. Or there might not be. I haven't made up my mind in that one. This is, you might say, a partial defense of provocation.

But what has disgusted me about about recent court cases where the defence has been used is not the defence itself (1). What is apalling is that it was accepted by the juries in the case where the victim happened to be a homosexual - Ronald Brown, an elderly, physically unimposing homosexual, savagely killed by Ferdinand Ambach, a far younger, stronger man, who went on to claim that he was so frenzied by the alleged unwelcome advances of his victim, that he was driven into a berserk frenzy. And that this was okay, and understandable. And the jury agreed with him.

What is disgusting is not that Clayton Weatherston tried to use the defence of provokation, or even that Ferdinand Ambach tried it. What is disgusting is the bigotted, gay hating nature of New Zealand that the Ambach verdict exposed.

The repugnance at Weatherstone's attempt to use the defense is a red herring - a bit of self deluding smoke and mirrors. What was really apalling was that Ambach suceeded - for, as far as I can tell, no other reason than his victim was homosexual. And, it would seem, that's wrong in the eyes of a large portion of the New Zealand public - a big enough portion to return that abhorrent verdict.

It is worth noting that the degree of repugnance was much higher when Weatherston used it, compared to Ambach's attempt. Obviously, violently slaying an attractive young woman is deemed much worse, much more horrible, than savagely slaughtering an old man. Though, again, I suspect if his sexuality hadn't been at the centre of the case, the outrage would have been much greater. Another indictment of New Zealand's passive disgust at homosexuality.

Our disgust should be directed inwards, not towards some flimsy legal finangling, but into the hearts and minds of the people who make up the jury. The people who thought that it was somehow understandable and acceptable to bludgeon a man to death simply because he made unwanted sexual advances. But, because self-analysis - like tolerating homosexuality - isn't something that New Zealanders are very well known for, we prefer to make a fuss about the defence used.

It was the wrong verdict, not because of the defence, but because of the underlying bigotry of the jurors.
1 - As described previously on lefthandpalm:

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