Justice, but…

Like most New Zealanders, probably, I was delighted to hear that Clayton Weatherston was found guilty of murdering his ex-girlfriend Sophie Elliott. He claimed that she provoked him, and that he was only guilty of the lesser charge of manslaughter. Provoked?! He stabbed and cut her 216 times—what kind of “provocation” could possibly justify that murderous frenzy? The jury found there was no justification and correctly found him guilty of murder.

However, this same defence was used recently in another high-profile case with a very different outcome. The NZ Herald summed up the events:

Ferdinand Ambach, a Hungarian tourist, was drinking with Ronald James Brown, on December 7, 2007, at a suburban Auckland bar before they went to Mr Brown's Onehunga flat. A violent argument erupted and Mr Brown, 69, was bashed repeatedly with a banjo before the neck of the instrument was rammed down his throat.

Ambach claimed that Brown “provoked” him by making “two unwanted sexual advances”. Judge Helen Winkelmann gave the jury much the same basic instructions that the Weatherston jury got, but the judge added, "Mr Brown was a homosexual but he kept his sexuality separate from his friends and family. That doesn't make it blameworthy.” Yet she then went on to suggest it was, adding that “the jury had to consider… whether [Ambach] was provoked by sexual advances from Mr Brown. They were also told to consider whether these advances caused Ambach to lose the power of self control,” according to the Herald.

In New Zealand, as in many countries, there’s a right of self-defence, but that’s limited to reasonable force in proportion to the threat. In no way whatsoever is a “sexual advance” a provocation sufficient enough to justify killing someone. What Ambach used is the famous “gay panic” defence in which a supposedly heterosexual male claims that an “unwanted” sexual advance from another man justifies murder. The jury found that “unwanted sexual advance” apparently is reason enough to kill someone, if the person making the advance is a gay man, since they found Ambach guilty only of the lesser crime of manslaughter.

Weatherston used the same “provocation” defence, in his case claiming, basically, that his victim goaded him into murdering her. He didn’t get away with it.

Both murderers were making mere excuses for their crimes, and the existence of the defence is an insult to every concept of justice.

Fortunately, there is hope for the future: Gay Labour MP and former lawyer Charles Chauvel is spearheading a drive to repeal the “partial provocation defence”. If it passes Parliament—and it must—murderers like Clayton Weatherston and Ferdinand Ambach will never again be able to use “provocation” as an excuse for murdering someone. The Government claims to be a promoter of law and order and justice, and this is a chance for them to prove it by backing this bill.

Update 23 July: Justice Minister Simon Power has announced that the "partial defence of provocation" will be "the subject of reform," something the media has interpreted as a pledge to scrap the defence. Power said that it "effectively rewards a lack of self-control". He gave no details on how or when this reform would happen.