Saturday, November 28, 2009

An abhorrent law is gone

Thursday night, Parliament acted correctly and repealed the use of provocation as a partial defence for murder. The repeal was passed 116-5—only the Neo-Troglodyte ACT Party voted against it.

Predictably, lawyers were condescending in their dismissals, with one calling the repeal “political grandstanding” and another calling it a “knee-jerk reaction”. Of course lawyers opposed the repeal: They want whatever tools they can use. That doesn’t make them correct.

One lawyer said he believed that juries were capable of making informed decisions, which is absolute rubbish. The whole point of the partial defence of provocation is to trash the reputation of the murder victim so as to make the defendant seem justified in taking a life. Far too many times, defence lawyers played on the anti-gay prejudices of juries to get their client off a murder charge. There’s no justice for the murder victim in that.

The argument against repeal has been mainly around the idea that there are some cases in which someone may understandably lose control (for example, as one lawyer put it, finding someone in the act of molesting your child), But it seems to me that those rare occasions can be better dealt with in other ways, like arguing self-defence, rather than by allowing a murderer to trash his victim’s reputation or play upon the anti-gay prejudices of jurors.

The ACT Party, echoing the Law Society’s stand, argued that the defence shouldn’t be repealed until there was a replacement defence (such as diminished capacity). However, the party’s spokesperson, David Garrett, went beyond that and argued, “contrary to recent claims—victim's sexual orientation is irrelevant. It is not—and never has been—a 'gay panic' defence”. Garrett is either stupid, wilfully ignoring history or he’s being purely partisan—most likely, all three. Garrett has a reputation as a homophobe, so one suspects his position reflects his personal prejudices and not any principled stance. (This is actually the second time I’ve mentioned this moron by name, and the first time was just as scathing.)

Conservatives constantly argue that modern criminal law is weighted completely in favour of the defendant, not the victim. That’s nonsense, but in this one case, it definitely was. Now, it isn’t. That should be considered progress.

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