Provocation: A Dispassionate Look

Will the law change enable gays and women to be any safer in future ?

By Brannavan Gnanalingham

The recent murder trials of Ferdinand Ambach and Clayton Weatherston have thrown the use of the partial defence of provocation back in the news. The outrage that followed Weatherston’s unsuccessful use of the defence led to Justice Minister Simon Power calling for the scrapping of the defence. While the move was criticised in some quarters as being a knee-jerk reaction following the highly charged Weatherston case, calls to scrap the defence had been frequent over the last decade. The Law Commission in both 2001 and 2007 argued for the removal of the defence, and Charles Chauvel introduced a private member’s bill this year to do the same.

Provocation is a partial defence under the Crimes Act. It doesn’t totally mitigate the killing of another individual, but the defence does allow the accused to downgrade the charge from murder to manslaughter. It is important to distinguish provocation from self-defence. Self-defence is a complete defence (i.e. you can be let off completely from a murder charge if your life was at risk), and allows someone who is physically threatened to respond in a proportionate manner. This meant that Weatherston, who claimed that Sophie Elliott attacked him with scissors first, would not have been able to argue that stabbing her in response 216 times was proportionate. Provocation instead, loosely speaking, is a sudden brain-snap where the accused loses self-control based on his or her circumstances.

The reason the defence is partial derives from when murder was punishable by death. A downgrade to manslaughter sought to mitigate the ultimate effect of a murder charge. Essentially the judge asks the jury to consider if something was done or said “in the circumstances of the case [which] was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control, and it did in fact deprive the offender of the power of self-control”. The jury is forced to consider both an objective test (e.g. an “ordinary person”) and a subjective test (“the characteristics of the offender”). The vagaries of this defence has led to contradictory results from juries.

Provocation assumes that the emotional state of the accused is a relevant consideration when it comes to assessing the culpability of the accused. The defence derives from the French crime of passion – where a man finding his wife having an affair with another has grounds for a partial excuse if he kills. From there, the defence developed to allow particular emotional grounds to be considered worthy of consideration. Associate Professor Elisabeth McDonald, lecturer in criminal law and evidence at Victoria University, says that “over time in New Zealand, and in most common law jurisdictions, that developed into any kind of threat to male sexuality or possession [being] argued, not always successfully. That’s sufficient for provocation. Leaving you for someone else, you’re no good in bed, that sort of thing.”

However the defence’s original rationale is based on notions of proprietorship. The legal status of a wife pre-20th century was that a husband owned his wife as property, so therefore he was entitled to react if his property cheats on him. Yet despite this outdated notion, the defence which sprung from this foundation still remained, with often controversial results. Charles Chauvel says “the defence has allowed defence counsel to paint the victims of crime as morally reprehensible and somehow deserving of their fates. It allows for a dehumanising of the victim.”

The defence applies to a sudden loss of self-control. Euthanasia (or mercy killings) or a reaction to spousal abuse has very rarely been held to be sufficient for provocation. The reasoning for this is that these two situations are seen as “slow-burning” responses to situations, and not a sudden reaction. People who kill their abusive partners struggle to use self-defence too – and this black hole has led to confusion just exactly where spouses who kill abusive partners fit in on the scale. On the rare occasion where provocation has been successfully argued in these situations, McDonald suggests “I think it was probably a situation where the jury felt some pity or empathy and that was another option open to them. Because you do require a sudden loss of self control, it doesn’t fit with a situation where someone is premeditated, or gets the wherewithal to commit murder.”

Provocation has mutated to have been applied – historically – predominantly when male sexuality has been threatened. Weatherston’s defence, for example, focused on Weatherston’s maligned sexuality – his victim Sophie Elliot’s sexual past, his fears about the size of his genitalia, the couple’s sex life – and this became the major plank in his defence. The infamous case of Dr. David Minnitt involved Minnitt being successful in running provocation because he killed his wife after she allegedly said he had a small penis, and that he was a bad lover. Defence lawyer Mike Bungay and Brian Edwards, writing in 1983 in the aftermath of the case wrote : “For many men, personal identity and self worth are inextricably bound up with concepts of masculinity and sexual prowess…[to] be branded a failure as a lover, to be unfavourably compared with another man…is the ultimate insult to the male ego, the ultimate provocation”.

However, most cases where provocation has been successfully run have involved the so-called “gay panic” defence. And it’s interesting that the public outrage over provocation came not from the successful invocation of the “gay panic defence” by Ferdinand Ambach (who hit his victim at least five times with a banjo and then forced it down his throat), but from the unsuccessful use by Weatherston. While Weatherston’s case was certainly more high profile, Ambach’s use of the defence spoke to wider issues in relation to how the defence could have been run.

For the gay panic defence to be accepted by a jury, provocation assumes that the “ordinary person” is homophobic in order to react in that way. McDonald says “if it’s enough to provoke a person with the ordinary power of self-control into a murderous rage, that assumes that most people think like that.” Chauvel says “in cases where ‘gay panic’ has been pleaded, there seems little doubt that what the Law Commission described in its report as ‘dress(ing) up bigotry against homosexuals as a sympathetic circumstance’ has worked well with some jury members.” The success of this defence is recent times, and the muted reaction to Ambach’s manslaughter verdict suggests that juries (and even the public) have accepted that an ordinary person is homophobic. If women were able to use the same defence – he was hitting on me – McDonald laughs “there’d be a lot of dead men around.”

Moreover, McDonald says this acceptance of homophobia leads to a tension within the Sentencing Act 2002. The Sentencing Act itself prescribes longer sentences for killings that are deemed “hate crimes”, such as the killing of homosexuals. So on the one hand, there’s a defence which allows killers to have a sentence downgraded because an ordinary person is homophobic, and there’s also a law which states homophobia ought to result in a more serious sentence for murder.

While there was outrage over the way Sophie Elliott’s reputation was sullied in the Weatherston trial, there is an interesting parallel to sexual complaints. In effect, provocation has again been successfully used to justify particular male sexual behaviour. In rape trials, McDonald says notions of provocation have arisen particularly “in the context of rape trials, especially when the core issue is whether he (the accused) believed she (the complainant) was consenting. On this basis, even evidence of her sexual relationships with other men has been admitted – that is, ‘I thought she was consenting to sex with me because I had heard that she liked sex with lots of men.’”

The recent case of Bourke involved highlighting the complainant’s sexual past and her history of being “easy” in order to show that she “consented” when a stranger entered her room at 4.30am, and she mistakenly believed him to be someone else. The Louise Nicholas trials also heavily focused on the complainant’s sexual past. While the obvious difference is that provocation for murder involves a victim who cannot testify to clear his or her name, this allowance for the concept of provocation in sexual crimes suggests juries are willing to buy into ideas that women’s sexuality contributes to their victimisation. While the jury did not accept Elliott’s sexual background as relevant, the jury in Bourke acquitted the defendant after a very short period of deliberation.

Given that the law assumes that an accused is a rational being (unless, insanity is pleaded) the concept that provocation can justify either rape or murder does seem outdated. McDonald suggests that the only compelling reason to keep the defence in terms of murder is the difference in connotations of being convicted of murder and of being convicted of manslaughter.

However, Chauvel says : “When the death penalty was the mandatory sentence for murder, I can see how it was somewhat more understandable that there should have been avenues to reduce a murder charge to a manslaughter conviction so as to allow the ultimate penalty to be avoided. But we finally abolished the death penalty for murder in 1961. We should have done away with provocation at the same time.”

Furthermore, the Sentencing Act 2002 removed mandatory life sentences for murder – allowing mercy killings for example, to attract much shorter sentences. Chauvel says : “There is already ample scope for a judge to exercise sentencing discretion, including the imposition of minimum non-parole periods; and for the parole board to decide whether a killer presents an ongoing risk of re-offending.”

Indeed, given that provocation is predominantly accepted by juries in cases in which male sexuality is threatened, or under question – it’s perhaps not a knee-jerk reaction by Simon Power to remove a defence which still falls back on its outdated ‘crime of passion’ origins.