On the provocation defence: politicans are not lawyers, and it shows

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A parliamentary committee has recommended that the partial defence of provocation be abolished. I explained in an earlier blog why that’s a bad idea.

However, the responses that the members of parliament have given to the very sensible concerns over the abolition of this partial defence confirm my worst fears about the whole process: They really don’t understand the laws they are trying to have changed. It’s the anti-smacking law all over again.

One concern raised was that the abolition of the provocation defence is an affront to women who have been subjected to years of abuse at the hands of their partners.  The glib reply of the parliamentary committee to this concern is shocking in its level of both expressed ignorance and injustice: “It would be more appropriate for them to rely on self-defence, which could result in an acquittal rather than a manslaughter conviction.”

Self defence? No. They really ought to have spoken to a few lawyers or judges in this process. The actions of a battered spouse who lashes out do not meet the legal criteria of self defence by virtue of the fact that the spouse is a battered one. No woman in a New Zealand court has been found not guilty by virtue of self defence on account of being a battered wife. It is also highly dubious as far as justice is concerned to assume that a woman who kills her husband and who is a battered spouse should be acquitted rather than receive a lesser conviction.

Not only would such a course of action not “be more appropriate,” but 1) It is very unlikely to ever succeed at all, and 2) it is highly questionable on ethical grounds.

What is more, the parliamentary committee has also (whether they intended to or not) granted that they are attempting to seek a change that makes little difference. The new report says:

The committee’s report said that the law change would still allow judges to consider provocation as a mitigating factor in sentencing.

This would mean in extreme cases someone found guilty of murder could get less than life imprisonment if the judge believed that sentence was “manifestly unjust”.

In other words, instead of a reduced conviction, showing that provocation was a factor would result in a reduced sentence. When the provocation defence was highlighted when it was falsely appealed to by convicted murder Clayton Weatherston, outspoken politicans and media personalities were all but frothing at the mouth at this terrible defence that people were using as an “excuse” for murder (setting aside the ignorance involved there – it was never an excuse in law). Now the reformulated version of this outrage is that provocation can serve as a mitigating factor in obtaining a lesser sentence. Somehow that doesn’t draw the howls of outrage.

It’s a meaningless exercise that has done little but change labels around. The partial defence of provocation should remain because it is fundamentally just. This is just another case where politicians are taking away the clarity of the law and loading the scales more in favour of the “discretion” of the system.

Glenn Peoples

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