s169: enshrining a murderer’s right to blame the victim

datePosted on 19:55, July 6th, 2009 by Anita

Clayton Weatherston put a knife in his bag, went to his ex-girlfriend’s house and stabbed her to death. He admits to all of that but he is pleading not guilty to murder, and s169 of the Crimes Act means he may only be found guilty of manslaughter. s169 says that blaming her is a defence, it says that if she provoked him and he killed her it is not murder.

It sounds far fetched, but it’s happened many times before. In 2006 Tevita Noa was found not guilty of murder; he had beaten his wife to death with a cricket bat after finding explicit photos on her cell phone. Amsheen Arif Ali stabbed Colin Hart five times, only manslaughter because Hart had made sexual advances toward him. Phillip Edwards bashed David McNee in the face 40 times, stole his car and possessions and boasted about it afterwards, only manslaughter because McNee, paying Edwards for sex, had touched Edwards’ anus.

s169 enshrines blaming the victim in law – it says that in New Zealand a man may beat a woman or a gay man to death as long as it’s their fault, her fault for wanting to leave, his fault for being gay.

In 2007 the Law Commission recommended the repeal of the section and … nothing.

Earlier this year Simon Power’s office told me

I expect to consider these proposals later this year, and will assess, at that stage, how any reforms of this nature might fall within the Government’s current legislative priorities.

But … nothing.

So, if you want to live in a country which doesn’t enshrine victim blaming in law, write to Simon Power and ask him to repeal s169 of the Crimes Act, ask him to treat the murder of wives, gay men and ex-girlfriends as murder.

[Many thanks to Idiot/Savant who has kept this issue on the agenda]

17 Responses to “s169: enshrining a murderer’s right to blame the victim”

  1. mickysavage on July 7th, 2009 at 08:55

    I agree that section 169 appears bizarre but it was enacted to provide some respite from the automatic life sentence that a murder conviction attracts. The trouble with automatic minimum sentences is that they do not allow for differing levels of culpability. A murder of passion is entirely different to a cold blooded gang hit but the penalty is the same.

    Section 169 allows some flexibility and if the grounds are established then there is a discretion as to the sentence because the person would be convicted of manslaughter instead of murder. The maximum penalty is still the same but it is a maximum and not compulsory.

    I agree there should be review but at the same time the penalty for murder ought to also be reviewed.

  2. Idiot/savant on July 8th, 2009 at 00:32

    Many thanks to Idiot/Savant who has kept this issue on the agenda

    I’ve been deliberately avoiding posting about this one – and the banjo killing – as both cases were before the courts. And now I’m wondering if that’s the reason why Lianne Dalziel’s repeal bill hasn’t been in the ballot.

  3. Eddie Clark on July 8th, 2009 at 10:34

    As I/S said, the banjo killing is another disgusting example of the use of provocation. In some ways, it doesn’t matter if the jury ends up buying it – either way yet another homicide victim’s name, sexuality, ‘sluttishness’, etc have been dragged through the mud in public. And there is nothing that their family or friends can really do to restore their good name.

    Incidentally, the reporting on the banjo killing has been disgusting, too. Almost made me physically sick:

    http://www.stuff.co.nz/national/crime/2570872/Ambach-jury-retires

    The lead paragraph: “The jury deciding the fate of a Hungarian tourist accused of murdering an elderly Auckland homosexual man has retired to consider their verdict.”

    Replace the word “homosexual” with “black,” “asian,” “maori,” or “fat” and then think if that’d ever make it to print. Grrrrr.

  4. Lew on July 9th, 2009 at 21:11

    And would you look at that, he got off.

    The law, not for the first time, is an ass. If Weatherston gets manslaughter as well, I think we’ll see a fair head of steam build behind a repeal campaign. I hope, anyway.

    L

  5. mickysavage on July 10th, 2009 at 10:37

    Lew

    And would you look at that, he got off.

    Er um actually he was convicted of manslaughter and will likely be sentenced to years in prison. He could theoretically still be sentenced to life imprisonment.

    My previous comment concerning “automatic” sentences should be qualified. The Court does have the power under changes made in 2002 to sentence for a lesser period if “given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust”.

    It is unusual for the left to advocate for automatic sentences.

  6. Lew on July 10th, 2009 at 10:39

    micksavage,

    He got off murder. That’s what I mean; the provocation defence was accepted. That’s appalling, and the fact that he’ll spend years in prison doesn’t really mitigate too strongly against that.

    L

  7. marty mars on July 10th, 2009 at 11:16

    The list is getting longer and longer… just about every case they attack the dead victims. The victims are all auto-aphixiation fans or gay or young or women or defenceless. I cannot see how defence lawyers sleep at night – thats right – they are just doing their job – I have to say i can barely write about this i am so filled with rage and disgust.

  8. Anita on July 10th, 2009 at 11:19

    There is no protection for dead victims, even rape victims have only limited protection :-/

    I wonder if this is something the Law Commission have on their radar.

  9. Anita on July 10th, 2009 at 11:26

    To: NZ Law Commission
    Subject: Protection of the dead from attacks on their character during court cases

    Hi,

    Over recent months there have been a number of high profile cases where defence teams have incorporated serious attacks on the characters of dead people (usually dead victims) into their strategy. It appears that there is no process or structure in place to protect the character or memory of the dead from attack during court cases. This leads me to four questions:

    1) Is there any protection in New Zealand law for the character of dead people during court cases?

    2) Has the Law Commission ever done any work on this issue?

    3) Is the Law Commission intending to do any work on this issue?

    4) Is the Law Commission aware of any work which has been done, is on-going, or planned within the New Zealand justice system on this issue?

    Thanks!!

    Anita


    I’ll post the response when it arrives

  10. Graeme on July 10th, 2009 at 18:23

    I agree that section 169 appears bizarre but it was enacted to provide some respite from the automatic life sentence that a murder conviction attracts.

    I think you’ll find section 169 was aimed at ameliorating death sentences, not life sentences.

    On the broader issue, I agree with the sentiments, but would note that the sentiment of the title could probably be applied to section 48 as easily.

  11. Anita on July 10th, 2009 at 19:14

    Graeme,

    The s48 point seems to have been picked up over here.

  12. Anita on July 12th, 2009 at 12:42

    I/S,

    I think it probably depends on what one says in ones post :) I couldn’t say everything I wanted to say given the on-going case, but I think what I did say was pretty safe.

    It does raise the larger issue about new media tho, the courts are used to only needing to give guidance to the established media, so journos can feel pretty confident about the rules and how close to the line they are. The rest of us just have to guess.

  13. Idiot/Savant on July 12th, 2009 at 15:34

    I agree that the above post isn’t problematic. Unlike, say, those on Tumeke.

    DPF has suggested that bloggers need a plain English guide to sub judice so they can avoid violating it. I’m not sure that we do – simple common sense is enough: you can report on a trial, analyse legal arguments (oh, and advocate for a law change), provided you don’t impute guilt or introduce suppressed evidence. Given my general hatred of crime news, I have no problem meeting that standard. But those bloggers wanting to organize an online lynching should be in trouble.

  14. […] about battered women and provocation, in response to people suggesting we need to maintain the partial defence of provocation to protect battered women. I am reproducing it here as it shows that the provocation does not help […]

  15. Busy while someone is on trial | Big News on July 14th, 2009 at 21:13

    Busy while someone is on trial…

    As Anita says, s169 of the Crimes Act says that blaming a victim is a defence, it says that if the victim provoked the offender and he killed her it is not murder. The Law Commission has recommended the section be repealed from the Crimes Act, and used…

  16. Anita on July 15th, 2009 at 16:52

    Response just in from a very nice man at the Law Commission:

    Currently there is no law in New Zealand to protect the character of deceased persons, although the law relating to presentation of evidence in criminal trials does require that any information presented regarding the character of deceased persons (including victims) must be relevant to the case. The Law Commission was not given a reference from the Minister to work on this issue in the past, nor is it working on this area of law at present, and does not anticipate reference relating to this any time soon. That having been said, some past work of the Commission, such as the issue of provocation (Law Commission Report 98) and also to a lesser extent the presentation of hearsay evidence may briefly touch on matters relating to this – there is, I hasten to reiterate, nothing specific however. Similarly, we are not aware of any work currently being undertaken by other agencies around this topic. I hope this is of use to you and regret that we cannot answer your query any further at this time.

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