Clayton Weatherston has been found guilty of murdering Sophie Elliot, to nobody’s great surprise, perhaps, except his own.
First thought: good.
Second thought: should this be taken as evidence that the provocation defence doesn’t need to be abolished?
Another question: Should the people who failed to successfully use the defence of reasonable force as per s59 of the Crimes Act be taken as evidence that Parliament should never have changed s59?
Many of the concerns about Weatherston’s defenses have been based, not on the idea that it was somehow effective, but that by allowing him to accuse his victim of such unethical/immoral behaviour in a court setting, the law was effectively providing him with a forum in which to victimise her further.
The provocation defense has been a problem for a long time; many people and organisations (including the Law Commission) have been arguing for its repeal for a long time.This case may or may not add weight to the calls for repeal, but all the other appalling convictions for only manslaughter stand on their own.
To take only one case from the many cited here already, the fact a man can beat his partner to death and have it not called murder because she provoked him by going to the Police about a previous beating he gave her is enough.
and the banjo case and any one of a number of others
Third thought – why do we (and more importantly the relatives and friends) have to be subjected to the court proceedings on television and radio.
No because this only shows us New Zealand’s ugly homophobic side. If the victim is an older gay man, then killing him is (apparently) completely understandable, even if it is still illegal.
Lloyd, hear hear! I was wondering this too today, if it were a gay man he killed, manslaughter would have been returned.
This case = totally right decision
Why overturn the provocation defence? Surely, some people are provoked as a matter of fact. The fact that New Zealand is a homophobic country is not a reason to abolish the provocation defence, but for making New Zealand less homophobic.
One wonders how a female prostitute who gunned down an aggressive John would have been treated back in the days of illegal prostitution.
Sure, people are provoked – but that doesn’t mean it’s not murder.
Can you construct an example in which someone kills but that killing should be reduced from murder to manslaughter by the s169 provocation?
I second higher standards post.
Unless there is a reason for the public to be informed – notice that an arrest has been made, a court case has begun, a summary of the trial at the end of it and the jury verdict and later sentencing is about as far as national news should cover it (the rest is crime porn).
Since your views on s59 (that it should not have been repealed and the courts should decide on the merits of each defence) are well known, which of the following is true:
1. The same reasoning applies to s169, therefore provocation shouldn’t be repealed because the law is working as intended (and the Banjo Killer case, and all the others, are just unfortunate collateral damage in the name of justice).
2. The same reasoning doesn’t apply to s169 but you’re pretending it does in order to make a point.
You do devil’s advocate much better than I do.
Hugh, Lloyd, Michael, Anita, Steve,
I have to say I’m pleased and a little bit surprised that this case has provoked a stronger imperative toward repeal than the Banjo Killer case (which seems a much stronger argument against the provocation defence because it actually worked). I misunderestimated the Pretty Blonde effect, and the Loathsome Egomaniac effect as well.
I’ve been wondering throughout the trial about the defence, and as Weatherston’s behaviour became more and more egregious I became more convinced that he had decided the way he thought he’d come off best (least bad; he is an economist after all) was on the basis of prejudice. So he did as much as possible to provoke the family, the jurors, the media, the public of NZ and everyone else into doing something which would cause the case to be thrown out – attacking him, publishing prejudicial details or statements, or whatever.
Perhaps this ascribes too much reason, but I don’t see him as being irrational.
One other thing, because it has to be said: all the gloating about ‘bubba’ and not-at-all-veiled references to anal rape are just as unjustified in Weatherston’s case as they are in any other case. Much as it might be tempting to wish the worst for him, modern just societies do not subject their members – even their vilest members – to such punishments. That they do not is part of what defines a modern, just society.
The glib answer is that the media tell us because we want to know. Which we do, right or wrong. I think it’s fairly clear that if this were the only consideration the victim’s (or others’) rights to privacy would take precedence and there wouldn’t be any such coverage.
The more complex answer is that full-scale coverage such as with the Weatherston trial is how society reaffirms its faith (or otherwise) in the justice system, and monitors, debates and amends that system. This is precisely what’s happening – on the basis of this case and to a lesser extent other such cases, there has emerged a reasonable degree of bipartisan support for a repeal of the law which allowed this sorry farce to be played out. Without the wall-to-wall, graphic coverage of each gory cut and thrust, each smirk and moment of self-righteous puffery, it seems unlikely that people would have cared all too much about just another young woman being murdered by her partner. Inasmuch as it gives impetus to a law change preventing this sort of institutionalised, legitimised victim blaming in the future, I think the coverage could well be worth it.
The law, having shown itself to be so manifestly exploitative and unjust, has been useful after all.
I think the news focus on crime is pushing society to a fearfulness and divisiveness which undermines society cohesion and solidarity.
Not just fear for children, but a certain us and them aspect throughout society.
SPC, I agree. But I don’t think it’s courtroom reporting which is doing that.
The provocation defense need serious review. It saddens me that it was used in this case. But to know that being homosexual and making some slight advance (however unwise that may be) and that makes it manslaughter is in my opinion a tragedy.
I don’t think you can remove provocation entirely but it certainly requires major changes.
I arrive home to find someone having violently raped my wife after having tortured my children and crack him over the head a few times with a pitching wedge. He dies as a result of his injuries.
That seems to fit the statute. I should be convicted of a crime, and likely sentenced to something, but I would not be fairly classed a murderer.
The problem is not with the provocation defence itself, but with its application by homophobes. Removing the defence entirely would deprive all persons accused of relevant crimes of a reasonable avenue of defending themselves.
People who complain about the provocation defence need to get hard and accept that it is the job of defence counsel to use available legal means to defend their clients. This may occasionally produce defences that are in terribly bad taste, and frankly offensive in nature, but it’s ultimately the court’s job to decide what is and what is not a good or bad defence. Sometimes the court will do a lousy job of this, but that’s an argument for better courts, not repealing s169.
Have you ever thought that in some cases “victims” are to blame? Just because someone appears to be the victim of a crime does not make it so. In fact, Ms Elliot was not legally speaking the victim of a crime until Mr Weatherston was convicted (rightly IMHO) of her murder. If we are going to choose who can and who cannot blame the “victim”, then we open ourselves up to miscarriages of justice in cases (unlike this one) where the victim is actually at fault. That’s putting the cart before the horse.
If there are going to be cases where a dead person’s character is going to be besmirched in court, then I think it is better that the court be closed for such testimony, or at least that a media ban be imposed until after the verdict. The public doesn’t need to hear this stuff, and the victim’s family and friends suffer needlessly from having this stuff paraded in public and idiots on talkback mouthing off about it.
In your example, you come hometo find a torturer and rapist in the midst of torturing and raping… your actions to stop the rape and torture and to protect yourself are protected by s48 self defence, no need for sl69 provocation.
Yes lawyers should use whatever grounds we make available to them, we get to decide what grounds to give them.
Finally, read the Law commission’s reports or any of the other people and organizations who have been arguing against provocation as a defense for years. the main argument is justice and fairness, not victim blaming.
Ag, supposing the s48 defence didn’t apply, (say, the attacker was fleeing the scene) I still disagree.
If you intended to kill, or took actions which would probably result in death without caring whether it did, then you’re by definition a murderer. That there was some mitigating factor or other is a matter to be taken into consideration at sentencing. There remains an obligation on you to stop short of killing except in order to prevent or halt an attack. The effect would likely be the same (manslaughter) if you stopped hitting when he went down, even if death was the eventual result.
I’m a very staunch proponent of the right to self defence, up to and including lethal force in order to prevent or halt an attack. But only for those reasons. Nothing else justifies killing another human being.
I’m not arguing that there should never be cases in which a victim’s conduct is brought into proceedings, only that this sort of institutionalised, legitimised victim-blaming (my original words) should be prevented. I think the courts and the public do have a right to determine when victims’ actions are blameworthy. The fundamental point is that provocation in the case of murder is not such a situation.
Perhaps you’d consider familiarising yourself with the case. He plead guilty very early on to manslaughter, an offence for which he would have been convicted immediately and without any fuss if the crown hadn’t pressed for murder. This wasn’t disputed by anyone. If that didn’t make her a victim in your book, I’m not sure what would.
Again, I disagree. Bad laws don’t get changed unless people can see the full extent of how bad they are. Had Weatherston’s defence testimony been given in a closed court the Minister of Justice would not be calling for the provocation defence to be abolished. The system is working as intended.
Or familiarising yourself with the Victims’ Rights Act – which makes abundantly clear that someone can be a victim absent the conviction of anyone.
Stephen Franks comes up with an example: http://www.stephenfranks.co.nz/?p=2178. For some reason, I feel odd about repeating it. But it seems to me that manslaughter would be appropriate.
I want the provocation law repealled but not because the victim was cast in a bad light. It is so disproportionately used, that is by one section of society, that it clearly relates to values of a by-gone error (spelling mistake intended)
The broader question remains that if Weatherston had killed Sam, rather than Sophie, for suggesting they have sex and advancing on him, he would have been found guilty of manslaughter.
This case came to the “right” conclusion but we cannot retain this defence because this year alone, the Weatherston case must be regarded as an anomoly in this regard.
NZ still has some way to go on what it considers to be legitimate loss of control.
Women do not kill every time they consider themselves wronged in matters of the heart, perhaps that is what we really need to confront. Why we accept lack of control from some men when we expect total control from all women.
My suspicion is this defence is a hangover to days when women were property and upper class has rights and no one else.
tracey – the defence is a hangover from the days when we had the death penalty for murder. We didn’t want to kill people unless they really really deserved to die for what they’d done.
Wasn’t my case. He’d stopped.
That’s a somewhat sophistical argument, since you are simply defining the term “murder” to suit yourself. I could respond that in New Zealand law “murder” does not mean that, since one can be guilty of manslaughter if one was found to have been provoked.
Certainly, but being convicted of murder carries a much larger social stigma than being convicted of manslaughter, which suggests that consideration ought to be taken earlier in the legal process.
I don’t see how this is relevant. In cases of provocation it is pointless to talk about obligation, since the definition of provocation is the loss of self control. People do lose self control for predictable reasons over which they have no control (i.e. not cases like drinking themselves into a stupor), there is no point denying that fundamental fact. There is a morally relevant difference between someone who is not in control of their actions because of extreme temper and someone who is not, as long as the person who is was caused to lose their rag by some cause that they are not responsible for (like in my example).
It’s a good job that the provocation defence doesn’t automatically justify the killing of a human being then. Successfully mounting the defence gets you convicted of a crime.
What you apparently want is a justice system for gods and not human beings. Ordinary decent people can lose their self control through no fault of their own. Their actions still attract punishment, but it would be wrong to call them murderers, because they were not in control of their actions. As you said, murder is intentional. That means forming a rational intent to kill. Provoked people do not do that, because they have lost self control. There’s a morally relevant difference there.
Why? Why, as a matter of fact, can’t the victim’s conduct be such as to to provoke the killer?
That doesn’t really affect my point, which was that deciding the moral status of the “victim” before trial is putting the cart before the horse. Let’s take my case above. Your original point would make the rapist/torturer the victim and now I wouldn’t be able to defend myself by pointing out his responsibility for my lack of self control.
You’re assuming this is a bad law, but you have provided no real case to support your contention (at least I can’t see one). The existence of actual instances of provocation is not something you get to decide on, they are a fact. People do lose self control, and sometimes they lose it in ways in which it makes no sense to hold them culpable for the loss.
So why doesn’t the lack of self control constitute a morally relevant difference in cases of provocation? It obviously would if someone had slipped me a drug which made me lose self control and go berserk. What’s the difference between that and some case like the torturer where someone else causes me to lose self control?
How would you account for the following case, Lew?
This actually happened. I have a friend of some 20 years who cannot be described as violent in any way. He’s never been belligerent and during the time I’ve known him, he’s never been involved in a fight and he’s always been somewhat of a voice of reason.
A long time ago he got engaged. Unfortunately, the woman turned out not to be a very nice person. More unfortunately, some of his work colleagues were not nice people either, and didn’t like him. So along with his fiance they engineered a scheme to get at him. Some of them took him out for a drink after work, and then dropped him off home so that he would walk in on his fiance and another workmate having sex. This wasn’t an accident. The whole thing was staged to bum him out, and get him to quit his job.
Predictably, realizing this, he beat the living crap out of both of them, and ended up being done for assault (which he accepts was right). If he had been unlucky, he could have hit one of them the wrong way and they might have died. Would this not have then been an example of provocation?
I’ll try to respond to your major comment after I get home, but as to your example: the assault was provoked (although it provides no defence for assault) but if one of them had died it wouldn’t have been murder, provocation defence or not. It’s right here in your narrative:
It seems to me like it would have been a charge of manslaughter due to the lack of intent. There’s a current case of this sort before the courts – a punch which turned out to be fatal but wasn’t intended to be so.
And, incidentally, that’s a horrible story, and the sort of case where I’d expect a sentencing judge to go fairly easy.
It is like s59 in that, defence x is repealed,
but that does not mean that, in cases where x would have applied, there is now always no other defence.
Plus juries can be quite un-convict-ey in cases of fluffily generic diminished responsibility.
Well, here’s s167.
I think the case you mentioned is different, because it would be very difficult to suppose an intent to kill.
I haven’t asked my friend about his intent (he doesn’t like to talk about it), but he did whup them pretty bad, and it would not be unusual to see someone charged with murder under s167 (b) if the police thought that they were acting under an intention to kill or to commit reckless violence that would endanger life.
I don’t know how I would react in such a situation, but I can imagine how someone would be so consumed with rage that they would at least in some respects want to kill or beat someone not caring if they lived or died.
That’s the sort of case I think the provocation defence is supposed to be about. It doesn’t mean that someone would get a lesser sentence. I can certainly imagine cases like this (including the banjo case) where someone who was provoked would still warrant a life sentence.
I think what is at issue here is not the severity of sentences, but that our criminal legislation accurately describe the crimes that people commit. Being found guilty of murder is to be guilty of a different kind of crime than being found guilty of manslaughter, even though the sentences might end up the same.
One way of perhaps rectifying the problems with the law would be to exclude certain kinds of provocation. The problem does not seem to me to be with provocation, but with the fact that juries seem to think that things like a homosexual pass should count as reasonable provocation. Some sort of hate criterion ought to be inserted into the legislation. I’m mulling over how this could be done.
The whole thing is bound up in moral norms. It’s what ‘we’ consider to be ‘murder’, and where the common and official definitions differ, changing the official definition to match the common. It’s not a big change; really only symbolic, as has been noted in the discussion of sentencing.
Yes, it carries a much larger social stigma because of the matter of intent. If you intentionally kill someone, should you not be stigmatised in the worst possible way? Even if you did so in a fit of anger?
This is why it needs to happen – because (it is commonly held) that the value as a symbol of what society tolerates or excuses – even partially tolerates or excuses – is greater than the value of giving people an ‘out’ clause of sorts which excuses them from killing and tacitly says ‘well, that’s all right, then’; or perhaps ‘that’s a little bit alright’. Well, no, I don’t accept that.
Well, this begs the question as to ‘responsibility for self-control’. While I accept that such situations can make people do crazy things, my point is pretty clearly that I don’t think that constitutes a justification – even a partial justification – for killing someone.
In addition, I quite explicitly said “I think the courts and the public do have a right to determine when victimsâ€™ actions are blameworthy”. I am advocating for provocation to make a difference of degree, not a difference of kind, as it is presently. Again: not a big change.
No, I’m arguing there’s a bad principle behind it.
I don’t accept this. That’s the core of our disagreement. Killing another person intentionally is different.
Yes, that’s right. And the point of repealing provocation defence is to draw a line which says: ‘it’s not ok to intentionally kill someone, no matter how provoked you were, and we as a society will not excuse it by calling it manslaughter rather than murder’.
Well, the common definition cannot simply be accepted. It has to pass a test of coherence. A definition that fails to capture morally relevant differences between actions is of no use, no matter how much the public would prefer to believe in it.
The term “anger” here is equivocal. If a gang member shoots another gang member, they are usually angry, but it is not the kind of anger that is at stake in a case of provocation.
Nobody is arguing that it constitutes a justification. Manslaughter is culpable homicide, punishable by up to life imprisonment.
You are treating people as if they are gods who cannot have their agency overridden by their emotions. In most cases we do have such control, in a practical sense, but there are all sorts of cases familiar even to non-criminals in which this is not the case. For example, upon the death of a loved one people often find themselves assailed by grief and incapable of normal standards of action. Most of us have experienced this, even if only when having to deal with someone else’s grief. The states of mind that the provocation defence is intended to deal with are equivalent to this.
Can you explain why it is normal and reasonable to accept the subversion of normal standards of behaviour in cases of extreme grief, but not in cases of extreme anger? Every human being I have ever met has a breaking point, beyond which they become a helpless slave of their own emotions.
But it is a difference in kind, and the difference is evidenced in our ordinary social standards. We commonly accept that intense emotional stress can rob people of their powers of agency. As I said, we accept this in the case of extreme grief, and we also accept it in cases of extreme fear. It seems woefully inconsistent not to accept it in cases of extreme anger.
There’s another equivocation here. There are different types of intention. Normally, our intentions are part of a large web of beliefs, desires and aversions which more or less constitute our personalities. It is when this as a whole, or at least a significant part of it, is operative in determining our actions by the forming of an intention to do X that we are held to be in a normal condition of responsibility.
This is also how we interpret the actions of others. If someone we know does something out of character, we immediately start trying to explain the deviant behaviour by trying to work out how to explain it in terms of what we know about their pre-existing beliefs and desires (usually the deviant behaviour is explained in terms of some fact we are unaware of).
Intense and traumatic emotions tend to subvert the connection between one’s web of beliefs and desires and the final intention to do X. For example, you may know a very calm and self controlled person who becomes a blubbering wreck upon the death of his child. Of course he intends to cry, but his intention has ceased to have a connection with the rest of his beliefs and desires that commonly censor or direct his behaviour. The difference in behaviour is not explained by igorance of the facts, nor by a massive change in personality, but simply that his normal rational decision making faculty is not currently connected in any meaningful way with his actions. He lacks self control.
So it is perfectly acceptable to say that a person under provocation kills another person intentionally (forms a desire to kill or recklessly endanger), but it is importantly different from ordinary intentional action.
Society is not excusing it. Manslaughter is a serious crime for which you can receive life imprisonment. It is certainly not OK. Non culpable homcide is OK, but manslaughter is not non-culpable homicide.
All we do when we recognize the defence of provocation is recognize that there is a morally relevant difference between people who intentionally kill under extreme emotional stress and people who cold bloodedly and in full control of themselves intentionally kill another person. That morally relevant difference has to do with self-control, something that we have no problem recognizing in non-criminal contexts.