The news that five Maori family members were given community sentences and spared jail terms after being found guilty of the manslaughter of their niece, who they believed to be possessed by demons, during a prolonged exorcism ritual that involved repeated eye scratching and waterboarding (a term now unfortunately part of the popular lexicon) of the victim (who it turns out was mentally ill rather than possessed), has caused a predictable stir in judicial and political circles. Pundits on the right lambaste the apparent double standard applied to Maori in this instance, where gross ignorance, superstition and stupidity cloaked in the garb of “traditional beliefs” is given a cultural pass when it comes to adjudicating personal and collective responsibility for the lethal consequences of said beliefs. The argument goes that any Pakeha exorcism resulting in death would have seen those responsible incarcerated, and that ignorance is no excuse is the eyes of the law. There is truth to this view, as there have been prior instances of bible-bashers (here meant literally) being jailed for abuses against individuals suspected of possession or other religious transgressions. There is also the issue of relative justice, in the sense that people involved in assisted suicide or drugs offenses have received jail terms rather than community service (ie. their crimes were less heinous Â than this one). From this vantage point, the light sentences handed down to the defendants on grounds that they did not realise the consequences of their actions and thought that they were doing good for the victim is an astonishing act of judicial double-standards rooted in over weaning political correctness. The bottom line, in this view, is that is is condescending, patronising and just plain wrong to let Maori off lightly because they may have “traditional” beliefs the lead them to commit acts that others could not get away with. After all, “traditional beliefs” are not always correct, civilised or appropriate, because if they were then NZ society and the law would approve of foot-binding, genital mutilation and ritualistic whippings as acceptable practice for those who ascribe to them.
On the other hand, some progressive pundits and cultural relativists see in the decision a wise act of compassion by a judge who believed that the family had suffered enough with the inadvertent death of Janet Moses at their own hands. In this view it serves no purpose to punish them with jail terms because they are already acutely aware of the mistake and have a life long punishment to serve as a result of it. They and society would be better served by having them do community service and learn more about their own cultural heritage so as to not distort traditional beliefs regarding makuto and its treatment.
From my perspective, the main trouble is that in democracies the law should universally apply, and that application should apply universally in sentencing. If ignorance of the law is not an excuse for violating traffic regulations, then surely it is no excuse for manslaughter. Yet in heterogeneous societies comprised of an assortment of pre-modern, modern and post-modern beliefs espoused by indigenous, colonial and post-colonial groups, it may be impossible to apply the “justice for all” standard in ways that do, in fact, ensure so. I am thus left with mixed feelings about the verdict and sentence. On the one hand, the actions of these individuals are inexcusable; on the other hand, they were acting in good faith when they committed them. What then is a fair sentence in this case? Â Are some groups entitled (that word again!) to different standards of justice based upon their belief systems? For the moment I am left with the uneasy feeling that ignorance may not be bliss, but for some it makes for a better defense.
I practically need to script this post.
Go and read Queen of Thorns’ thorough fisking of apologia for George Sodini.
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?
[I just wrote a rather long comment at The Hand Mirror 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 battered women, in fact it only protects their abusers]
The Law Commission has done a lot of work on this, and it appears that the provocation defence is not of value in “battered women syndrome” killings, so we lose no protection for women victims of domestic violence by repealing it.
Some Criminal Defences with Particular Reference to Battered Defendants
The Law Commission did a piece of work which focussed solely on defences for battered defendants completed in 2001 (Some Criminal Defences with Particular Reference to Battered Defendants – NZLC R 73. It shows that provocation is not an effective defence for battered women, and even that it has been successfully used by a perpetrator of domestic violence.
In R v Tepu a man successfully used provocation as a partial defence when he beaten his wife to death â€“ her provoking act? going to the Police when he severely beat her
Partly in response to recommendations in that report the mandatory life sentence for murder was abolished in 2002, and judges have sentencing discretion for battered defendants.
The Partial Defence Of Provocation – NZLC R 98
From 2004 to 2007 the Law Commission did work specifically on provocation (The Partial Defence of Provocation) resulting in a recommendation for its repeal. As part of that they rechecked there would be no disadvantage for battered women and, in fact, did some handy stats.
Of the 81 homicide trials they looked at (2001 to 2005, Auckland and Wellington) in 15 provocation was used as a defence. In only one of those was provocation used as a defence by a woman. In that case, while the killer had experienced domestic violence, she killed her husband because he said he was leaving her. I won’t copy the description here (see p103 of report if you really want to), but it’s exactly the kind of killing-someone-because-they-say-they’re-leaving that we shouldn’t allow to be called manslaughter.
So there were go, the Law Commission has worked really hard on the issue, and provocation is not helping battered women who kill to protect themselves.
The current spotlight on the provocation defence invites consideration of some interesting counterfactuals which dwell upon the gender, sexuality and power relationships in play.
Such as, would either (any?) of the women who alleged sexual harassment by Richard Worth have gotten away with pleading manslaughter if they’d killed him in response to his sexual advances?
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, andÂ 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 â€“ 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 â€¦ 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 â€¦ 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]