I attended the launch of All Our Rights – a campaign to repeal the “Homosexual Panic” defence. This defence is used by straight men who murder gay men. The argument is basically that for some straight men, the mere existence of a gay man causes the straight man to panic and beat the gay man to death. Therefore there was no intent to kill, therefore the killer deserves a lesser sentence. All Our Rights – a campaign to repeal the “Homosexual Panic” defence. This defence is used by straight men who murder gay men. The argument is basically that for some straight men, the mere existence of a gay man causes the straight man to panic and beat the gay man to death. Therefore there was no intent to kill, therefore the killer deserves a lesser sentence (No Right Turn has a good post on the campaign).
It is less than a week since Judge Michael Lance imposed no penalty on Craig Busch for assaulting his partner. The judge said that Craig Busch’s violence was the ‘human and inevitable’ response to seeing his partner in bed with another couple.
I don’t believe jail does anyone any good. I don’t support the judicial system. I’m not even really arguing for tougher sentences. If Craig Busch’s sentence was the standard sentence for assault, I wouldn’t complain.
What I am arguing against is a judicial system that openly states that some of us are not fully human and deserve violence.
As I pointed out, provocation is not just about “homosexual panic” – its most commonly used by misogynists who have murdered their partners or ex-partners (often brutally and with premeditation – and there’s no other way to interpret driving 20 miles with a loaded shotgun). And if Busch had killed his partner, rather than simply leaving her with multiple broken bones and in need of nine stiches, you can bet he would have used it.
While supposedly being about culpability and recognising “human frailty” (I’m sorry, murder is not a human fraility. The law should expect better of people), the provocation defence really undermines equality under the law. Whether someone “counts” as a person or a “worthy” victim should not be a question to be decided by a jury.
That’s not what the “gay panic” defense is. It isn’t the existence of a homosexual, it’s that the homosexual allegedly made a sexual overture. Which is absurd (if it was OK to whack someone if they made a sexual overture that was found repulsive, what would the population of the Earth be? George Clooney and Selma Hayek, that’s what. Hope they like each other.), but marginally less absurd than what you described.
I’m not sure what you’re saying vis a vis Craig Busch. Nobody’s humanity is being questioned. The principle being cited is an ancient one, that some circumstances (like finding a partner in bed with other people) are thought to be enough to overcome the presumption of rationality. It’s not legal to conduct an assault under those circumstances (this guy seems like a real piece of work) but it’s considered less severe an offense than a cold-blooded assault.
Busch’s girlfriend was actually trespassing wasn’t she? He had asked her to leave his house and came back to find her in bed with the couple. None of them had any right to be there. It would have been legal to conduct an assault under those circumstances. I doubt, with the DV overtones, that any court would actually find any violence toward a women to be ‘reasonable’ in those circumstances – but it’s a theoretical possibility.
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Presumably, Maia is discussing what it means in New Zealand, not in the US. Are you certain that what you’re saying here is true of NZ practice?
Yes. It says so on the linked site.
Robert: a) AllOurRights is focused on the “homosexual panic” angle (which has been used in a pair of high-profile cases over the past few years, much to people’s disgust), but s169 is rather wider than that. Try grepping NewzText for “provocation defence” and seeing the horror stories that turn up.
b) s169 applies only to murder. There is no defence of “provocation” for assault in New Zealand – though it can clearly be considered a mitigating factor by a sentencing judge.
James: a) she wasn’t trespassing. It was her house too, and removing those rights requires something more than a male to say “I divorce thee” three times.
b) even if she was trespassing, that is not a blanket license for violence. Specifically, the right to use force to prevent or evict trespassers specifically excludes striking or causing bodily harm.
“Grep”. Set the wayback machine. Thanks for the BFTP.
I am sure there are a lot of horror stories. Provocation defenses have a pretty long history, however, and are used in what I would consider a feminist fashion (battered spouses in proactive self-defense, for example); an outright revocation of provocation as a defense would seem to be rather precipitous. Baby, bathwater, etc.
Robert: While provocation can theoretically provide a defence to battered women, that’s not how it has turned out in New Zealand. To the contrary, it has protected abusers far more than the abused (the NZ Law Commission cites a case of a man who murdered his partner because she complained to the police about assaults, having previously been beaten into promising not to do so. This was accepted as provocation, and the killer was convicted of manslaughter rather than murder).
This isn’t a case of throwing out babies with bathwater; its a case of removing a legal defence which excuses the behaviour of violent thugs with poor impulse control.
Perhaps so. But so far I haven’t seen anyone present any evidence that the provocation defense is doing more harm than good. I can come up with horror stories in any country for any legal doctrine; that activists have some horror stories doesn’t prove anything one way or the other.
But that said, I don’t know the situation on the ground down there, and the activists may well be correct.
If you’re disinclined to believe activists, I suggest reading the NZ Law Commission report (linked to if you follow the link to No Right Turn above). It studies the issue among a number of defences available to victims of domestic violence, and recommends repeal.
Robert – I was being slightly facetious with my definition – at times the only person who gives evidence that the gay man in question was, in fact, coming on to the murderer, is the murderer.
Thanks for providing all the information Idiot/Savant. There have been some really high profile cases where battered women have not been able to use the provocation (although I can never remember the name of hte most famous one, is it Gay Oakes, or am I confusing things). I’m unconvinced with the law society’s proposal though – I’m not sure I trust the way judges would use discretion in sentancing.
I wonder how far this argument would get a lesbian accused of violently attacking a straight man for hitting on her. They could call it the ‘straight panic’ defense.
Maia: strangely, I trust judges’ discretion in sentencing more than I just juries in this matter. At least the former can be challenged (though there you also have to trust prosectors to push it).
Damn, Maia; I clicked through to the site. I can’t believe that anyone short of an actual psychotic would be able to successfully use a defense like this in a court of law.
I agree, violent crimes should not be justifiable. But, alas, this is the slippery slope that was established a long time ago. The first usage of this type of argument was actually women claiming that they had a justifiable reason for killing their partners. Now, a lawyer seems to have established the same defense to use, instead of against straight men, against gays.
To actually be consistant, it would require our judicial system to acknowledge that crimes are not justifiable, something that they are not likely to do soon.
The first usage of this type of argument was actually women claiming that they had a justifiable reason for killing their partners.
Ah, are you talking about a particular context on this, Rand? “Crimes of passion” have been around a long time. If I do the research, do you think I won’t find men getting away with killing a cheating spouse or their lover when caught in the act of betrayal a long time before women started using a battered spouse defense? I”m not just talking the U.S. – maybe you are. But even so, I’m willing to bet they’re out there.
Yeah, it’s like Paul in Stephen King’s book Misery! How dare Paul kill someone who was holding him hostage and had committed dozens of violent acts against him, merely because Paul was certain that she’d be violent against him in the future?
Remember, Anne wasn’t attacking Paul at the time he attacked and killed her (at least, she wasn’t in the novel). She was bringing him caviar and didn’t suspect a thing; she thought they were getting along very well.
Paul in Misery was a murderer. The horrible moral flaw of the novel is that it didn’t end with Paul being tried and put in prison for killing Anne Wilkes.
I think it is a mistake to assume that the homosexual panic defense is the outgrowth of cases wherein women who have been the victims abuse have argued diminished capacity when they assaulted or killed their abuser. Some variation of this defense/excuse has been around for as long as there has been gay bashing.
Back in the day, when I was in high school, it was not unusual for presumably straight teens to pass themselves off as hustlers in order to beat and rob their “tricks” or just to beat them up for kicks. Whenever they were busted, they invariably would claim that they were reacting to a improper sexual overture. Gay men being considered criminals and perverts at that time made this an easy out. Such “improper” conduct could be nothing more than a verbal invitation to sex. It had nothing whatever to do with a legal defense of retaliatory violence by women against abusive men and everything to do with the privileging of male heterosexuality.
Violence against homosexuals was considered justified simply by virtue of the fact that they were homosexuals.