Monday, 13 August 2012

further thoughts on what is wrong with provocation

In July 2008 our parish was shocked and saddened when a man was found beaten to death next to the side entrance of our parish church of Saint Mary’s Maryborough.  It turned out that the man, Wayne Ruks has been beaten by two assailants at about 9.15pm the previous night and left lying exposed to the cold night air unaided until he was found deceased the next morning around 8am.   An efficient police investigation led to two men being charged two days later with causing his death.  In the trial, the reason given for the multiple bashing was that the victim has allegedly made a homosexual advance towards one of the assailants that led to the attacker losing all control and savagely beating him for many minutes as he lay on the ground and then leaving him lying there.  I was shocked and horrified to learn that in a murder case there is a defence under the provocation head, in common law, commonly known as the homosexual advance defence.  This is basically the suggestion that a reasonable man could be understood to lose all self control and lash out angrily and violently at even a slight touch or gesture of homosexual advance. This defence appears available even if the assailant mistook an action as a gay advance even if it actually was not. The problem too, is that provocation of this type could also be concocted as an excuse for excessive and violent behaviour.   It was too much when just over a year later in our same region another separate case came to trial of two men who were charged with bashing a hitchhiker to death after picking him up at Glenwood. Again in this new case the explanation for the savage bashing was that the victim allegedly touched one of the assailants in an unwanted sexual way.  Many people can understand why I and others at this point reacted to this defence.  If a defence like this is not removed, it could tap into the prejudices, fears and assumptions of juries and infect their considerations. Those who argue that the defences in these two cases did not finally turn on the issue of homosexual advance, are attempting, in my view, to unscramble a well-scrambled egg.

The defence of provocation is an archaic defence which goes back to the time when men had duels with eachother and where the community was more prepared to accept that there were some times when it was understandable that lethal violence might be used when a person was sorely provoked. The assumption behind this loophole is that the community implicitly accepts that lashing out violently and disproportionately to the actions of another (or their perceived actions)  is some form of mitigating explanation for gross violence and a lack of control over one’s temper.  There is no place for this kind of thinking in this day and age.   We now understand that even one punch can kill. We better appreciate that stomping on someone or kicking them while they are down, is often a lethal and vicious action.  We have campaigns in the community recommending “just walk away”  and yet we still have common lae defences available under our present legal system that make appalling allowances for angry, violent men with bad tempers. By allowing this law to continue to exist, the community is implicitly saying that it understands and accepts that violent and disproportionate responses relating to some unknown prejudice, fear or chip in the mind of the attacker, should be accommodated.   It really should not.

As I looked into this provocation section, I realised that provocation is often used unequally against certain groups within the community.  Provocation has been used against racial minorities,  it has been attempted by violent abusive men as an excuse for bashing their women partners or wives for alleged provocation which really masks abusive patterns of relating by these men.  And. Provocation is often used by men against other men, including several incidents when the defence has been raised as a homosexual defence.    
In many states of Australia and in New Zealand, the provocation defence has either been removed or amended to prevent situations where violent men have claimed that their women partners had provoked them by telling them they were leaving them or when they discovered that they had been unfaithful to them. As we know, there are many ways of being unfaithful in a relationship, but it seems only one is utilised as a partial defence of provocation.    I also noted a recent case where a Sudanese man was violently beaten and killed by a group of thugs.  One of the attackers tried to use the excuse that the Sudanese man had attacked him first but the judge in that case rejected this and said that this was a concocted story to cover the unprovoked attack of the victim.  This does illustrate the possible racial overtones of the provocation defence and also the real possibility that violent men will make up stories about being provoked to try and mitigate against their horrific and excessive violence.   The problem with the provocation defence is that by virtual definition it is not a proportionate response to the alleged actions of the victim. In fact, it is a disproportionate response that does not match the actions. If it were proportionate it would arguably be self defense in reasonable fear for one’s life, which is a separate and complete defence but naturally harder to argue and prove.   In New Zealand, the provocation defence was totally removed after a case when a man killed his female partner and claimed she provoked him. This was not accepted but it caused such an outcry because the community clearly saw this as playing right into the hands of violent abusive men, that it could not be tolerated.  There are many things wrong with this defence.  The community has a right to expect its members to have control of their tempers and has a right to reject violence as any sort of acceptable response to provocation.  Arguably only self defence in fear of one’s life is an excuse for violence that leads to death. 

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