NZ defense counsel no longer able to use "gay panic" defense
New Zealand defense counsel will no longer be able to use the "gay panic" defense, known formally as the "Partial Defense of Provocation" that has seen several killers of gay New Zealand men get a lighter sentence of manslaughter instead of murder. The archaic "provocation defense" (Section 169 of the Crimes Act) was finally abolished last night. The Crimes (Provocation Repeal) Amendment Bill passed by 166 votes to 5 with only the ACT party voting against it.
Some would say that this outcome was brought at far too high a price, given that an intelligent, compassionate young woman, Sophie Elliott, had to die and her murderer, Clayton Weatherston, had to grotesquely slander her character posthumously in court through his use of the provocation defence to finally convince legislators to act. Granted, some of us may resent the lack of similar compassion in the recent cases of Ron Brown and Peter McNee, but at least no other LGBT homicide victim, their family or whanau will have to suffer through this.
The Partial Defense of Provocation has been used repeatedly for decades by killers to claim that an alleged sexual overture by a gay man was sufficient to partially justify a sudden, brutal and deadly assault.
Justice Minister Simon Power, Labour's Lianne Dalziel and Charles Chauvel, the Law Commission and Rainbow Wellington are credited with ceaseless attention to the attendant injustice involved here and prompt action when the time finally came. Labour MP Charles Chauvel had this to say:
"I believe that this bill is an important step towards a society where violence is condemned, where unremorseful killers are not given the opportunity to publically impugn their victims, and where the victims of crime can feel a little safer," said Labour MP Charles Chauvel today in Parliament.
"Remember those for whom this repeal comes too late," he added. "May they be the last to have their ordeals impugned in a court of law. Not one of their deaths is tolerable, and each of the victims whose killer has used the partial defence of provocation – successfully or not - stands as a silent witness to this reform.
"In closing, I want to pay tribute to their families and loved ones, who know that their lives were not lost in vain."
United States defense counsel have also utilized the "gay panic" defense as a legal defense against charges of assault or murder. In the murder of university student Matthew Shepard, Judge Barton Voigt barred this strategy.
In 1999 the murderers of university student Matthew Shepard claimed in court that the young man's homosexual proposition enraged them to the point of murder. However, Judge Barton Voigt barred this strategy, saying that it was "in effect, either a temporary insanity defense or a diminished capacity defense, such as irresistible impulse, which are not allowed in Wyoming, because they do not fit within the statutory insanity defense construct." After their conviction, Shepard's attackers recanted their story in a 20/20 interview with Elizabeth Vargas, saying that the murder was a robbery attempt gone awry under the influence of drugs, this claim was denied by the defendants girlfriends.
In the 2004-2005 trial of three defendants in the Gwen Araujo homicide case, a transgendered variant of the "gay panic" defense was also used.
A transgender variant of the gay panic defense was also used in 2004-2005 by the three defendants in the Gwen Araujo homicide case, who claimed that they were enraged by the discovery that Araujo, a transgender teenager with whom they had engaged in sex, was biologically male. The first trial resulted in a jury deadlock; in the second, defendants Mike Magidson and Jose Merél were convicted of second-degree murder, while the jury again deadlocked in the case of Jason Cazares. Cazares later entered a plea of no contest to charges of voluntary manslaughter.
In July of this year, Joseph Biedermann was acquitted of killing Terrance Hauser. Biedermann stabbed Hauser 61 times. A Cook County jury acquitted him of first-degree murder, essentially buying the claim that he was defending himself from unwanted sexual advance.
Most recent is the case of Lopez-Mercado:
A suspect arrested in the murder of gay Puerto Rico teen George Steven Lopez Mercado has been identified as 26-year-old Juan Antonio Martinez Matos, a father of four who is likely to use "homosexual panic" as a defense for the brutal killing of Lopez Mercado.
On the night of his death, Mercado was allegedly propositioned by Martinez Matos who was cruising for sex in a "red light district". Martinez Matos decapitated, dismembered and burned Mercado before dumping his body on a roadside in Caguas, Puerto Rico.
Additional reading: Professor Cynthia Lee, author of The Gay Panic Defense, Kara S. Suffredini, author of Pride and Prejudice: The Homosexuality Panic Defense, and The Crown Prosecution Service offers Guidance on Prosecuting Cases of Homophobic Crime.
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