I have drafted a bill for my colleague Lianne Dalziel, Labour’s Justice Spokesperson, which in line with the Law Commission’s recommendations would remove the partial defence of provocation from the Crimes Act 1961.
The defence is sometimes wrongly referred to as the “Gay Panic Defence”. Provocation is a partial defence to murder contained in section 169 of the Crimes Act 1961. When it is pleaded successfully, it reduces a murder charge to a manslaughter conviction.
There must be some – but need not be much – evidence of provocation before a judge lets a jury consider whether it should be available as a defence. The threshold test that the judge has to apply is extremely and unacceptably low. It therefore needs to be raised so that a crazed reaction to a mere advance, taunt or affectionate touching is never enough to let a killer escape a murder conviction.
If someone is on the receiving end of an unwanted advance or a taunt then they should just walk away. If an advance is accompanied by physical pressure or contact, then reasonable – but never deadly – force to repel the pressure should be the absolute maximum allowed by the law.
There is ample room for the judge to consider provocation as a mitigating factor during sentencing without murder being reduced to manslaughter on the flimsiest of evidence.
I have attached the bill and am keen for feedback on it here
PS: David Farrar also has a good post on Kiwiblog here.