Thu 12 Aug 2004 In: True Stories View at Wayback View at NDHA
A 55-year-old man picks up a 24-year-old on the side of the road. They make an arrangement; the younger man will come back to the older man's house and masturbate in front of him. It's a look but don't touch arrangement – the younger man says he is not gay. But he's worked as a rent boy before. And a former girlfriend was a tranny. He's no stranger to this kind of scenario. They return to the older man's house. Both get naked. The younger man begins his erotic show. At some point in the proceedings, after the older man has taken poppers and got excited, he inserts a finger in the younger man's arse, breaking the boundaries of their paid agreement. The younger man reacts violently, punching the older man in the face thirty, forty, fifty times…the exact number of blows is unclear. Anyhow, it was enough to spray the older man's bedroom with blood. Floor. Walls. Ceiling. The younger man leaves, stealing the older man's car and leaving him to choke on his blood and vomit for up to an hour before he finally dies. In the following days, the younger man takes a joyride in the car. He boasts to friends about the killing. He even makes up a rap song about it. He's eventually arrested, tried, and found NOT GUILTY of murder. He admits to the killing – no problem there. But it's not murder, say his defence. It's merely manslaughter “under provocation”. They say he lost control after the “sexual advances” were made. He was humiliated by them, so humiliated that he flew into this rage. Justice Marion Frater buys it, and instructs the jury that she believes there is grounds for provocation. The jury deliberates for three days on the evidence, and eventually buys that story too. It was not premeditated murder, but an unfortunate loss of control brought on the sexual advances of another man, his client in a paid sexual liaison. Does this not seem insane? Maybe. But when you live in a country where you can wake up in the morning, turn on the radio, read the newspaper, and be told that punching someone in the face up to fifty times, leaving them for dead, stealing from them and boasting about it afterwards is some sort of unfortunate accident, its par for the course. David McNee was a victim of his own appetite for rent boys and casual sexual partners, ran Newstalk ZB's headline bulletin the morning after the verdict was delivered. ZB's Leighton Smith observed that the danger is part of the thrill for gay men who pick up, according to gay community representatives he didn't name. His female caller agreed with the manslaughter verdict, saying McNee shouldn't have been doing what he did in the first place. Neville Creighton from Auckland's Gay and Lesbian Welfare has been deluged with requests from media for comment in the wake of the verdict. After agreeing to a live interview with Radio Pacific's Paul Henry, Creighton found himself being implicated, with Henry berating him as a gay community leader for not telling gay men to curb their behaviour. Not everyone blamed McNee for his own death, though. NZ First MP Ron Mark blamed justice system blunders for McNee's death, seeing as the killer, Phillip Edwards, had violently offended before, and was psychologically assessed in prison as dangerous. Radio Pacific's Michael Laws agreed, saying officials responsible for Edwards' release from prison days before the killing had “blood on their hands”. It seems everyone but Phillip Edwards was to blame for the murder – and it was murder, no matter what the jury or Justice Marion Frater has to say – of David McNee. That the defence of ‘homosexual panic' was even allowed by a court in New Zealand, let alone accepted by a judge and jury, is an indication of how little this country values the lives of its gay citizens. Dr Alison Laurie, director of the gender and women's studies programme at Victoria University, puts it down to homophobia, noting that there is no ‘heterosexual panic' available for women who might find themselves in similar situations to that which Edwards alleged occurred with McNee. “If tonight, all the sex workers out there in the massage parlours and brothels of the big cities with the respectable businessmen who're buying them were all suddenly to whip out knives and guns and kill their clients because something offended them, there'd be a massacre,” she says. “There's a very thriving sex work industry out there and most of it is heterosexual. Were not talking about what's part of the ‘gay lifestyle', we're talking about what men do. There are large numbers of men who like casual sex and some of them like to buy it. It's considered that it's a natural thing that heterosexual men are doing. But the gay man is considered a predator, a terrible immoral person who brought it on himself.” The reprehensible and cowardly nature of the “homosexual panic” defence has been roundly debated overseas, with even human rights advocacy group Amnesty International, usually more famous for its positions on persecution of citizens in developing countries, weighing in on the matter. They stated in 2001 that acceptance of this defence by a court amounted to nothing more than state-sanctioned homophobia. In the UK, it's called Homosexual Panic Syndrome, and an allowance is made for it in law. Gay rights groups have campaigned for changes to the law, but so far none have prevailed. Heterosexuals take note – one of the more recent cases where the defence was invoked in England involved a married man with no previous history or evidence of bisexuality whose killer claimed a sexual advance was made. Only the killer's word was available as evidence that this had ever occurred, yet this was accepted and David Hunt was convicted of manslaughter, not murder. The Western Australian Ministerial Committee, considering the issue in 2002, recommended the Criminal Code in Australia be amended to expressly exclude the defence of provocation being available (either for assault or murder) as a result of a non-violent homosexual advance. They also recommended that the Northern Territory Government develop and implement reforms to ensure that the defence could not be available for use in that territory. As recently as last week Paul Howard, the District Attorney of Atlanta, Georgia in the United States moved to bar use of the defence within his jurisdiction. Howard's assistant DA was beaten to death in his own apartment in May 2001. His killer said his victim had come on to him. Howard said his prosecutors were "sick" of lawyers using the “homosexual panic” defence. "It is demeaning, outrageous, insulting and downright ridiculous for defendants to believe that the death of any human being is justified because he or she is homosexual.” The statement directly followed a court case in Georgia where for the second time in a year, defence lawyers had attempted to invoke “homosexual panic”. And for the second time in that year, it didn't work. The jury rejected it. Not New Zealand though. We have a history of accepting homosexual panic as a defence which Dr Laurie says stretches back as far as the 1940s, when a 19-year-old New Zealand soldier was let off for killing a 25-year-old American soldier. In 1950's Napier, a gay man visiting his lover on a boat was thrown off the gangplank by the other sailors and back onto the wharf, cracking his skull open. They were acquitted on the basis that the ship was their home, and they had the right to stop perverts coming on board. In 1964, six youths who punched and kicked Charles Aberhart repeatedly in the head until he died outside Christchurch's Hagley Park toilets were – firstly – only charged with manslaughter, and secondly, acquitted by the jury after they claimed self-defence against his propositions. Thirty years later, after the passing of both the Homosexual Law Reform and Human Rights Acts, little had changed. Ronald Anderson was murdered in the Hawkes Bay in 1994. His killer claimed provocation, in the form of a perceived homosexual advance. Anderson merely put his hand on the killer's knee, which was enough to spark off an attack resulting in his skull being pushed in and extensively fractured, following six separate blows to the head and face from an axe. His charge, as with Phillip Edwards, was reduced to manslaughter. The following year, Jim Curtis was bashed and left brain-damaged by Tai Tahi Marsters after the two met at a known beat in Napier and returned to Curtis' home. After an advance was made, Marsters attacked, hitting Curtis over the head with a glass decanter. Marsters invoked “homosexual panic” and was set free on charges of assault and attempted murder. “There is an underlying culture of homophobia in the same way as we have an underlying culture of racism,” says Dr Laurie. “We would be deluding ourselves if we imagined that we live in a society where all that has gone away, it clearly hasn't.” Attempts to ban the use of the homosexual panic defence in New Zealand have not been successful. Some, including ACT's Stephen Franks, would regard this as granting “special rights” to gays. “The only reason for promoting a ban on taking unwelcome homosexual advances into account is to give homosexuality some level of privileged or preferred status,” he said in a press release in February 2002. I imagine the only thing that gay men would prefer is not to be bashed to death when out looking for a partner, sexual or otherwise. If such a killing does occur, it would follow that those men would prefer that society at least treats it as a crime. Gayline's Neville Creighton is unsurprised by the media and public reaction to the McNee verdict. “In the present climate this is just one more thing that says gay men are no good,” he says. “You've got Archbishop Vercoe, you've got Destiny Church, you've got Peter Dunne. It's really the darkening of our social atmosphere. It shows us the veneer of humanity is pretty thin.” Chris Banks - 12th August 2004