Fri 2 Nov 2007 In: New Zealand Daily News View at Wayback View at NDHA
The provocation law known as the 'Homosexual Panic Defence' is justifiable and has worked well in the past, so "let's leave well enough alone," says independent MP Gordon Copeland. Independent MP Gordon Copeland The Law Commission, headed by former Labour leader Sir Geoffrey Palmer, issued a report last week urging the Government to remove the defence of provocation, due to "misuse" in cases where claims of homosexual advances by a victim have led to a reduced sentence for their killer. The Commission's report was welcomed by Labour MP Charles Chauvel, who said it was carefully researched. But Copeland wonders why the issue has come up, saying New Zealand has had only a "tiny number" of successful defence cases using provocation. "Two battered women, and two men after unwelcome homosexual advances, and suddenly Sir Geoffrey Palmer wants it out," he remarked in a statement. "Why is the law commission pushing this issue when the Law Society says provocation has only been successful in four out of 81 cases over four years?", he asked. Copeland, a former United Future MP who has repeatedly voted against gay- and lesbian-friendly law changes such as Civil Unions, drew comparisons to Sue Bradford's Labour and National endorsed bill removing parental action as a defence to smacking a child, saying that during that debate there were several cases where the courts rejected the parenting defence, which showed the law was already adequate. "Let's leave well alone. These defences have worked in the past and I see no need for change," Copeland concluded. Sir Geoffrey was quick to respond to criticism of the Commission's report by pointing out a number of inaccuracies in Copeland's reasoning. He noted the possibility of several more cases of the successful provocation defences - historic and recent - and the fact that the Criminal Law Reform Committee first reported on the matter in 1976. "In the three decades that have elapsed since then, four other NZ law reform bodies have independently arrived at the same conclusion. We are thus not alone in our views; nor are we acting suddenly," Sir Geoffrey explains. "Provocation patently has not 'worked in the past'," he observes. "Our reasons for recommending the repeal of this archaic defence have very little to do with the small numbers relying on the defence, and the nature of the successful cases. They have a great deal to do with the trouble that it has caused trial and appellate courts, in every jurisdiction, and its redundancy in a legal environment that includes discretionary sentencing for murder. Furthermore, history demonstrates the impossibility of attempting to reform it. "I note that you may find yourself in a minority with your assertion that there is 'no need for change," Sir Geoffrey sums up. "Clearly, not everyone supports repeal. The criminal defence bar, in particular, is strongly opposed to this remedy. "However, virtually everyone, including the defence bar, agrees that reform of some sort is required."