The unsuccessful use of the provocation defence greatly moved the public and politicians yet a successful case against a gay-killer remained invisible. Social commentator David Herkt asks why. Isn’t it good, people say in the wake of the Clayton Weatherston trial, that the whole legal defence of provocation has been re-examined and now, the Government assures us, it will be struck from the books? Well, no, it isn’t. Now, don’t get me wrong, I am all for the defence of provocation being removed from our statutes. It was a nasty piece of work and in the hands of the legal profession it was just getting nastier. Basically what it required was that the defence in a murder trial got to claim that the killing was provoked by the victim, that it was somehow deserved. Judith Ablett-Kerr’s provocation defence of Clayton Weatherston after the murder of Sophie Elliott gave us all a glimpse of just how vile the defence actually is. Ablett-Kerr was not temperamentally suited to delivering the character assassination that this defence requires from legal practitioners. She couldn’t work it. We all saw it happening and most of us were disgusted by it. To be successful, this defence requires insinuation and implication. It is a massing up of prejudice and malice. It is a sly slaughter of character. Watching Ablett-Kerr we observed a hired magician flubbing a sleight of hand. We all saw the creaky moves. Instead of being impressed with the skill, we all reacted with contempt; how dumb do you think we are? Sophie Elliott In the wake of this verdict, the whole country erupted. Parliament is moving faster than it has moved for a long while. The paragraphs of Section 169 of the Crimes Act which permit the reducing of a murder charge to manslaughter if provocation can be proved sufficient to deprive “an ordinary person” of the power of self-control are set to be struck off the books. It is painful to realise that just immediately before Judith Ablett-Kerr blew it and the whole country got outraged about it - a mere thirteen days before - Peter Kaye for the defence in the trial of Ferdinand Ambach for the murder of Ron Brown had used the provocation defence very successfully. But then Ron Brown was a gay man. He wasn’t like ‘our Sophie’ as one post-verdict radio talk-back caller insisted on referring to Sophie Elliott. He wasn’t an attractive, nicely groomed, young, heterosexual woman with all her future before her. Ronald Brown Ron Brown was an older man. Add that to the ‘fag’ tag and it is already looking pretty good for Ambach’s defence, isn’t it. Throw in the fact that in spite of his 69 years Brown was also sexually active, and add to that a 37 year difference in age between Brown and Ambach... well, you don’t even have to try, do you? It was very much a business of competing stories. The Crown in the Ambach trial had one story backed by a lot of evidence. The defence had only the ability to try and tell a new story, one strong enough to overcome the essential evidence that Ambach was found at the murder scene. By playing the gay card just right, the Ambach defence team succeeded. In their hands Ron Brown’s continuing sex life was something to be ashamed of. In their hands his desire was enough to condemn him to half-human status. In their hands his closeted sexuality became "a dark secret." In their hands the fact he was gay was still enough to outrage any ‘right-thinking’ man. So it is great that the use of this defence is going to cease. Sitting in court listening to it being manipulated by a skilled legal team is a really unclean experience – I can vouch for this. As a defence it did not reflect well on the legal profession or on the state of our laws. But it actually irks me a little that it took the death of a young heterosexual woman to get the public behind the need to change the situation. Between the Ambach verdict of manslaughter and the Weatherston verdict of murder was a mere thirteen days. What a difference those two weeks made. When we talk about equality in contemporary New Zealand, don’t forget this. Talkback radio did not erupt when Ferdinand Ambach was only found guilty of manslaughter. The op-ed pages of newspapers weren’t stacked up with reasoned outrage. Blogs weren’t condemning the verdict. Commentators weren’t queuing up to express their shock for TV cameras. In the end, Ron Brown was somehow worth so much less than Sophie Elliott – in the minds of the trial jury and in the minds of New Zealanders. So, yes, it is great that the provocation defence is finally going to be struck out of law. In the hands of the legal profession its use was beginning to stink, to put it bluntly. But why did it take the murder of a young heterosexual woman to get the public, the straight media and the blogoshphere behind its removal? (David Herkt is a long-time author, researcher and observer of glbt cultures. He was a member of the GayNZ.com courtroom team which reported daily from the Ambach trial.) David Herkt - 4th August 2009