Provocation is not a legitimate defence [update 3]
Lawyer Stephen Franks argues at his blog this morning that provocation should be a defence in law, though not to the extent that it’s just been abused in a Christchurch court by a clear-eyed killer and his loathsome legal team.
Self defence (or accidental death) isn’t enough to cover all situations, says Franks, who offers this example:
If Henk Bouma had been able to free himself to attack Poumako and his henchmen while they were leaving his Reporoa farmhouse no legal system with any respect for normal human emotions should convict him of a wrong. They tied Bouma up, took his wife Beverly to suffer for hours in another room, taunted Henk, then shot her dead.
Self defence would not be available to someone in Henk’s position if he attacked the home invaders as they were leaving, because they were clearly then ending their threat. If only the facts had played out as proposed in this thought experiment. He would have deserved commendation, not conviction.
I don’t agree. Don’t agree at all. Much though it pains me to say it, Henk Bouma would have deserved conviction if he’d lost self control and done to those animals what we’d all like to do in his place. The provocation certainly should have been grounds for a light sentence, but his guilt would be beyond doubt.
Our right to life gives us our right to self defence – what it doesn’t do however is give us a right to retaliate in cold blood, or even highly-charged blood. The very point of law is to place the retaliatory use of physical force under objective control – to take retaliation away from the lynch mob and place it in the hands of civilising force.
The use of retaliatory force [summarises the Clemson Institute] cannot be left to the discretion of individual men who may disagree about its use in particular circumstances. By delegating this power to their agency, the government, the citizens can ensure that objective rules in the form of objective laws [exist] to guide its use.
We can surely sympathise with a Mr Bouma who had attacked and killed his wife’s torturers. Given the shambles of the present legal system – a place where objective rules in the form of objective laws are celebrated only in their absence – a place where courts put victims on trial and convict people for crimes without any victims at all – where murderers kill while out on bail, convicted criminals remain unincarcerated even after dozens of guilty verdicts, and jailed criminals can enjoy all the comforts of home – a non-objective “system” where there’s every expectation that Mrs Bouma’s murderers could easily go unpunished – in this sort of place we should sympathise if Mr Bouma had given vent to what we all would have felt in his shoes.
But that doesn’t make it right. Life is not a Charles Bronson movie.
Let’s use the anger instead to keep insisting that the justice system be just in more than name only, not further contaminated by the existence of bogus defences to compensate for what is becoming a bogus justice system.
* * Other posts on this trial:
UPDATE 1: The jury has declared Sophie Elliot’s killer guilty of murder. The correct result.
The job now is to ensure that no other victim’s family has to endure in court and from the country’s media what Sophie’s family and friends had to endure at the hands of this lowlife and his loathsome lawyer – which means working to remove the (now lessoned) defence of provocation from the books.
UPDATE 2: Greg Edwards, who took down his Facebook group last week at the request of Sophie Elliot’s parents – the narcissist’s lawyers were using it as an excuse to delay the trial – has started a new one: No More Provocation Defence for Murder!!! Enough is enough!!!. Don’t just get mad, let’s get good law.
UPDATE 3: Perhaps something else for which to use this case as a spur: just consider the legal aid bill that the abominable Ablett-Kerr will now be presenting to taxpayers for an open-and-shut case she dragged out for weeks.