Wednesday, July 22, 2009

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 controlto 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:

the-brainy-guy-defence 

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.

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29 Comments:

Blogger Greig McGill said...

This is one of the many areas where my views have changed drastically since coming to an understanding of libertarianism. Previously, I'd have argued Franks' point. Now, no matter how painful, and how against my natural inclination it is, I have to agree with PC.

I think that's why so many people find libertarianism, and particularly the objectivist take on it, hard to swallow. Not everyone is capable of overriding their emotive side, and replacing it with a rational, objective outlook. We all want others to be happy, and we're all raised to think altruism is a positive value. Most of our early learning is based around putting others first, sharing, selflessness, etc. These SEEM like nice values. In this case, revenge does too. It takes a lot of effort to deny all that indoctrination and to embrace an objective and rational outlook.

In cases like this, while it is self evident which answer is the "right" one, it doesn't feel right at all.

7/22/2009 11:20:00 am  
Anonymous Anonymous said...

Hi Pete, in the Bouma scenario described (and in a libertarian judicial world) would Henk have a "right" to apprehend (restrain or confine) Poumako and his henchmen, pending the arrival of a poice force?

sg

7/22/2009 12:10:00 pm  
Anonymous Sus said...

Heavens, I should think so, SG. I damn well would (if I was physically able to), self-defence being one's natural right to combat initiation of force.

PC, a question:

Let's say that Henk Bouma *did* kill those monsters on their way out after they did what they did to Beverley Bouma. He would rightly be guilty of committing murder.

In light of the circumstances though, could he receive a lenient (or less stringent) sentence? What would happen?

Because if I was a juror, I would seriously struggle with the thought of sending him to jail.

Or at least classifying him in a similar light to, say, Weatherston, or indeed Poumako & co.

How would it work? Is this where degrees of murder come in?

7/22/2009 12:50:00 pm  
Anonymous Elijah Lineberry said...

See? you can leave it to the Jury to not be so brain damaged they require advice from lunatics on kiwiblog and facebook to reach a verdict.

A good result.

With regards to provocation, yes it should be abolished, but will be a hard sell with working class people who believe 'revenge' and 'getting your own back' to be normal behaviour... *SIGH*

7/22/2009 12:53:00 pm  
Blogger Greig McGill said...

Sus said

In light of the circumstances though, could he receive a lenient (or less stringent) sentence? What would happen?

And now we get down to the problem of needing damn good law.

If he did get a lenient sentence, what you're effectively doing is re-instating the provocation defense. Merely moving the defense from changing the name of (and associated sentence for) the crime, to just altering the sentence. You're also implying that some lives are worth more than others by saying that the penalty for taking some lives is less than the penalty for taking others because of circumstances - provocation?

Sticky one, for sure.

7/22/2009 01:03:00 pm  
Anonymous Sus said...

Yes, I was thinking of all that while I was posing the question, Greig.

But (in the fictional instance I posed) there is one glaring difference: Poumako *initiated* the situation -- had he not done so, there would have been no retaliatory action by Mr B.

Thus, the difference in circumstances.

Further, let's say the attackers *were* leaving. But Bouma doesn't know that they won't change their mind, or return shortly thereafter for another go. Is he not within his rights to preserve his personal safety on his own property?

Self-defence literally means defence of oneself. Spkg for myself, I'm on the smaller size of average. If somebody is initiating force toward/upon me, why should I not be able to utilise something at hand?

Isn't this where the term "reasonable" comes into play? To describe both my actions and the grounds for those actions?

Even sticky questions require definitive answers. I'd like to know.

7/22/2009 01:44:00 pm  
Blogger Ruth said...

With regards to provocation, yes it should be abolished, but will be a hard sell with working class people who believe 'revenge' and 'getting your own back' to be normal behaviour... *SIGH*

The problem is `society' is being spoken for by the likes McVicar and his lynch mob. The hang-em-high brigade have the floor.

I think no politician will touch this provocation issue - they want crime and punishment to stay a political football. They also don't have the imagination to come up with anything better or different - and neither do most 'libertarians'.

7/22/2009 02:37:00 pm  
Blogger AngloAmerikan said...

It was an "open-and-shut case" and should never have taken this much time and this much money.

I think people feared that the longer it dragged on the chances of the jury getting a case of Stockholm syndrome increased. People on the jury are a bit like hostages, locked up with criminals, unable to leave, the victim has now gone but the offender, with his little quirks, is becoming more familiar by the day.
It's been a good day.

7/22/2009 02:38:00 pm  
Anonymous Anonymous said...

"-and neither do most 'libertarians'."

From someone who wants to start a "libertarian-ISH" party. Anybody else spot the irony?

PLO

7/22/2009 03:28:00 pm  
Blogger KG said...

It's all very well to talk of getting rid of the defence of provocation and instead demanding good law, but what will happen in reality is the defence of provocation may be wiped from the statutes yet we will still have bad laws and bad application of those laws.
Until the courts begin handing out some realistic penalties for violent offences I reserve the right to enact retribution against anybody who harms my wife. I'm not prepared to trust some judge who confuses his/her role with that of a bloody social worker. And given the likely cultural orientation of any offender I'm certainly not prepared to see them 'sentenced' to a couple of years of flat=screen televisions and Playstations at Club Bro.

7/22/2009 04:43:00 pm  
Blogger Craig Milmine said...

I think no politician will touch this provocation issue - they want crime and punishment to stay a political football. They also don't have the imagination to come up with anything better or different - and neither do most 'libertarians'.

I understand that Labour MP Charles Chauvel is trying to get rid of the defence of provocation and he claims that the Justice Minister agrees with him. A NZ First MP last term (Ron Mark) tried unsuccessfully to gain support to get rid of the "gay panic" defence - which comes under provocation.

And Ruth, considering your last sentence quoted above is blatently false given that PC has just outlined the libertarian viewpoint very well, I presume you are just trying to be provocative? :-)

7/22/2009 08:37:00 pm  
Anonymous Anonymous said...

In the "what if" scenario posed Henk is IMO free to act based on what he knows. ie In defence of himself or others under NZ law to prevent further harm.He is in fact the only preon who "knows" what the offenders will do to their next victims.His plea would not be provocation but self defence.For the record I do agree provocation is not a defence.

7/22/2009 09:30:00 pm  
Anonymous V said...

'right to life', is an interesting concept. Where does libertarianism stand on the abortion front?

7/22/2009 10:15:00 pm  
Blogger Craig Milmine said...

V - a good question. Libertarians will argue that humans have a right to life (as in a right not to have it taken from you). When it comes to abortion the debate for libertarians then becomes 'what is a human?'

I would argue that a foetus is not a human until it can live independently of its mother - but other libertarians do argue that point.

7/22/2009 11:27:00 pm  
Blogger Greig McGill said...

V - there are a very good series of posts on this website called "Cue Card Libertarianism". The one on Abortion is a good one, though as almost always, it doesn't answer every possible objection. It's good enough for me though! :)

7/23/2009 09:31:00 am  
Anonymous Sus said...

Anon 9.30: Thanks for your response. That would be my viewpoint in that scenario, too. Self-defence, not provocation.

I also agree that 'provocation' is not a defence, per se.

Further to a comment made yesterday, I see that former MP Brian Neeson's "degrees of murder" has been raised again.

7/23/2009 09:47:00 am  
Blogger Dinther said...

In the "What if" scenario you may need to make a further distiction. Henk would be acting in self-defence all the way to the boundary of his property.

Only if he would be leaving his property can we start talking about revenge and even then the boundary is gray.

I am not a big bloke my self and while watching movies often agonise when the "good" guy knocks down the "bad" guy but doesn't finish him off.

If I ever get into such a situation and I do get the upper hand then I think I am likely to continue pounding until he stops moving for the simple reason that I don't want to risk any continuation.

In Henk's case, killing the murderers on the way out makes perfect sense as a way of self defence. After all, who says they won't come back.

You might have a case of revenge if Henk would go out the next day and kill them then.

7/23/2009 10:33:00 am  
Anonymous Sus said...

No argument from me there, Dinther. I had made the point about it occurring on his property in my second comment.

Cheers.

7/23/2009 10:48:00 am  
Blogger Comrade MOT said...

"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"

I disagree with you on this. The point here, is that he did wrong, because of the need, for an objective fair law to punish the offenders, not because they deserved freedom/life, because they clearly did not. "If someone is mean" that is no exuse to kill them cos no matter how annoying etc they are, they still deserve freedom, and their life. The same could not be said of the indeviduals in the Henk Bouma case.

Lack of respect for (a very important) law is not the same as lack of resprect for someone's life and freedom. Therefore I think that in such cases outlined, manslaughter is a more appropriate verdict than murder

7/23/2009 01:34:00 pm  
Blogger shari said...

Thanks for the heads up on former MP Brian Neeson's "degrees of murder", Sus.

I agree with Stephen Franks.

Yes, the concept of provocation must remain an element in a defence system.

Yes, various elements of provocation and self-defence work very well within the 'degrees of manslaughter and murder' system.

As such, there is ample opportunity for Simon Power to take the first step toward overhauling the NZ Criminal Justice System.

7/24/2009 05:13:00 am  
Blogger Madeleine said...

Provocation has its place in law. People who lack understanding as to what it is, how it works should not be calling for its abolition.

My blog post on a defence of the partial defence of provocation is a good counter to many of the sentiments being expressed here. I suggest you stop by MandM consider it. There are aspects of provocation you are missing here.

The reasoning behind calls for the abolition of the partial defence of provocation is identical to the anti-smacking brigade's calls for the removal of reasonable force as a defence because they don't want child abusers to dare to suggest their actions might be understandable or reasonable. If you can spot the flaws when Sue Bradford says them, why can't you see the same error in this instance?

Mill agrees with me. Bradford agrees with you. What should that be telling you Peter?

7/24/2009 11:30:00 am  
Blogger PC said...

Sorry Madeleine, I don't see that you're adding anything new to what Stephen Franks is saying -- which means I think I've already addressed your points.

BTW you should link to your piece.

I find it sad, too, that the verdict on Ron Brown's killer has already been forgotten about -- i.e., the chap who got away with murder by smearing the man he had killed.

7/24/2009 11:54:00 am  
Blogger Madeleine said...

I don't think you deal with it all - thanks for the link though.

If you are looking at PC's cue card on abortion make sure you click through to our Illiberality of Abortion linked in the comments from it.

7/24/2009 12:47:00 pm  
Blogger Comrade MOT said...

You may have adressed Madaline's Points PC, but you have not adressed mine. That is that in the examples of Stephen Franks and Madeline, the indeviduals in question, would have done wrong by not allowing a legal processes that is designed to be objective and fair. What they would not have done is fundermentally neglect the right of of others to freedom and liberty. becuase the hypothetical "victims" did not deserve it.

In these cases the crimes by the hypothetical "victims" were horrific, and there was not abiguity as to who did them. While even in such clear cases, it is still important to have an objective legal system to impart justice, and bypassing that system should be a crime; it is not the same crime as disrespecting someones fundermental right to life and freedom. Hence a verdict of Manslaughter is better than one of Murder in those hypothetical cases.

7/24/2009 02:20:00 pm  
Blogger shari said...

Hello Madeleine, PC, and Comrade MOT,

From the Brown case:

"Presiding Justice Helen Winkelmann told the jury not to take inferences or guesses into account during their deliberations. In answer to a question from the jury yesterday Winkelmann said that New Zealand law holds people accountable for drunken actions but that they may find the defendant had been so drunk that he may not have been capable of murderous intent."

I think the presiding judge is confused about the difference between physiological provocation and psychological provocation.

Physiological attributes are highly likely to be self-inflicted whereas psychological attributes are less likely to be self-inflicted.

Juries make mistakes, and the jury in the Brown case most certainly returned with the wrong verdict.

In NZ society where drunken behaviour is accepted as norm, it is of no surprise that the Brown jury reduced the crime of the taking of a man's life to manslaughter based on, as the judge said: "... the defendant had been so drunk that he may not have been capable of murderous intent."

In the Weatherston case, the jury returned with a right and just verdict.

It is hoped that Stephen Franks' reasoning will seep through the consciousness of NZ's lawmakers.

7/25/2009 06:28:00 am  
Blogger Comrade MOT said...

Another argument for my veiw on provocation, is that hypothetically if there were no law, no government, and no structure to make people accountable for their actions (i.e anarchy), most people would think that killing of the offenders in the cases outlined by Franks and Madeline, would be more justifiable.

Most people would agree that in anacahy/no law, that the killing of elliot by weatherston, would have been equally reprensible and evil, as it is now.

therefore one set of cases are always evil, the other set depends on context(law). One set is a crime against a person, the other is largely a crime against a(n) (importaint) legal system. this differentiation to me, means that it is ok to convict for manslaugher, not murder, under exteme provocation as outlined by franks and madeline.

7/26/2009 06:30:00 pm  
Blogger shari said...

Hello Comrade MOT,

What Peter had said: "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."

Sounds good, right?

What do the libertarians want?

Personal freedom, personal responsibility, and limited government.

So, their "civilising force" is either government or representatives of government (such as police).

What do libertarians want to see happen with the defense of provocation?

They want their 'civilising force' to get rid of it.

In other words, they are giving their 'civilisng force' more power.

And taking away individual freedom and responsibility.

Why do you think the NZ Libertarians are not taken seriously as a political force?

It is self evident.

7/28/2009 05:27:00 am  
Blogger PC said...

"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."

Which is to say we aren't in favour of lynch mobs.

"What do libertarians want to see happen with the defense of provocation? They want their 'civilising force' to get rid of it."

Which is to say we are not anarchists.

More of this, Shari, and I'll struggle to take you seriously.

7/28/2009 10:21:00 am  
Blogger shari said...

Hello Peter,

Far be it that my reasoning should make you struggle.

I don't take libertarians seriously at all.

In the interests of equality and fairness, I implore you not to take me seriously either.

Or, you could do a Perigo and ban me from writing on your blog.

After all, libertarians understand the concept of personal freedom more than the common masses.

Combine the libertarians' line of thinking on getting rid of the defense of provocation with legalisation of drugs, and you will get a state of anarchy.

7/28/2009 11:36:00 am  

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