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Provocation and the ‘homosexual advance’ defence

  • July 21st, 2009

When the jury delivers its verdict on Clayton Weatherston, whatever it is, those responsible for our criminal justice system should be ashamed. This case has exhibited the gross self  indulgence of this system.

Weatherston was caught covered in blood having taken a knife to the room of a much smaller former girlfriend. The only question was "what’s your excuse".

The court should have asked him that question within a month of arrest, giving him a day at most to put it. Perhaps if the jury thought he’d raised enough uncertainty that they wanted to hear more the case could be adjourned for another month while Weatherston dug up any supporting evidence for his excuse. Another day at most should have been allowed to present that.

Criminal justice insiders have persuaded themselves that their indifference to cost constraints on process is evidence of the supreme importance of what they do. Their exemption from the normal constraints that affect other social institutions is flaunted, instead of being cause for embarrassment.

Eliminating the defence of provocation is not the answer. It can be a legitimate excuse. There may be times when provocation does reduce the moral culpability of murder to manslaughter, when the murderous reaction is what any normal person could feel driven to. But it should not be allowed to work if it only works when coupled with "I was drunk" or " I was a nut case" "he was gay".

The traditional common sense of the law penalises or rejects defences that would be offered by too many people, and be too hard to disprove – as I’ve mentioned before,  the rejection of ‘ignorance of the law’ as a defence is a simple example.

More importantly the courts should balance the incentives to drag out such problematic excuses. Part of the answer is simple. It should not be cost free.

It should be an extremely expensive excuse – to be risked only when any normal person might have reacted similarly. The cost of raising it should be a massive increase in sentence, because of the extra hurt it causes those left behind, and the clear admission it so often makes, of lack of remorse.

The remedies to these grotesque abuses of process are in the hands of the judges.


  • Peter
  • July 21st, 2009
  • 7:41 pm

Stephen , What is it that justifies the headline regarding homosexual advance?

I had not heard of this in the Weatherston case, hence I see no reason to create such a linkage through a headline.


For some reason, in recent years, the “homosexual advance” claim has been by far the most successful of provocation defences put to courts.

Homophobic juries?

  • Julian Smith
  • July 22nd, 2009
  • 1:24 pm

A murderous reaction to provocation is never excusable. Ever. Claiming that an unwanted sexual advance of any kind made you lose the capability to form the required intent for murder is bizarre. And our society should simply not accept that kind of rubbish. The easiest way to do that is to amend the Crimes Act. While I would like to think that you could leave it to juries who are tasked with making judgment calls of this type, it turns out that you can’t. A jury recently accepted that it was excusable to kill a man who made a sexual advance by beating him with a banjo and then ramming it down his throat. Juries used to even acquit violent parents who beat their kids with belt buckles. Insane.

  • Orange Roughy
  • July 23rd, 2009
  • 12:31 am

At present only the flimsiest evidence is needed to raise the partial defence of provocation. I agree with Stephen that it should be costly to raise it, but my preference is that is should be abolished.

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