"Homosexual Panic": A lament for David McNee

Alison Laurie has a good piece in the Herald today, discussing the murder of David McNee by Phillip Edwards in Auckland earlier this year.

It saddens me hugely that a jury of ordinary citizens would accept provocation as a defence in any case. Queer people are no more "volcanoes of desire" than straight people, in my experience - and no less, either.

What kind of legal system allows such institutionalised homophobia?

How can anyone seriously believe that provocation is a reason to justify crimes, simply because of the sexuality of the person involved?

How would people react if a woman bashed a man to death with an axe if he tried to 'digitally penetrate' her?

I somehow doubt that we'd effectively 'let them off' on a provocation defence. More likely is Alison's contention, that:

If a female sex worker were to kill a male client, we would hear a great outpouring of sympathy for the client.

The female sex worker would be demonised as an evil whore who had deprived society of an upstanding citizen, who had been tempted - by her - into an unwise sexual encounter in which he brutally lost his life.

A sad decision indeed. This legacy of hate is why young queer people kill themselves in great numbers; why schools remain unsafe; why mental health problems continue to exist.

Sure, he was a fool for going for 'rough trade' off the street, but people get things wrong. Why should a man die, just because he made a mistake? Since when is being gay a death sentence in this country?

So this, poor as it is, is a lament for David McNee, who I did not know. It is also a request. Mourn David's sad and unnecessary death, and never believe it was anything other than what it was: cold blooded murder.

Jordan

Comments

[Honest St00]

"a jury of ordinary citizens" - Well the foreman was a former vice president of a certain students association that you are a life member of, jordan :-)

[Jordan]

but Stu, I'm not a life member of anything...

[My Right]

Couldn't agree more Jordan, the guys a killer - full stop. Anyone who can beat someone to death with their bare hands deserves flogging.

[Adolf Fiinkensein]

Hello Jordan. One of those times when one hundred words are much better that ten. Well said.

[Sean]

Agree 100% - nothing I've heard justifies his actions. Here's hoping he gets the sentence he deserves - and ends up serving it this time!

[greyshade]

Jordan - I agree with you and, pretty obviously, so must at least one juror. I am not without some sympathy for that juror(s). At least they secured a conviction (which could yet carry a life sentence). A hung jury would (I assume) have put Edwards back on the street or, at best, pased the decision on to another jury which would also contain its share of homophobes.
IMHO we should lose the provocation defence. General defences of insanity or diminished responsibility still exist but are tightly defined. Provocation may be a mitigating circumstance but that should be a matter for the sentencing judge not the jury.
Had Edwards produced the knife to protect his virtue and McNee attempted to disarm him but been stabbed in the ensuing struggle then that would have been manslaughter. But that is manifestly not what happened in this case.

[span(ner in the works)]

aren't the members of juries supposed to be confidential Stu?

there is a letter from the lawyer of Edwards in the Herald this morning - law school is a fair bit of time ago for me now, but i seem to remember in Law II Criminal Law that you are also guilty of murder if you are reckless about the other person's life, ie if you act in a way that obviously runs the risk of killing someone and you intended to act in that way (it is a bit more complex than this). the lawyer seems to be stating that Edwards didn't have the intent to kill, full stop, quite ignoring the recklessness component.

i may of course have this quite wrong, as i say, it's been a long time since i stepped foot in the Davis.

[hans]

comment at: http://uroskin.blogspot.com/2004/08/ageing-rentboy-manslaughters-ageing.html

[Idiot/Savant]

Unfortunately David McNee isn't the only victim of the "homosexual panic" defence:

http://www.nzherald.co.nz/storydisplay.cfm?storyID=3585423

[Craig Ranapia]

Would you support the elimination of the provocation defence, full stop - including for women? If so, I couldn't agree more, but I doubt Professor Laurie would go that far.

[span(ner in the works)]

i wouldn't support the removal of provocation as a defence - i think there are circumstances where it applies (for men and for women).

but then i also think we should have better laws around diminished responsibility - as they stand i think they don't always do the job.

anyway, i've just written a possibly hopefully ill-informed post about the definitions of murder and provocation
http://spanblather.blogspot.com/2004/08/recklessness-and-murder.html