Christchurch Women's Refuge blog - Clayton’s: The Murder You Do When You’re Not Doing Murder.

And just like the Claytons drink, there’s more froth than substance to  Clayton Weatherston’s defence. Weatherston is using a “partial defence of provocation” we are told.  That a man can premeditatively take a knife around to a women’s home, systematically stab that person 216 times; use the knife to mark and maim her eyes, her throat, her nose, a breast, her genital area, and other parts of her body and argue he did it because provoked and it was therefore manslaughter, defies the logic of reason. And I thought that reason is what should ideally be provoked in a courtroom. Thus, in effect, Weatherston declares that he butchered Sophie Elliot but it wasn’t murder.

Murder, according to my sources, legally requires either intent to kill, a state of mind called malice, or malice aforethought, which may involve an unintentional killing but with a willful disregard for life. I think that even if we generously allow the first definition not to trip Weatherston up, then the second one certainly does. The act of stabbing someone 216 times is an explicit willful disregard for that person’s life. I mean, surely he didn’t expect her to live; that her death was his objective.

To legally site provocation is, in my understanding of the law, that said provocation ”must be such as would have made the reasonable man act as the defendant did” .  Here we come back to reason. Because the reasons stated by the defendant add up to a rather paltry, niggardly, trivial lot. If I may be so bold as to paraphrase his defense, Sophie Elliot “wasn’t always very nice to him. In fact, times could be cited when she was downright nasty and aggressive”. Or so say the defense, the dead don’t demur. For me, this defense is reminiscent of age-old arguments that if a woman wore high heels and short skirt then “perhaps she asked for it”. Sophie “provokes” Clayton by knocking his glasses off his nose and so he chops hers off her face. Has it come to the point in New Zealand legal history that we women had better not be too aggressive of we might be ‘asking for it?’ ‘It’ being our own murder, or non-murder as Weatherston would have it.

My main contention is not, however, Weatherston’s defence itself per se, but rather that such a defense is permissible in court. We now have a law whereby parents cannot use the defense of ‘reasonable force’ as justification for hurting their children physically. Yet we do accept a defense of ‘partial provocation’ that allows a reason, and therefore reduced sentence, for murdering someone. Everyone has that choice to act or not. Weatherston had several choices: to not use the knife, to not bring the knife, to not go around to Elliot’s house. There may be extreme cases of provocation; I can think of one example, such as if Fritzl’s daughter had stabbed him to death to gain her and her children’s freedom. So I’m loath to be an outright advocate, as are some, to abolish the defence completely.(Click here for NZer's thoughts on the subject). But surely, if we are not going to ditch it completely the criteria could be more rigorously applied. Are people not to be held culpable because they ‘lose control’? How extreme should the victims actions be, in order to be deemed provocation? According to police statistics, one woman is killed by her partner or ex-partner every five weeks. Murder is a real and frightening danger that many women face from their partners or ex-partners, we read about it in the news all the time. Surely, except for extreme circumstance, these abusers and murderers should not be able to claim provocation under such a slim guise?

UPDATE: 22/7/09

Weatherston has been found guilty of murder today. Women's Refuge chief executive Heather Henare described the trial as a "national disgrace" , whereby Weatherston became the victim and Sophie Elliot and her family were targets of recrimination. Justice prevailed eventually in this case though and of that we can be glad. However, the process that allowed Weatherston a platform from which to defend his actions as a response to provocation, and to cast dispertions over his victims character as if she was on trial, leave a lot to be desired. This was a case of domestic violence caught in the act. We have a national campaign that says 'It's Not Ok' to use violence against another person - ever. Yet Weatherston's defence hinged on a rebuttal to that campaign, arguing that it was defenceable because of who Sophie Elliot was and what she did. If we are serious as a nation in eradicating violence from our homes, then our court processes must represent a fairer justice system for the victim.