Up Front by Emma Hart

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Up Front: A Kink in the Pants

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  • Emma Hart,

    Don't read if you want to remain upbeat and relatively sane today.

    "Mr Kaye [the defendant's lawyer] said if the actions were involuntary then the charge was manslaughter - not murder."

    I honest to god thought someone was giving me the wind when I first read about this case, and it was an Onion story or something. A homophobic killing with a banjo? Srsly?

    Christchurch • Since Nov 2006 • 4651 posts Report Reply

  • Craig Ranapia,

    I honest to god thought someone was giving me the wind when I first read about this case, and it was an Onion story or something. A homophobic killing with a banjo? Srsly?

    Yeah, I checked the masthead on the O'Herald website to make sure someone wasn't getting their April Fool freak on prematurely. Hey, you don't need literacy, numeracy or a functional bullshit detector to work there -- why should I expect anyone to be able to read a calendar?

    Craig, the amusing feminist corrolary to the gay panic defence is that if it was allowed for women who'd been hit on by men, the streets would be littered with the bodies of straight men.

    I work on the theory that the libido is God's way of keeping our absurdity front and center, but that's taking it too far. I find "please remove your hand from my crotch, it seems to be upsetting your boyfriend" does the trick.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • FletcherB,

    t I have some very broad issues with how sexuality is used in the legal system. The homosexual panic defence law suggests one way of getting lawyers out of that bind, by simply saying 'you cannot argue this'.

    I understand and share you concerns with how sexuality (real or suggested) is used like this, but there is a fundamental difference between the "gay panic" defence and other forms of trampling on the victim....

    The Gay panic defence is an "I did it, but I'm not guilty of murder" defence. Like insanity or self defence... you are not denying it was your own actions that lead to death, you are denying that it is murder. It's the "not murder because the victim was gay" that makes this so completely repugnant.

    Removing the ability to claim its not murder because XYZ is way different and far less wide-ranging than saying you are not allowed to suggest particular alternatives to you being the perpetrator.

    West Auckland • Since Nov 2006 • 893 posts Report Reply

  • Russell Brown,

    Coming late to this, but I think a salient point here is that Comesky's star profile does not necessarily make him a good defence lawyer.

    He badly let down Millie Elder when he sought a discharge on her drug charges:

    Elder pleaded guilty to possession of methamphetamine or P and drug utensils and allowing her Auckland flat to be used for drugs last year. Her lawyer Chris Comesky told the judge a drug conviction would ruin her plans to visit her biological father in Greece and hinder her career.

    "She is also interested in a career in the tour boat industry," Comeskey said. "All of that is based out of the United States and Canada." But the judge said there was no evidence that that was true.

    "There is no evidence before me of the direct consequences of convictions," said Judge Anne Kiernan. "Such as inability to travel to another country, effect on employment or inability to pursue a chosen career."

    So he asked for a discharge on the grounds that convictions would unduly affect her future -- but didn't offer any evidence that that would be the case, and was duly smacked down by the judge. That's just basic stuff.

    Auckland • Since Nov 2006 • 22849 posts Report Reply

  • Kyle Matthews,

    From that Herald story:

    Ambach's defence lawyer, Peter Kaye, said the jury would hear evidence of the spiking of drinks with drugs.

    Drugs that involuntarily cause you to bash and stab someone with a banjo? Don't sound very useful for date rape.

    Since Nov 2006 • 6243 posts Report Reply

  • Hilary Stace,

    The standard ethical principles of beneficence, respect and justice aren't that hard to follow, surely? The ethical principles of the Treaty of Waitangi - partnership, participation and protection - provide a pretty good guide too.

    Wgtn • Since Jun 2008 • 3227 posts Report Reply

  • Emma Hart,

    The Gay panic defence is an "I did it, but I'm not guilty of murder" defence. Like insanity or self defence... you are not denying it was your own actions that lead to death, you are denying that it is murder.

    Indeed. And that's how Graham Coutts used the kink defence in the Jane Longhurst case.

    The Liu An An case is different - and I see the use of sex in the Bain trial as different again, because it seems pretty clear that the source of the incest rumours was Laniet, not David or his lawyer. The question in common I guess is how relevant it was. What bugs me about the Liu An An case was how manufactured the kink defence was, how unsubstantiated. It was like saying 'it wasn't me, it was that invisible purple elephant my wife had been seeing behind my back', only much more insulting. So perhaps we are confounding a few too many different things here.

    Christchurch • Since Nov 2006 • 4651 posts Report Reply

  • Craig Ranapia,

    So he asked for a discharge on the grounds that convictions would unduly affect her future -- but didn't offer any evidence that that would be the case, and was duly smacked down by the judge. That's just basic stuff.

    And I don't mean to sound like a classist jerk here, but that line of defence has always bugged me because it seems to disproportionately benefit nice middle-class (and dare I say it, white) law and commerce students. Funny that.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Graeme Edgeler,

    the amusing feminist corrolary to the gay panic defence is that if it was allowed for women who'd been hit on by men, the streets would be littered with the bodies of straight men.

    There are good arguments that the defence of provocation should go, but I'm pretty sure it's not limited to situations where a gay person is the victim.

    that line of defence has always bugged me because it seems to disproportionately benefit nice middle-class (and dare I say it, white) law and commerce students. Funny that.

    And All Blacks and other professional (or aspiring) sports people...

    I'd also note that the Sentencing Act basically requires lesser sentences for those with strong family support.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Eddie Clark,

    And I don't mean to sound like a classist jerk here, but that line of defence has always bugged me because it seems to disproportionately benefit nice middle-class (and dare I say it, white) law and commerce students. Funny that.

    Yes, because they're all assholes who deserve it. Lol, this will cause your blood to boil, Craig, but that line is getting close to I/S's "national's bourgeois rich prick mates" territory. Astonishingly, I've managed 2 law degrees and 5 years of practice without a) being arrested and b) without running that defence.

    I actually ususally see the line used most often with young people who're good at sport, because god forbid someone who's pleaded guilty to assault should be prevented from going to the Canada on rugby trips.

    Wellington • Since Nov 2006 • 273 posts Report Reply

  • Craig Ranapia,

    And All Blacks and other professional (or aspiring) sports people...

    Quite right, Graeme. Though I suspect there are parts of the world that would welcome an experienced plumber (with a relatively minor drug conviction back in the day) ahead of a rugby player. God knows I would...

    There are good arguments that the defence of provocation should go, but I'm pretty sure it's not limited to situations where a gay person is the victim.

    It certainly doesn't, but I still have my doubts that I'd walk on a heterosexual panic defence in this, or any other lifetime.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Craig Ranapia,

    Yes, because they're all assholes who deserve it. Lol, this will cause your blood to boil, Craig, but that line is getting close to I/S's "national's bourgeois rich prick mates" territory.

    Ouch... now that hurts because its true. :) But I think there are perfectly legitimate questions to be asked about whether discharges without conviction are being applied dispassionately, or whether there's levels of bias involved. Just as, I think it would be fair to say, that when it comes to the death penalty in the United States there are serious gender, class and racial disparities. I don't think its entirely facetious to say that if you're going to commit a capital crime you're least likely to end up on Death Row if you're a white, Protestant upper middle-class woman with children.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Kyle Matthews,

    But I think there are perfectly legitimate questions to be asked about whether discharges without conviction are being applied dispassionately, or whether there's levels of bias involved.

    See also the diversion scheme.

    There's several doors out of the (container) prison for us middle class white folks.

    Since Nov 2006 • 6243 posts Report Reply

  • Steve Parks,

    The spelling of Comesk(e)y's name is inconsistent. Even in reports:

    Her lawyer Chris Comesky told the judge a drug conviction would ruin her plans to visit her biological father in Greece and hinder her career.

    "She is also interested in a career in the tour boat industry," Comeskey said.

    Anyone know the correct spelling?

    Wellington • Since May 2007 • 1165 posts Report Reply

  • Steve Parks,

    Then there's the Louise Nicholas case. The defendants' convictions were inadmissible, which I'm fine with. But the complainant's entire sexual history was fair game. How is this in any way just? If their previous behaviour isn't relevant to the incidents under question, then surely neither is hers.

    Especially when, IIRC, her previous court history was also used to try and show she wasn't trustworthy. Meanwhile, the defendants' previous court history showed some of them guilty of rape.

    Someone suggested to me in that case they thought the judge should have been able to apply what I think is referred to as an "opening the door" approach. He or she could have told the defense that some of their line in attacking the character of Nicholas would be ruled inadmissible, unless they in turn waived the inadmissibility of the defendants previous encounters with the legal system.

    Wellington • Since May 2007 • 1165 posts Report Reply

  • Josh Addison,

    We don't do Diminished Capacity in New Zealand, do we? I was introduced to the concept and its mutant cousin, Irresistible Impulse, a little while ago. My mind remains boggled to this day.

    Onehunga, Auckland • Since Nov 2006 • 298 posts Report Reply

  • Emma Hart,

    Steve, I tried quite hard to verify that I was spelling Comeskey's name correctly. I'm pretty sure it's right, though it returns hits for all kinds of variations. In the course of that search I found this, which I wasn't aware of, and a whole lot of scarily vitriolic comments.

    Christchurch • Since Nov 2006 • 4651 posts Report Reply

  • ScottY,

    I don't know what rules of evidence were used in the Nicholas case (a new Evidence Act was passed in 2006), but the new law is supposed to make it easier to use prior convictions (under section 49(1)).

    Whether it does is another matter, because there is still section 43(1), which states:

    The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

    You'd think a prior conviction for rape might have had significant probative value in the Nicholas case.

    Still, I'm not a criminal lawyer, and I don't have all the details of the case and how/why the evidential issues were decided.

    I've mentioned before that the rules are designed to protect defendants. Not victims (or if I was a defence lawyer I'd say "alleged victims").

    West • Since Feb 2009 • 794 posts Report Reply

  • Graeme Edgeler,

    I tried quite hard to verify that I was spelling Comeskey's name correctly. I'm pretty sure it's right, though it returns hits for all kinds of variations.

    Well, according to the Law Society Register of Lawyers (direct link to result not possible) a Mr Christopher Patrick Comeskey is an Auckland barrister.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Rich Lock,

    People (including in this thread) make rather lame jokes about lawyers' ethics.

    Well, I do work in the legal profession, albeit not as one of those fancy-speakin', high-falutin' big-city lawyer types, and as such I am bound by exactly the same ethical code as you.

    So if I can't make lame-arse jokes at my own expense, who can I make them at?

    back in the mother countr… • Since Feb 2007 • 2728 posts Report Reply

  • Eddie Clark,

    So if I can't make lame-arse jokes at my own expense, who can I make them at?

    Well that's quite right. Unfortunately, tongue in cheek does not translate well to internet text interaction (well I can't spot it, anyway).

    Wellington • Since Nov 2006 • 273 posts Report Reply

  • ScottY,

    So if I can't make lame-arse jokes at my own expense, who can I make them at?

    The taxpayer's expense, dummie! Always the taxpayer's.

    I'm surprised an inveterate pinko socialist like you even needs to ask.

    West • Since Feb 2009 • 794 posts Report Reply

  • Rich Lock,

    I'm surprised an inveterate pinko socialist like you even needs to ask.

    How very dare you!

    I have a spine, thankyou very much.

    back in the mother countr… • Since Feb 2007 • 2728 posts Report Reply

  • B Jones,

    Looks like we're up for another round of victim-blaming/provocation:

    Weatherston pleads guilty to manslaughter

    Wellington • Since Nov 2006 • 976 posts Report Reply

  • Emma Hart,

    Cripes.

    She said if they had contributed anything about the case to any internet blog sites, they should also stand aside.

    It meant they would not be able to bring independence and objectivity to the case.

    Christchurch • Since Nov 2006 • 4651 posts Report Reply

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