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Concerns 'gay provocation' law still being used 'by stealth' in New Zealand

An archaic law used to justify violent murders of gay men is the subject of a new play debuting this week during Pride Festival.

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The defence of provocation has been struck from our law books for more than a decade now, but some believe it is still being used by stealth. Source: 1 NEWS

The defense of provocation has been struck from New Zealand's law books for more than a decade now, but some believe it's still being used by stealth.

"For provocation to be successful, you had to be deemed as deviant and predatory and just kind of prey on the homophobia of the jury," playwright Aroha Awarau told 1 NEWS.

A decade ago, a raft of cases used provocation as a defense. It meant that defendants could be found guilty of a lesser charge.

It's been used in cases where gay men were brutally killed.

"A lot of the murders, the gay men were always effeminate and the killers were always masculine, so on the cusp of their sexualities, so it was easy to convince a jury that this masculinity was threatened," Mr Awarau says.

Director Jennifer Ward-Lealand says the law was "terribly sad".

"[It implied] that you asked for it in some way, that your behaviour asked for a violent response in some way," she told 1 NEWS.

In 2009, Clayton Weatherston claimed he was provoked into stabbing his girlfriend Sophie Elliot multiple times. 

The outrage this caused eventually saw the law abolished.  

"Even though you can't even use it as a defense now, I think people still get tarnished with it," Ms Ward-Lealand says.

"The two men who this play is sort of based on, and their stories, their reputations would've been destroyed.

"I think it is used by stealth a bit now because even in the Grace Millane case, you know, her character was assassinated in the courtroom."

The old law may have been struck off, but it's certainly not forgotten.

"It still exists because homophobia exists and as long as homophobia exists, there's always going to be a danger that provocation will always be around," Mr Awarau says.