On the provocation defence

For those outside New Zealand there has recently been a widely publicised trial on the murder of Sophie Elliot by Clayton Weatherston. I did not follow this trial, nor did I follow the high profile murder retrial a few months earlier. However it is of course difficult to avoid knowing about it with frequent items in the newspapers and on television.

Weatherston admitted to killing Elliot but went to court in an attempt to have the murder charge downgraded to manslaughter invoking the defence of provocation. This defence was not successful and Weatherston was found guilty of murder.

According to the New Zealand Herald on the defence of provocation:

The defence is covered under section 169 of the Crimes Act 1961.

The provocation defence allows for a killing that would otherwise be classed as murder to be downgraded to manslaughter if it can be proven that the person who caused the death was provoked.

The provocation must have some relation to a characteristic of the offender.

It must cause the offender to lose the power of self-control of an ordinary person and have induced the offender to kill.

I am not certain whether the defence solely applies to verbal/ written provocation, or also physical provocation. I assume both. Though physical provocation may also lead to self defence.

It is important to note that provocation does not remove all culpability, it merely reduces the blame; and also, perhaps, affects sentencing.

There has been a significant amount of controversy following the verdict because the court case allowed Weatherston to reveal a significant amount of private data concerning Elliot. Complaints along the lines of continuing to persecute the family, insult Elliot from the grave, etc.

2 well written responses have been made by Glenn Peoples and Madeleine Flannagan. I just wish to make a variety of comments.

1. Murder is a horrible situation. It is horrible when it happens, it is horrible being reminded of it, it is horrible going through court, it is horrible on the anniversary of the victim's death. In a broken world we have horror and while we can try and minimise it, it cannot be removed. Decisions about justice must be made on the principles of justice and mercy, not on the basis of preventing bad feelings. Else the law will become unjust and cause more, and even worse horror.

2. The provocation defence was not successful in this instance. Thus the law worked correctly. It is questionable that people consider changing the law based on a wrong case outcome, but to change it after a correct conviction?

3. Evil people do evil. They try and misuse the law to their advantage, they lie, they murder. Law changes do not affect evil men, they disregard them anyway. Removing this defence will not prevent evil people being evil, but it will damage those less evil. It will prevent legitimate provocation from being taken into account. It will also mean that criminals will falsely use other defences such as self defence and insanity to get reduced sentences or acquittal.

4. Culpability is not a dichotomous variable. People have partial blame. To disallow the discussion of events around a crime denies that there are considerations that need to be taken into account and can prevent justice being fully accomplished.

5. Much of this debate would be a non-issue if we did not allow the courts to be treated as entertainment. It is true that open courts have their benefits. Perhaps family court should be more open for example. But allowing anyone to attend a court case is a far cry from broadcasting audio or video. People may have a genuine interest in a case, but most people watching from their living rooms would not put in the effort to attend court daily and listen to the arguments. Allowing media into courts means that the case is effectively served up as entertainment, and it allows the media to sway public opinion by what they show and what they leave out.

I think that the courts should probably be open, but disallow the videoing and recording of cases, save what the courts wish to do for their own purposes. Reporting of cases should be forbidden until after the event. I even wonder whether defendants should be routinely given name suppression, as much as practical, with maintenance of this in cases that are successfully defended.

If this had been in place, then many of the things said by Weatherston about Elliot would have not be known by the public.

That being said, as the situation played out, most of New Zealand hold Weatherston in contempt, and probably more so than had the events not been played out in the media.

The adulterous woman and capital punishment

Blair asks how Jesus' acquittal of the adulterous woman affects the Christian view on capital punishment.

In John 8:3,5 the leaders of the Jewish people (the experts in law and religious authorities) challenge Jesus as to what to do with a woman caught in adultery. They directly refer, Jesus, to the law of Moses which states such a person should receive the death penalty. While she has not committed murder she, according to Mosaic law is deserving none the less of the death penalty.

It is clear from the passage that they are not motivated by any sense of the holiness of God, obedience to the law or justice. Rather, their desire is to trap Jesus over a legal question to discredit him (verse 6).

In response, he does not contradict them on their point of law. Instead he issues a challenge to their understanding and application of the law. A challenge that is intended to expose their hearts: before Christ the only one who can administer the punishment they have called for is one who is without sin. Jesus isn't making this point to a group of individuals who are self appointed but to the Jewish leaders (verse 3): those in authority who could 'legally' stone her. It appears to me that in Christ's mind only those who were without sin could administer such a penalty (verse 7).

If the only ones who could administer such a penalty were those without sin - where then does this leave us if, as Christians, we advocate for the death penalty? Surely in the same position as those that Jesus spoke to in (verse 7).

In my mind it is clear from the passage, that as one who never sinned, Jesus considered himself the only one justifiably (from a legal, moral, ethical & spiritual sense) able to administer the death penalty, but in this situation he chose not to. Instead he asked her where her accusers were (after his challenge to her accusers), forgave her and in doing so 'raised' her from the dead (for without his intervention she was as good as dead) while commanding her to go and sin no more. (He met her as her redeemer for her sin, saving her from the death penalty. In choosing to exercise grace and mercy and not judgment or condemnation (verses 10–11) he set her free and restored her to be able to fully partake in society again as one forgiven and restored). This is evident from his question with regards to her accusers and in his command to go and sin no more.

Understanding Jesus' approach to the Mosaic Law is important as it gives us greater understanding in the ways of God. Jesus frequently exposed the inadequate views of Jews of his day. He gave deeper perspectives on what the Law meant and he corrected inappropriate weighting of the Law, that is he showed them what was most important. As an example of the former Jesus taught that hating people in one's heart contravenes the command not to murder (Matthew 5:21); as an example of the latter Jesus taught that tithing while proper (for the Jews) was less important than justice, mercy, and faithfulness (Matthew 23:23).

Therefore I am interested in Christian apologetics against the death penalty. I must say however that I have not read any that I find convincing.

There are several reasons why I don't think this passage contradicts my perspective on capital punishment.

1. Is this passage really part of John's gospel?
2. I am defending capital punishment for murder
3. Mercy does not negate the permissibility of the death penalty, or even the necessity of it
4. The Jews were not able to administer capital punishment in this situation
5. The question was to give the scribes and Pharisees a charge against Jesus
6. Jesus was a servant during the first advent
7. Jesus did not address the question of capital punishment

I will address each of these in turn and then what I think Jesus words to the accusers and the accused imply.

Is this passage really part of John's gospel?
There is considerable debate over the legitimacy of this passage. It is not found in the oldest manuscripts, it is found in Luke in some manuscripts. The ESV Study Bible states

There is considerable doubt that this story is part of John's original Gospel, for it is absent from all of the oldest manuscripts. But there is nothing in it unworthy of sound doctrine. It seems best to view the story as something that probably happened during Jesus' ministry but that was not originally part of what John wrote in his Gospel. Therefore it should not be considered as part of Scripture and should not be used as the basis for building any point of doctrine unless confirmed in Scripture.

I do not intend to address this debate here. I am prepared to interact with this passage and I am happy that this event is possibly true—it has similarities to the question about paying taxes to Caesar—but I do think the caveat is worth keeping in the back of one's mind.

I am defending capital punishment for murder
In my post I specify that my defence is restricted to murder. I am prepared to extend this to related crimes such as treason and espionage.

I made this restriction as the reason for execution of murderers is not the same as the reason for other crimes. The Israelites were to execute men who drew their neighbours away to worship foreign gods (Deuteronomy 13:5; 18:20). While this is appropriate for the ancient Israelites because of God's redemptive plan, I don't think God intends for Christians to kill every infidel in the current age.

Thus even if Jesus does qualify the punishment for adultery within the Mosaic Law (I am not certain he does), this may not affect the appropriate punishment for murder in Gentile nations.

Mercy does not negate the permissibility of the death penalty, or even the necessity of it
There are 2 related questions concerning this (or any) punishment.

1. Is this punishment acceptable?
2. Is this punishment required?

If a punishment is: acceptable but not required, then not having such a punishment within the justice system is a possible scenario. In the case of theft, one country may prescribe a fine, another a jail term.

But even if a punishment is required, there are times when we may not give a full punishment. Offering mercy is allowed within a legal framework. One should not show favouritism. Note that when a man knows he deserves a punishment he is more receptive to mercy.

The Jews were not able to administer capital punishment in this situation
The Jew's were not legally allowed to execute criminals under Roman occupation. When the Sanhedrin brought Jesus before Pilate he said

"What accusation do you bring against this man?" They answered him, "If this man were not doing evil, we would not have delivered him over to you." Pilate said to them, "Take him yourselves and judge him by your own law." The Jews said to him, "It is not lawful for us to put anyone to death."

This means that no Jews were permitted to carry out the death sentence under Roman occupation (at least without their permission).

The question was to give the scribes and Pharisees a charge against Jesus
Because the Jews were unable to execute people under Roman law the question was to try and catch Jesus. It is similar to the situation when they asked him if it was lawful to pay taxes or not. The Jews were not interested in understanding Jesus' interpretation of the Law, they were trying to place him in a catch-22 position.

Jesus was a servant during the first advent
Jesus is God. He is the judge of the world. And we are fully at his mercy. John the Baptist recognised he greatness as did many others.

Jesus was sent on a mission to earth 2000 years ago. That mission was as a servant to men. That is partially why many did not recognise him as a Messiah as they were looking for a king. Now Jesus is in and of himself a king. He set up a kingdom. And he will return as king and judge. But this was not his role during the first advent. So while he is judge by right, Jesus the man denied his role as (an earthly) judge at that time. He submitted himself to the authority structures when appropriate during his earthly sojourn. Where Jesus did act in "judgment" over situations, it was as an eternal judge, not temporal; e.g. "Your sins are forgiven you."

Jesus did not address the question of capital punishment
Jesus' words in this situation do not specifically say whether or not capital punishment is appropriate for this or any crime. And I am uncertain if he did elsewhere. However he noted that all men must face judgment and we need to be ready when we die, whether justly or unjustly.

So what of Jesus' response to the accusers and the woman?
Jesus response to the accusers did not exactly deal with the issue of the appropriate punishment for adulterers. It dealt with the hearts of the accusers. And this is frequently Jesus' modus operandi. People come to Jesus with a question about justice, or requesting a judgment and Jesus speaks to that person's heart. When the man asked Jesus to intervene so an inheritance was divided fairly Jesus spoke to the man's covetness (Luke 12:13). Jesus was not necessarily saying the other brother had done the right thing, Jesus was using the man's plea to focus him on things eternal. Note also in this example that Jesus refuted that he was an appropriate judge in the specific scenario.

Therefore I am not certain that the statement

Let him who is without sin among you be the first to throw a stone at her.

says anything about the appropriate punishment for adultery. Jesus is speaking to the hearts of the men bringing the accusation.

Jesus response to the woman was clearly redemptive.

Jesus stood up and said to her, "Woman, where are they? Has no one condemned you?" She said, "No one, Lord." And Jesus said, "Neither do I condemn you; go, and from now on sin no more." (John 8)

God does not want people to be condemned, Jesus came to redeem them. John 3 says

For God did not send his Son into the world to condemn the world, but in order that the world might be saved through him.

So Jesus does not condemn this woman yet still exhorts her to leave her life of sin.

Still, the focus on redemption leading to life could hint at the possibility that allows an alternative to the death penalty, compare Ezekiel 18, and note also item 6 above.

Conclusion
The several reasons above show why I think this particular passage does not obliterate capital punishment for murder; and I am not even certain the Jesus is suggesting that capital punishment is inappropriate for adultery (in a Jewish context).

I will add that Paul thought that death remained an appropriate punishment from the state in certain situations. Paul said,

If then I am a wrongdoer and have committed anything for which I deserve to die, I do not seek to escape death. (Acts 25)

Crime in the United Kingdom

The Telegraph states that crime in the United Kingdom is high and climbing,

The UK had a greater number of murders in 2007 than any other EU country – 927 – and at a relative rate higher than most western European neighbours, including France, Germany, Italy and Spain.

...A breakdown of the statistics, which were compiled into league tables by the Conservatives, revealed that violent crime in the UK had increased from 652,974 offences in 1998 to more than 1.15 million crimes in 2007.

It means there are over 2,000 crimes recorded per 100,000 population in the UK, making it the most violent place in Europe.

Austria is second, with a rate of 1,677 per 100,000 people, followed by Sweden, Belgium, Finland and Holland.

By comparison, America has an estimated rate of 466 violent crimes per 100,000 population.

France recorded 324,765 violent crimes in 2007 – a 67 per cent increase in the past decade – at a rate of 504 per 100,000 population.

Comparing statistics from different sources or countries can be difficult as mentioned in the article. Murder figures are more useful comparators as they are less likely to be coded differently.

Nevertheless it seems as if crime is very high in the UK. London has the most closed circuit television (CCTV) in the world. CCTV is on the rise here and probably elsewhere. We can now all be filmed multiple times per day with the claim that it prevents and helps catch crime, but clearly it isn't working.

Does the death penalty prevent reconciliation with God?

Now on to jc_freak's objections.

Now in the case of the death penalty, rehabilitation clearly does not apply.

I don't see why not in principle. Convince him that he should not murder again.

I think that Christians should no longer support retributive capital punishment. I agree with you that we cannot expect worldly governments to live by Christian principals. Indeed, I agree with you that it may not be wise for Governments to act like churches at all, since, to some degree, governments need to interact with worldly people (war comes to mind as something that Christians should avoid, but governments need to often pursue).

I think God has expectations for governments and that they are best to govern according to God's desires. They will be judged on how they governed. The government is not the church. God has requirements for the church and requirements for government. They need not be the same. The church perhaps should not pursue war, but that doesn't necessarily mean that members of the church cannot fight in war.

But I think that Christians need to avoid supporting the death penalty because of our call to evangelize. We, as Christians, need to remember that when the government kills a convicted murderer, there is a very good chance that that person is going to Hell. This is not something we should pursue, but something that we should be actively avoiding. The longer we can keep those men alive, the more opportunities we have to reach them.... I also understand the principal that the threat of death may cause a criminal to seek salvation, but this also assumes a Christian justice system that actively works to teach criminals the gospel. This we do not have, so the concept doesn't really apply.

But we can still evangelise. The state is required to do her role and the church is required to do hers. I don't think the justice system has to be overtly Christian (though it should be godly) and teach the gospel; I think the church should evangelise within the jails.

But to your main point which is the key to this discussion. Now I agree that we should not pursue men going to hell, but I take issue with your assumption that the longer men are kept alive the more opportunities we have to reach them. This sounds somewhat reasonable but is it true? C.S. Lewis asked the question whether a man condemned to death in 30 days is any less likely to seek God than the man incarcerated for 30 years. And I think Lewis has a valid point. People need to face their own mortality. A murderer who has been caught and knows he is to die in a month is forced to face his mortality. He is forced to look thru to eternity. He is likely to ask if there will be any reckoning for his actions. Whereas the man who gets incarcerated for the rest of his life does not necessarily have these issues placed in such stark contrast. He may adapt to life in prison and continue to live a life avoiding God. I am not convinced that a longer duration of life, even if it gives more potential opportunities to witness, makes a man more likely to respond to the gospel. I wonder if facing a short life may be as or more effective in the path to repentance.

There are a couple of other issues that arose in the discussion. I said

And if a murderer murders in prison, or arranges one from prison, does the state bear some responsibility because they did not execute him. And what of the victims who are hell bound because they died before they heard the gospel

to which jc_freak responded,

Let's take the second one first. If a murderer kills an unbeliever, and that person is hell bound now, then why would that influence the way the now treat the murderer? Should we be less inclined to see that person in heaven? I dont really understand here.

That may be because you separated my comments out.

As far as the criminal killing while in prison, I did say that I support incapacitation as a reason for the death penalty, which is what you are talking about here. If a person is too dangerous to keep alive, then it is understandable to kill him.

Murderers have murdered in prison and they have arranged contract killings from within prison. The point here is that by not executing the murderer after the first crime (so that they may respond to the gospel) we have allowed him to be in a position to murder a second time and the victim of the second murder may not have heard the gospel.

Lastly,

My issue is that not whether the death penalty is present, but why it is present and how it is being used.

Bad laws and misuse of the law—yes those are very real issues, but side issues. We must establish the legitimacy (or not) of the death penalty as a punishment. Is it intrinsically allowable for the state; is it expected of the state? If it is, there may still be reasons to oppose it on pragmatic grounds. Disregard for the law and excessive numbers of innocent people being executed for example.

In defence of the death penalty

There is disagreement within Christendom over whether the death penalty is compatible with Christian theology. I am not fully certain as to which camp is correct, though I favour the conclusions below.

Here I wish to give a defence in favour of capital punishment. I will restrict my discussion to the case of murder. I will not cover pragmatic opposition such as miscarriage of justice and the fear of innocents being put to death. While these are important issues, they are issues of administration. My concern is whether execution is fundamentally an appropriate punishment.

There is Scripture in support of the death penalty in certain situations. Therefore I do not think the question is whether or not capital punishment is intrinsically wrong, God ordained it several times. The question is whether not putting people to death is preferable for reasons based on Jesus' deeper revelation of the intentions of God.

The first mention of the death penalty follows the Flood.

But you* shall not eat flesh with its life, that is, its blood. And for your* lifeblood I will require a reckoning: from every beast I will require it and from man. From his fellow man I will require a reckoning for the life of man.

"Whoever sheds the blood of man,/
by man shall his blood be shed,

for God made man in his own image...." (Genesis 9)

As mentioned previously this verse is significant in its reasoning. Men have the implanted imago Dei. We must not remove this. Only God has the right to destroy life because it is his image that is being erased.

When God gives the Law to Moses we see similar commands. The 6th commandment is, "You shall not murder" (Exodus 20, Deuteronomy 5). Others translate this as, "You shall not kill." Neither "murder" nor "kill" is fully conveys the Hebrew ratsach (רָצַח). "Kill" is too generic. "Murder" implies immoral intention, though the word can be applied to sanctioned and accidental killing. The NET Bible notes state,

The verb רָצַח (ratsakh) refers to the premeditated or accidental taking of the life of another human being; it includes any unauthorized killing (it is used for the punishment of a murderer, but that would not be included in the prohibition).

Compare Deuteronomy 19:

This is the provision for the manslayer (ratsach), who by fleeing there may save his life. If anyone kills (nakah) his neighbor unintentionally without having hated him in the past—

This prohibition clearly does not apply to those carrying out capital punishment for murder. This is seen in the specific commands given to the state and those acting for the state. The above example from Genesis specifies that the offender is to be put to death; that is, there is a command to kill in the pursuit of justice. The Mosaic Law also makes similar provision:

Whoever strikes a man so that he dies shall be put to death. But if he did not lie in wait for him, but God let him fall into his hand, then I will appoint for you a place to which he may flee. But if a man willfully attacks another to kill (harag) him by cunning, you shall take him from my altar, that he may die. (Exodus 21)

But if anyone hates his neighbor and lies in wait for him and attacks him and strikes him fatally so that he dies, and he flees into one of these cities, then the elders of his city shall send and take him from there, and hand him over to the avenger of blood, so that he may die. Your eye shall not pity him, but you shall purge the guilt of innocent blood from Israel, so that it may be well with you. (Deuteronomy 19)

The command to put someone to death is specific. It holds even if there is a general command not to kill men. Deuteronomy expands this commenting that the murderer killed an innocent man. The prohibition of killing or murdering does not apply to the murderer as he is not innocent.

So we see clear commands both in the time of Noah and of Moses that men are prohibited from killing people and the punishment for such crime is to forfeit one's life. The reason for such is:

• that the victim is innocent;
• that such behaviour offends God's holiness (note the words: "take him from my altar"); and
• that God's image in man is destroyed without God's permission.

I do not see statements from Jesus that would lead us to reconsider the above arguments. Jesus spoke to hatred. He informs us that hatred and murder come from same source within us. We cannot claim to obey the commandment not to murder if we hate. Despising men in our hearts is breaking this law. This does not necessarily imply that the degree to which we sin when hating our brother is the same as if we murdered him. Not all sins are equal. But it does state that before God non-murderers who hate have still offended God. They have still broken the essence of the 6th commandment. They are still in need of judgment by God for this.

Jesus also emphasised the need for us to forgive. Whether we are to forgive those who do not request or desire it is debated by Christians. There are examples of those who forgave unrepentant men including Jesus and Stephen. We are definitely commanded to forgive those who ask us (Matthew 18). I do not seek to resolve this question here. But even assuming the murderer is repentant and requests forgiveness, should this affect punishment?

While forgiveness is important to our own spiritual health, and forgiveness removes any right of redress when extended to a repentant man; I am not certain that this is relevant to government punishment. It would be difficult for them to let such murderer free immediately as although he has acknowledged his wrong, he may struggle to behave righteously. He may hate his anger but his struggle to control it may put the lives of others at risk in the future. So for the safety of the community he, at minimum, probably needs to be in prison.

Further, Jesus' commands seem to be predominantly aimed at the individual. The problem with the world is us and it is us that need to change. Individuals repent and enter the kingdom of God, not governments. Granted, men in government can belong to the kingdom of God and thus govern righteously, but it is still individuals who are redeemed. We are eternal, cultural structures are not. But although the state may be temporary, it still the governing authority in the current dispensation. And I do not see how the teachings for individuals change God's intention for the state.

Paul makes an interesting comment in the era of grace.

For rulers are not a terror to good conduct, but to bad. Would you have no fear of the one who is in authority? Then do what is good, and you will receive his approval, for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God’s wrath on the wrongdoer. (Romans 13)

The sword may be representative of the threat of punishment, however if the threat does not go heeded then the punishment occurs. And sword here is a metonymy for execution. Paul affirms the appropriateness of state having the power of execution. If the state is allowed to execute at all then this will apply to the most appropriate crimes. Murder being the most appropriate, save, perhaps, treason.

The earliest teachings tell us that the death penalty is to be enacted. Ezekiel suggests that refusal to execute those deserving of death is unacceptable,

You have profaned me among my people for handfuls of barley and for pieces of bread, putting to death souls who should not die and keeping alive souls who should not live, by your lying to my people, who listen to lies. (Ezekiel 13)

Since Jesus we know that capital punishment for murderers is still at least permissible. However could a judge appropriately override this punishment? Say a righteous judge who was not open to corruption, a murderer who has repented, the victim's next of kin forgiving and not desiring revenge. Perhaps the murderer has accepted Christ and the judge is Christian; both aware that Christ's death had atoned for his heinous sin.

I guess a situation like this could allow for an exemption. And because Christ takes the curse there is no curse on the land from the bloodguilt.

This assumes a (Christian) theocracy, or a general tacit approval by the governed (in a democracy) or the king (in a monarchy) of the truth of Christianity. This may describe the current situation in Rwanda. I do have difficulty applying this to all governments. It also opens up the possibility that men will claim religion to escape punishment and thus, potentially, lead to the perversion of justice.

In conclusion there is strong evidence that the death penalty for murder is an appropriate punishment, it is probably the best punishment and it may even be commanded by God. Therefore governments who disallow it are answerable to God for this. There may be situations in which men may be exempt from this punishment however this should be applied with caution. In situations where exemption is permissible, if exemption is still not granted the state is probably not sinning in its refusal.