Playwright Aroha Awarau never forgot the physical and emotional pain of being attacked because he is gay. David Herkt finds how he channelled the experience into a play that pulls apart the insidious Provocation Defence.
Two dead gay men roam and patrol a narrow floor space marked with grey duct tape.
"What song did they play at your funeral?" asks one.
The other gives him a look of complete disgust.
"I don't remember," he answers shortly.
The first man bursts into a bar or two of Wind Beneath my Wings in a campy falsetto. His companion regards him with even more withering contempt – if that is possible.
Focusing intently on the performance is Jennifer Ward-Lealand, a nominee for the 2020 New Zealander of the Year. Along with roles in television series like Shortland Street, movies like Desperate Remedies and plays including the recent Mrs Warren's Profession, she has also directed several successful theatre productions.
Aroha Awarau is beside her. He wrote Provocation, the play being rehearsed. While he has been recognised as an award-winning entertainment journalist, Awarau is one of New Zealand's more successful new dramatists.
The crisply paced 2014 comedy-drama, Luncheon, was his first production. Unusually for a theatre piece written by a New Zealander, it was set in Los Angeles in 1958, at a lunch party on the eve of the Academy Awards. Its characters included well-known movie-stars of the time, like Elsa Lanchester – with Ward-Lealand in the role. The male lead played a youthful Aaron Spelling, the future TV mogul.
But in this Mount Eden rehearsal space, late on a Thursday morning, it's a different world.
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"If we were as young as our killers," protests Paul Barrett, who plays Bryan, his script in hand, "we would have put up a good fight ... If it wasn't for my bad hip, I would have. It was an unfair advantage."
Max, acted by stage and movie veteran Hori Ahipene, glowers at him.
Ahipene's existence is a staunch fact in the rehearsal room. Just as Barrett commands his corner with velvet glove of campy wit, Ahipene anchors his space with an unavoidable presence. The play's tension fills the air. Its subject is taken from the crime headlines of the last decade – from David McNee and Ron Brown to Sophie Elliott – and everyone knows it. Then the very recent Grace Millane trial, where a dead young woman's sexual past was investigated and ruthlessly exposed, has also had unexpected consequences for both the actors and the performance.
Was it an "accident"? Did Grace Millane provoke her own death by her preferences for certain sexual acts and her use of Internet sites to contact men? The subsequent trial and its shocking defence is also present in the room.
When is a murder not a murder?
For a long time, it was enough for one man in New Zealand to claim another man had made an unwanted homosexual sexual advance for a murder charge to be reduced by a jury to manslaughter. A defence team would simply have to outline a convincing case where a heterosexual man felt homosexually "threatened" by another man in order to justify his subsequent violence.
"The Provocation Defence was based on a set of circumstances that it would cause a reasonably sane person to lash out," says Awarau. "It was basically a defence that downgraded a murder charge to manslaughter. But in order for that defence to be successful, demonising the victim, the gay man, was essential.
"What was interesting about these cases was that the victim was usually an older gay man and the killer was someone who was much, much younger. Also, the killer was someone who was never described as gay – either he was on the cusp or had some aspect of masculinity."
Many well-known court trials hinged on this "Gay Panic" defence. When 55-year-old TV personality and designer David McNee was beaten to death in 2004 by 27-year-old Phillip Edwards, a man he'd picked up on the street, Edwards claimed he was provoked into the act by being touched – and the jury agreed with him.
In 2007, 31-year-old Ferdinand Ambach, a Hungarian tourist, also escaped a murder conviction after killing a 69-year-old Auckland pensioner, Ron Brown, by savagely assaulting him and forcing the broken neck of a banjo down his throat. Ambach's lawyer claimed that Brown might have triggered a "monstrous rage", by making a pass at Ambach, causing him to lose self-control. The jury again agreed, convicting Ambach only of manslaughter.
In both these cases, there were no witnesses to what had occurred. The jury was given the story of the only other person in the room – the killer.
Sophie Elliott's case, early in 2009, finally sparked a change. Her ex-boyfriend, Clayton Weatherston, stated that the pain of his "torrid and tumultuous" relationship with Elliott was partially responsible for his actions. He claimed to have been provoked into stabbing Elliott – 216 times. He denied murdering her but admitted manslaughter.
In this case, the jury did not agree and Weatherstone was sentenced for murder. The laws relating to the Defence of Provocation were repealed a few months later.
"The end of the Provocation Defence was caused by the Sophie Elliott case," says Awarau. "So, I was able to introduce a woman character into my play to acknowledge that aspect of it and how differently that defence was used in the sense of a young women being killed as opposed to gay men being killed."
The use of the defence, though, would only grow more insidious and perhaps more problematic. It would be "provocation by stealth". During a period of weeks in late 2019, New Zealanders witnessed a victim being depicted as someone whose actions had made her somehow complicit in her own murder.
In the Grace Millane trial, a young woman's interest in sexual acts involving erotic strangulation became a deciding factor. It was as if Grace – just like David McNee and Ron Brown – had somehow triggered her own death.
Awarau's play, Provocation, deals with the human impact and the social and legal complexities of this subject.
"Provocation is set in the Afterlife when two older gay men – who are like chalk and cheese – are trying to figure out where they are and why they are stuck together," Awarau says. "I thought how do you portray all these elements of Provocation that affected me so much when I read about them.
"There was often a murder victim who was gay and that planted the seed that the men had to be dead, because how can you portray what it was like to be the victim of a crime like this if they haven't died already?
"The only other thing they have in common, apart from being gay, is that they were both killed by handsome young men – killers who downgraded the murder charge by using the Provocation Defence.
"The dynamic between the older men is similar to the two main characters in Neil Simon's play The Odd Couple but with a very gay lens and making an important commentary on an unjust part of our past ... I also want my audience to find some kind of lighter side in the play, so I thought, well, The Odd Couple, and that's my basis for the comedy.
"The men think they have figured out what brings them together but then all their theories are thrown out of the window when a 24-year-old straight woman joins them."
There's a break in the rehearsal, with tea, coffee and chocolate biscuits. Characters are dropped. Voices change. Postures relax. Phones are checked.
"I was very keen to work with this particular creative team," Ward-Lealand says, pushing her glasses back on her nose. "I try to put myself in the mind of a discerning audience member when I direct, so I'm keen on interrogating what's underneath the lines and what's between the lines – and knowing where I want my focus to be as an audience member.
"This is a really good play for that because it is a bit like a tennis match and it needs to be really crafted … I would like people to be angry – and moved. And there are also some laughs in it too. I think that this play has all facets of human nature in it: the dark parts we might want to hide from ourselves, the things we don't want to admit about ourselves, and these characters embody all of those, all of our human frailties."
For Barrett, the multi-talented actor, singer and musical director, Provocation has revealed a part of the gay past he did not know.
"I knew my sexuality had once been illegal – being born in 1957, I was old enough to know that – but I didn't know what went on in the court rooms, I couldn't have cared less. I had no interest in legal things. Why should I know?
"I do, however, remember the David McNee case. It was the first time but it wasn't the last."
McNee's death in 2004 caused a tabloid frenzy. Not only was the victim a media personality, familiar from primetime TV, but he was wealthy and he'd picked up a homeless man in his Audi TT. The debate surrounding the verdict was intense.
The McNee trial formed part of a crucial realisation for Ahipene too, especially the controversial conviction of the killer on the lesser charge of manslaughter.
"In terms of the Provocation Defence, I had never really heard of it until David McNee because he had a public profile – and the trial was salacious," Ahipene says. "I think it caught my attention because of my being a gay man and knowing the underground nature of homosexual activity.
"I think that the Provocation Defence was a judgement by the Establishment upon people – and for want of a better word, marginalised people – on women who have been victims of domestic violence, gays, Māori, and Islanders. And it is about Establishment, the seat of power, the Moral Majority."
Provocation has raised both professional and personal issues for the actors.
"We both have been particularly interested in the conflict between the characters," says Barrett, "One is happily out, although outraged at the legal nonsense of provocation. The other is firmly in the closet, still inside a marriage and therefore everything is clandestine and he is self-loathing. That tension is so clearly written in the script … and I love that."
Ahipene admits to feeling exposed at times.
"Raw. It is bringing up emotions within me as a gay man, things that I thought I processed or have deferred – or not dealt with in order to deal with them. It has evoked some of those in me and it is scary and liberating at the same time."
For Awarau, his own emotional reactions arise directly from a violent incident when he was younger.
"It was one of the most monumental moments in my life," he says. "I had just recently moved to Auckland and I had come out. I had this new life. I had gay friends. It was very comfortable and I think that my awareness of people around me just wasn't there … I was very proud. I had long hair. I was by myself in a Newmarket pub and, basically, to cut a long story short, I shouldn't have been in that pub with the type of people who were in there. I was attacked outside.
"At first I felt shock that it had happened. And I don't know why but I felt very embarrassed. It was a hideous attack. I was in hospital for about two weeks. Then I was out of action for about six months."
Amid other injuries, Awarau's leg had been fractured in three places by a frenzied group of attackers.
"I don't remember the physical hurt. I don't know why but that doesn't bother me, it was actually what was said during the attack and after the attack, the homophobic slurs as they attacked. Things like, "Did you break a nail?" "Did you lose a handbag?" It was those things that really stuck with me afterwards.
"I didn't actually want to press charges," Awarau confesses. "I wanted to feel secure and get on with my life. But my friends called the police on my behalf. I knew there was an attitude of the police officer of, 'What were you doing by yourself, being gay and in the city?' And that attitude really came across when he asked me if I had been wearing high heels.
"Then the police said they investigated and said that there were different versions of events which didn't support my story. That was a learning curve for me. What all that taught me was the reality of being gay in this world. The reality is that there are people out there who really want to hurt you."
Just like Provocation, Awarau's plays have all been drawn from life. After the accurate Hollywood history of Luncheon, his next drama, Officer 27, was firmly based on the killing of Halatau Naitoko, a courier driver, who was accidentally caught in police cross-fire.
Awarau spoke to Naitoko's family in his search for detail and still maintains contact. Officer 27 was a play in the great tradition of playwrights using the news of the day to reveal social currents and their personal effects. Provocation is the same.
"I love theatre because of the relationship one has with the audience and what's happening on the stage - it's intimate, it's immediate and it is part of a close human connection," says Awarau. "On the stage, performers, writers, directors all work to portray the best and worst of the human condition, the joys, the pain, and the heartbreak. Provocation, I think, really does deal with eradicating homophobia and promoting love and tolerance."
Part of the Auckland Pride Festival, Provocation is at the Herald Theatre, Wednesday February 12 - Saturday, February 15.