There can be no doubt that support for gay rights is continuing to build in Australia, yet criminal law in a number of state jurisdictions lags behind.
It is hard to believe that in the second decade of the 21st century, in South Australia, New South Wales and Queensland, the ‘gay panic defence’ (or ‘homosexual advancement test’) can still mitigate murder to manslaughter in instances of unwanted, non-violent ‘homosexual advance’.
This partial common law defence to murder was established in 1997 in the controversial case of Green, where a man stabbed his friend to death with a pair of scissors after an unwanted (non-violent) sexual approach. Green was initially sentenced to murder, but later appealed on the basis that his friend, Gillies, had provoked the violence.
At appeal, Justice Smart stated that Gillies’s behaviour represented “provocation of a very grave kind” and would cause “some ordinary men [to] feel great revulsion.” The High Court ordered a re-trial and Green was later convicted of manslaughter, on the basis that an ‘ordinary’ man in his position would have reacted in this way.
The judgment reflects the belief that an ordinary heterosexual man would be so affronted by a ‘homosexual advance’ that he has licence to lose self-control and kill. It is hard to conceive of a situation where a heterosexual woman would be excused for murdering a heterosexual man on the basis of an unwanted non-violent sexual advance.
In reality, the law is reflecting the notion that homophobia is intrinsic to heterosexual masculinity in Australia. It is this dangerous attitude that perpetuates homophobic bullying within our nation’s schools and workplaces.
Like sexism and racism, homophobia is not ‘reasonable’ or ‘ordinary.’ Homophobia is not an idiosyncrasy that should be taken into account during the sentencing process; rather, the role of the law should be to actively discourage it. The state should never condone hate crimes.
Debate about the ‘gay panic defence’ was reignited in Queensland when Wayne Ruks was bashed to death in 2008. One of the men accused of his murder argued that he was victim of an unwanted homosexual advance.
The defence caused outrage in the community and has even drawn international attention and condemnation. A petition from international human rights organisation Change.Org has received more than 200,000 signatures.
Despite growing community concern, the new Queensland Government is refusing to amend the law. This is surprising, given the reform would be cost neutral and could present an opportunity for Premier Campbell Newman to improve his credentials on social policy.
This defence is not just in play in Queensland; in New South Wales and South Australia, ‘gay panic’ still forms part of the common law.
While other states abolished the defence a decade ago, these jurisdictions are yet to follow suit. It is encouraging to see the issue being subject to an inquiry in New South Wales, but the time has also come for South Australia to take action. That state, in particular, has a proud history when it comes to gay law reform. There is an opportunity to further advance the project by moving in this area.
Criminal law is not just about maintaining social order and cohesion; it reflects and promotes community values. Supporters of the ‘gay panic defence’ must consider whether this really represents the kind of values they want to protect.
* This piece was first published on The Drum Opinion on the 22nd of August 2012.