HomoPanic

In a small and belated step the Qld Attorney-General Paul Lucas has announced that the State Government "is set to change" the Qld Criminal Code to "remove doubts about how and when a partial defence involving a sexual advance can be used and remove doubts about the so-called “gay panic” defence". Set but hardly in a rush, given the promise that the "Government would introduce a Bill to Parliament this year" ... presumably after the impending election, an election that many pollsters predict will result in the ALP's loss of office.

The Criminal Code currently provides for a partial defence of provocation that could be used to reduce a conviction from murder to manslaughter where a defendant claimed they were provoked into killing someone. The Attorney General somewhat disingenously comments that

members of the community had recently raised concerns that this could be used to establish a so-called “gay-panic defence”, where defendant claimed the victim made a homosexual advance towards them and provoked them into committing the act.

That advance need not be violent, involve any physical contact or be made by someone whose physical strength, age or other attribute gives them an advantage.

Criticisms of a 'homopanic defence' have been voiced for many years, including in Queensland Law Reform Commission recommendations [PDF] and in works such as 'Hatred, murder & male honour: Gay homicides and the "homosexual panic defence"' by Stephen Tomsen in 6(2) Criminology Australia (1994) 2, 'More Folk Provoke their Own Demise (Homophobic Violence and Sexed Excuses - Rejoining the Provocation Law Debate, Courtesy of the Homosexual Advance Defence)' by Adrian Howe in 19 Sydney Law Review (1997) 336 and the 1998 Final Report [doc] by the NSW Working Party on the Homosexual Advance Defence. Concerns regarding the defence include suspicions that no advance was made in particular instances and law should signal to male adults that a wink, caress or invitation does not justify homicide ... if you are a bloke who isn't interested, just say no rather than kicking someone to death. One writer highlighted the gendered nature of the defence with the quip that "if every woman killed every man who made unwanted physical advances to them there would be a lot of dead men around".

Kirby J in Green v R [1997] HCA 50; (1997) 191 CLR 334; (1997) 148 ALR 659; (1997) 72 ALJR 19 commented that -

For the law to accept that a non-violent sexual advance, without more, by a man to a man could induce in an ordinary person such a reduction of self-control as to occasion the formation of an intent to kill, or to cause grievous bodily harm, would sit ill with contemporary legal, educative, and policing efforts designed to remove such violent responses from society, grounded as they are in irrational hatred and fear.

In my view, the 'ordinary person' in Australian society today is not so homophobic as to respond to a non-violent sexual advance by a homosexual person as to form an intent to kill or to inflict grievous bodily harm. He or she might, depending on the circumstances, be embarrassed; treat it at first as a bad joke; be hurt; insulted. He or she might react with the strong language of protest; might use such physical force as was necessary to effect an escape; and where absolutely necessary assault the persistent perpetrator to secure escape. But the notion that the ordinary 22 year old male (the age of the accused) in Australia today would so lose his self-control as to form an intent to kill or grievously to injure the deceased because of a non-violent sexual advance by a homosexual person is unconvincing. It should not be accepted by this Court as an objective standard applicable in contemporary Australia.

Last week Lucas received a recommendation from a special committee established in November 2011. He has now commented that -

We made it crystal clear from day one that the Queensland Government does not believe that anyone should be able to use a claim of non-violent homosexual advance to reduce a conviction from murder to manslaughter.

That’s why we listened to the expert advice of the Queensland Law Reform Commission in 2008 and ensured strengthened legislation was passed so words alone could not amount to a partial defence.

However, I received a number of representations from the gay community last year and consequently set up an expert committee comprised of key stakeholders to examine the laws.

The committee has completed its review and based on the recommendations of legal expert and retired Court of Appeal Judge John Jerrard, we will be amending to law to ensure the intent of the partial defence provisions are clear.

Section 304 is to be amended to ensure that an unwanted sexual advance will not be enough to establish provocation unless there are exceptional circumstances (eg "where a battered woman who knows that refusal of a sexual advance from her partner is a precursor to assault and she takes immediate action to stop this from happening”).