'Lindsay v The Queen: Homicide and the Ordinary Person at the Juncture of Race and Sexuality' by Kent Blore in (2018) 39
Adelaide Law Review 161 comments
Recently, in Lindsay v The Queen, the High Court reaffirmed a place in Australian law for the ‘homosexual advance defence’. The case involved the killing of a white man by an Aboriginal man for offering to pay for sex, exposing a number of problems with provocation and the ordinary person test at the intersection of race and sexuality. This article first unpacks the Court’s reasoning to reveal a hidden assumption that the ordinary person is from the outset white and violently homophobic. The article then sketches a history of these incidents of ordinariness — tracing normalised whiteness and homophobia to the colonial era — in order to address the future of the ordinary person and the options for its reform. Unravelling conflicting Indigenous and queer law reform agendas, the article ultimately concludes that provocation in South Australia should be abolished or reformed to exclude the homosexual advance defence. However, because racism and homophobia can manifest in murder trials despite legal change, a broader cultural shift must accompany the reform of provocation. The lessons of history from the frontier can help to show other ways of being ordinary, allowing a pathway for ordinariness itself to be coloured and queered.
Blore argues
In the early hours one morning in 2011, in a suburb south of Adelaide, an Aboriginal man killed a white man for offering to pay for sex. At his trial two years later, the accused sought to rely on the partial defence of provocation which operates
to reduce what would otherwise be murder to manslaughter. The objective limb of the test of provocation centres on what an ‘ordinary person’ would do. The Full Court of the South Australian Supreme Court framed the case as one about sexuality, leading it to conclude that a non-violent homosexual advance, without more, can never provoke a lethal response from the ordinary person. On appeal, the High Court emphasised the racial dimension of the case and found that the ordinary person — inscribed with the Aboriginality of the accused — is capable of losing self-control and forming an intention to kill when confronted with a gay proposition. This article traces these conflicting narratives of race and sexuality to two revelations about the nature of the ordinary person. That the ordinary person must be placed in the shoes of an Aboriginal person reveals that the ordinary person is always already white. That the ordinary person is liable to kill in defence of their heterosexual honour reveals that the ordinary person is violently homophobic.
By reference to deep-seated ideas about what is normal or ordinary, the ordinary person test draws upon societal norms with long histories, such as norms about gender. Indeed, the ordinary person test arose in Victorian England in tandem with particular norms about gender and violence in that era, which it continues to draw upon and enforce. This article proposes that the ordinariness of being white and violently homophobic has a similar cultural lineage. When the ordinary person test was first crafted in England in 1837, the Frontier Wars were being waged at the edges of colonial authority across Australia. The following year was marred by the Myall Creek Massacre, which stands out as emblematic of the brutal divide between colonists and Indigenous peoples, between ‘us’ and ‘them’. Around the same time, the Molesworth Committee reported to the House of Commons in 1838 that the transport of convicts had led to rampant homosexuality in the Australian colonies.4 Ordinary Australians suffer a collective amnesia about the Frontier Wars and the Molesworth Committee’s findings, but the collective shame reverberates today in received ideas of ordinariness.
However, as a construct, the ordinary person is not predetermined by historical forces and can be changed. Options for reform include: eliminating the ordinary person test from provocation, adopting an ordinary Aboriginal person test, removing the homosexual advance defence from the ambit of provocation, and abolishing provocation altogether. This article argues that by one means or another, South Australia must address the homosexual advance defence. Yet each of these options for reform carries the risk of unintended consequences, such as contributing, even if marginally, to the over-representation of Indigenous people in prison. Reform may even fail to achieve the desired outcome of dispelling racist and homophobic narratives from the courtroom. The reason for this is that the ordinariness of being white and violently homophobic can manifest in spite of legal change. Therefore, law reform must be
accompanied by a wider cultural change. The ordinary must be queered.
Queer theory provides a useful lens through which to explore the limits of ordinariness. Broadly, queer theory sees established sexuality and gender norms — and by extension all norms — as social constructs which have been made, and which, therefore, can be unmade. On this account, there is nothing immutable about being white, a man, or a heterosexual, and this revelation of mutability offers a way to undermine their self-evident ordinariness. However, queer theory’s obsession with destabilising norms has given it a reputation for being anti-normative. The problem is that blameworthiness for killing — and the ordinary person test designed to capture that blameworthiness — is by definition normative. The need for a broader cultural shift to solve the problems posed by the ordinary person thus raises interesting questions for queer politics, not least of which is whether queer theory’s disdain for normativity lies so at odds with notions of the ordinary, that it is a theoretical impossibility to attempt to queer the ordinary. Drawing upon a branch of queer thought that places the queer inside the norm, this article argues that there is an avenue available for queering and colouring the ordinary from within. To do this, we must normalise the potential for the other in the ordinary. One way to draw out the potential for other ways of being is by recourse to history, by remembering forgotten perspectives from the ‘other’ side of the frontier and by remembering the homosexual potential of mateship on the frontier.
