No 12 The End (Almost) of the Homosexual Advance Defence in NSW

One of the more pleasing aspects of law reform in NSW over the past 12 months has been signs of progress – at last – on the subject of the homosexual advance (or “gay panic”) defence.

The Legislative Council Select Committee on the Partial Defence of Provocation, chaired by Mr Fred Nile, handed down its long-awaited report on 23 April. (http://www.parliament.nsw.gov.au/Prod/Parlment/committee.nsf/0/61173c421853420aca257b5500838b2e/$FILE/Partial%20defence%20of%20provocation_Final%20report.pdf)

The Committee explicitly and unanimously recommended that the homosexual advance defence should be repealed. Recommendation 6 of their Report reads: “[t]hat the NSW Government introduce an amendment to section 23 of the Crimes Act 1900 to ensure that the partial defence [of provocation] is not available to defendants who… respond to a non-violent sexual advance by the victim.”

One month later, on May 22, Premier Barry O’Farrell confirmed that the NSW Government would indeed act to ensure that the partial defence of provocation, which if successful reduces a murder conviction to manslaughter, does not apply in circumstances where there is only a non-violent sexual advance. (http://www.news.com.au/national/breaking-news/provocation-laws-to-be-changed-in-nsw/story-e6frfku9-1226648578317)

In October, the Government tabled its response to the Committee. It accepted the policy intention of the Committee’s Report, and included an Exposure Draft Crimes Amendment (Provocation) Bill 2013 for public consultation. (http://www.parliament.nsw.gov.au/Prod/Parlment/committee.nsf/0/61173c421853420aca257b5500838b2e/$FILE/Partial%20defence%20of%20provocation%20-%20Govt%20response.pdf)

As part of that Exposure Draft Bill, which reframes the partial defence of provocation to a partial defence of extreme provocation, it is proposed that the new section 23 would include a clause providing that “[c]onduct of the deceased does not constitute extreme provocation if… the conduct was only a non-violent sexual advance to the accused.”

In short, if this Bill is introduced into and passed by the NSW Parliament then the stain of the homosexual advance (or ‘gay panic’) defence will finally be removed from the law books of NSW for good. And the signs continue to be encouraging – just this week, Premier O’Farrell told 2GB radio that it was the Government’s intention that the Bill will be “hopefully through the Parliament by the end of February” (audio starting at 6mins40seconds: http://www.2gb.com/audioplayer/25171#.Uqf1xyct2RM).

Which would be not a moment too soon. Because this is not some historical artefact, gathering dust somewhere, sitting neglected on a shelf. The homosexual advance defence has been used, and used regularly, over the last 20 years. When successful, it dishonours the victim of a brutal killing, implying that he was at least partly at fault, all for simply making a non-violent pass at someone else.

It is somewhat ironic that one of the most eloquent rebuttals of the homosexual advance defence comes from the very same case in which the High Court of Australia upheld its validity. In Green v The Queen [1997] HCA 50, then Justice Michael Kirby dissented, writing:

“If every woman who was the subject of a “gentle”, “non-aggressive” although persistent sexual advance… could respond with brutal violence rising to an intention to kill or inflict grievous bodily harm on the male importuning her, and then claim provocation after a homicide, the law of provocation would be sorely tested and undesirably extended… Any unwanted sexual advance, heterosexual or homosexual, can be offensive. It may intrude on sexual integrity in an objectionable way. But this Court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill or inflict grievous bodily harm. Such a message unacceptably condones sexual violence by people who take the law into their own hands.”

At the core of this partial defence lies unbridled homophobia, an irrational fear, and stereotyping, of gay men as “predators”, lurking and waiting for any opportunity to pounce on any unsuspecting “normal” heterosexual men. And it tells these “normal” men that they are entitled to use lethal force to repel any type of unwanted, non-violent sexual advance, that it is, at least in part, justified to somehow help defend their “honour”.

It is a law that has always been unjust. It seems that Members of the NSW Parliament have at last recognised that fact. To that I say, better late than never. But never forget the victims whose murderers have escaped the full convictions, and punishments, that they deserved, solely because the victim made a non-violent sexual advance to them.

Assuming that the Crimes Amendment (Provocation) Bill is passed early next year, I am sure that the actual repeal of the homosexual advance defence would feature highly on any list of the highs and lows of 2014. Til then, it is up to us to make one final push to ensure this abhorrent piece of law is finally abolished, once and for all.

Related posts:

My 2012 submission to the Select Committee Inquiry: https://alastairlawrie.net/2012/08/10/submission-on-homosexual-advance-defence/

My 2013 Submission on the Exposure Draft Crimes Amendment (Provocation) Bill 2013: https://alastairlawrie.net/2013/11/14/submission-on-crimes-amendment-provocation-bill-2013-re-homosexual-advance-or-gay-panic-defence/

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