[Updated 23 February 2020: A response from South Australian Attorney-General Vickie Chapman is included at the end of this article]
For those who are not aware, the ‘gay panic’ defence (sometimes referred to as the homosexual advance defence) was a partial defence to murder in Australia.
Part of the broader partial defence of provocation, the gay panic defence applied where a defendant killed another person but claimed it was because they lost control in response to an unwanted, non-violent sexual advance by the victim.
If successfully raised, the defendant would be convicted of manslaughter instead of murder, and generally a lower maximum sentence would be imposed.
If this sounds abhorrent, that’s because it was. Primarily used in circumstances where a heterosexual man killed a gay man, the gay panic defence was nothing short of legalised homophobia.
It told society that one of the most awful things that could happen to a heterosexual man was to be ‘hit on’ by a gay or bisexual man.
It told gay and bisexual men their lives were not as valuable as other members of the community.
Despite this, the gay panic defence was upheld as valid by a majority of the High Court of Australia in the infamous case of Green v The Queen  HCA 50.
The injustice of this outcome was eloquently described by Justice Michael Kirby in his dissenting judgment to that decision:
“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 serious violence by people who take the law into their own hands.”
But that was exactly the message that Kirby’s High Court colleagues chose to send. And it sent a message to state and territory parliaments around the country: the only way to end the gay panic defence was for them to amend the partial defence of provocation.
As well as a third and final message to the LGBTI community – that we needed to engage in eight separate campaigns to remove the stain of the gay panic defence from the law books.
Seven of those campaigns have been successful. As with many LGBTI law reforms, Tasmania was the first to act, abolishing the partial defence of provocation entirely (therefore including the gay panic defence) in 2003.
Victoria, Western Australia and Queensland have also chosen to abolish provocation entirely, while New South Wales, the Australian Capital Territory and Northern Territory have instead legislated that non-violent sexual advances (including same-sex advances) are not a valid defence to murder.
Queensland was the last of these jurisdictions to take action – abolishing the gay panic defence in 2017.
Unfortunately, though, that leaves one jurisdiction that has so far failed to take action. It also means that the use of the past tense, in the introduction to this article, was incorrect.
That’s because today, 2 February 2020, the gay panic defence is still a partial defence to murder in South Australia.
That seems extraordinary – the first Australia jurisdiction to decriminalise homosexuality, in 1975, is the last to reform a law that says a heterosexual man killing a gay or bisexual man who makes an unwanted, non-violent sexual advance towards him is less culpable than other killers.
Of course, LGBTI rights advocates in South Australia have long called for the repeal of the gay panic defence.
The South Australian Law Reform Institute has also recommended this change, calling for the partial defence of provocation to be abolished in April 2018.
The current Liberal Government has even agreed. On 9 April 2019, South Australian Attorney-General Vickie Chapman issued a media release titled ‘State Government moves to abolish provocation defence’, including the following comments:
The Marshall Liberal Government will introduce legislation abolishing the defence of provocation by the end of the year, after announcing today a Bill will be drafted to go out for extensive consultation…
“The fact that an outdated legal position such as this is [sic] still exists is disappointing, to say the least,” Ms Chapman said…
“Cabinet has now approved the drafting of a Bill that reflects the Marshall Government’s response to the [South Australian Law Reform] Institute’s recommendations, and ensure our laws in this area are brought up to date.”
Ms Chapman said key stakeholders – such as the Director of Public Prosecutions, the Courts Administration Authority and victims’ rights groups – would be consulted on the draft legislation, with a view to bringing a Bill before the Parliament by the end of the year.
Unfortunately, the end of 2019 came and went, but legislation ending the gay panic defence in South Australia was nowhere to be seen.
There does not appear to be any current Bill before the South Australian Parliament to end this abhorrent partial defence. Nor has there been any follow-up media release from Ms Chapman as far as I can ascertain.
Indeed, the only thing that comes up when searching for ‘gay panic’ or ‘provocation’ on the website of the Sout Australian Attorney-General’s Department is that initial April 2019 release promising reform before the end of last year.
This situation is obviously not good enough. In the third decade of the 21st century, it is simply unacceptable that the law of an Australian jurisdiction still provides that killing a gay or bisexual man who makes an unwanted, non-violent sexual advance is in any way justifiable.
It’s time for the South Australian Government to live up to its promise to end the gay panic defence once and for all. With Parliament resuming this coming Wednesday, 5 February 2020, what better time to get started.
You can write to the Premier, or Attorney-General (or both!), calling for them to implement their promise to abolish the gay panic defence as a matter of priority. Their contact details:
The Hon Steven Marshall MP
Premier of South Australia
GPO Box 2343
ADELAIDE SA 5001
The Hon Vickie Chapman
Attorney-General of South Australia
GPO Box 464
ADELAIDE SA 5001
My own email to the Attorney-General, and copied to the Premier:
Dear Ms Chapman,
I welcome your promise of 9 April 2019 to abolish the gay panic defence (media release: ‘State Government moves to abolish provocation defence’).
However, I note your commitment that this legislation would be introduced before the end of last year does not appear to have been met.
As we enter the third decade of the 21st century, there is no room in the law for this partial defence, which tells society that one of the most awful things that can happen to a heterosexual man is to be ‘hit on’ by a gay or bisexual man.
More importantly, this law tells gay and bisexual men their lives are not as valuable as other members of the community.
With South Australian Parliament resuming on Wednesday 5 February, I look forward to the Government introducing legislation to abolish the gay panic defence as a matter of urgency.
The following response was received from Attorney-General Vickie Chapman:
21 February 2020
Dear Mr Lawrie
Abolition of the ‘gay panic’ defence
I write in response to your email of 2 February 2020 to myself and the Premier, the Hon Steve Marshall MP, regarding the repeal of the so-called ‘gay panic’ defence.
I acknowledge your concerns that legislation to remove the gay panic defence is yet to be introduced in Parliament. As I have previously made clear, my views are that the gay panic defence is offensive and unacceptable, and I appreciate what the removal of this defence means to so many in the LGBTQI community.
To that end, I advise that officers in the Attorney-General’s Department are working on the Bill to make significant changes to this area of law, largely based on recommendations contained in the South Australian Law Reform Institute (SALRI) Report on The Provoking Operation of Provocation.
The defence of provocation is a complex area of sentencing law, and it is important that the legislation to remove the gay panic defence is properly considered. Accordingly, it has been necessary for me to seek expert advice regarding the abolition of the defence in murder cases as well as consider further reforms to sentencing and defences relating to family violence. The potential implications of the removal of the defence are significant and there are aspects of provocation laws that should remain in our sentencing regime, including for example, where domestic violence victims kill an abuser in self-defence.
The Bill will abolish the common law defences of provocation, necessity, duress and marital coercion and substitute statutory defences for necessity and duress. The partial defence of provocation (which has been, in some circumstances, used as a defence to unwanted same-sex advances) will be abolished.
The passage of this Bill remains a priority for the Government. It is my intention to progress the Bill to consultation in the first quarter of this year.
Thank you for your interest in this issue.
Vickie Chapman MP
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