Submission re Queensland Criminal Law Amendment Bill 2016

Update 21 March 2017:

Tonight, Queensland Parliament has voted to – finally – abolish the homosexual advance defence (sometimes referred to as the ‘gay panic’ defence) from state law.

This move, while long overdue, is obviously welcome, removing one more piece of homophobic legislation from the Queensland statute books.

To read more about the passage of the Criminal Law Amendment Bill 2016, see tonight’s report in the Brisbane TimesGay panic laws pass Queensland Parliament, removing partial defence’.

Finally, I thank Mr Rob Molhoek, LNP member for Southport, for this ‘shout-out’ in his speech on the Bill:

“In his submission to the committee, Mr Alistair [sic] Lawrie commented that—

Even if a small minority of people remain firmly intolerant of homosexuality, that does not mean there should be a ‘special’ law to reduce the culpability of such a person where they are confronted by an unwanted homosexual sexual advance. To retain such a provision is unjust and discriminatory, and is a mark against any legal system which aspires to fairness.

I agree with that statement made by Mr Lawrie. I firmly believe that discrimination of any type, be it based on sexuality, age, gender or any other matter, has no place in our laws. That is why I support this proposed legislation.”

Update 22 February 2017:

The Report by the Queensland Legal Affairs and Community Safety Committee into the Criminal Law Amendment Bill 2016 was handed down yesterday. For a copy of the report, click here.

Pleasingly, the Committee’s main recommendation is that the Bill – which would finally abolish the homosexual advance defence or ‘gay panic defence’ in Queensland – should be passed.

The discussion of the abolition of this partial defence to murder, from pages 4 to 18, features a number of references to my own submission (which can be found in the post below).

This includes consideration of my concerns (and the concerns of others) about the drafting of and definitions for both ‘circumstances of an exceptional character’ and ‘unwanted sexual advance’.

I welcome the Committee’s interest in these issues, as well as their agreement to my own recommendation that the operation of the law as amended should be reviewed after 5 years to ensure it has functioned as intended (on page 18: “The committee agrees that the proposals in Clause 10 of the Bill should be reviewed in five years to establish whether they have operated as intended”).

For more on how this committee inquiry has been received, see The Brisbane Times article ‘Gay panic law reform bill should be passed, committee recommends’. 

Whether the Bill is passed is now up to Queensland Parliament, including the crossbenchers who hold the balance of power. Hopefully they agree to consign the homosexual advance defence to the history books as quickly as possible.

Original post:

The Palaszczuk Labor Government has proposed legislation that would, among other things, finally abolish the ‘homosexual advance defence’, or ‘gay panic’ defence, under Queensland law.

Its Criminal Law Amendment Bill 2016 is currently the subject of an inquiry by the Legal Affairs and Community Safety Committee. Full details of the Inquiry can be found here – my submission to the inquiry is included below.

The Committee is due to report by 21 February 2017. Hopefully, the homosexual advance defence is consigned to the history books shortly thereafter.

**********

The Research Director

Legal Affairs and Community Safety Committee

Parliament House

Brisbane QLD 4000

lacsc@parliament.qld.gov.au

Monday 16 January 2017

Dear Committee,

Submission re Criminal Law Amendment Bill 2016

Thank you for the opportunity to provide a submission regarding the Criminal Law Amendment Bill 2016.

In this submission I will be focusing exclusively on the proposed amendments to section 304 of the Queensland Criminal Code, as contained in clause 10 of the Bill.

Overall, I welcome these proposed amendments, given the stated intention of the Queensland Government that they will give effect to their election commitment to repeal the homosexual advance defence, or ‘gay panic’ defence.

As noted by Attorney-General the Hon Yvette D’Ath in her second reading speech:

“The amendment to section 304 provides that the partial defence is excluded if the sudden provocation is based on an unwanted sexual advance, other than in circumstances of an exceptional character. I know that there has developed a reference to this amendment as removing the ‘gay panic’ defence – that is, a situation where the defendant claims to have been provoked to murder by a homosexual advance by the deceased. I absolutely acknowledge this amendment’s importance to the lesbian, gay, bisexual, trans and intersex community – as it is to all Queenslanders who have voiced their criticism that such an advance could establish the partial defence.”

Indeed, the abolition of this defence, in the two Australian jurisdictions where it remains in place (Queensland and South Australia) is a priority for the LGBTI community nation-wide.

That is because the idea that a lesser level of criminal punishment – manslaughter rather than murder – should apply where a man kills another man because of an unwanted sexual advance is, to put it simply, abhorrent.

This point was made eloquently by Justice Kirby in his dissent in the High Court’s decision in Green v The Queen [1997] HCA 50:

“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.”

The truly offensive nature of the homosexual advance defence is revealed by asking why it invariably applies to non-violent sexual advances by a man to another man. As Kirby asks, rhetorically, if a non-violent sexual advance from one man to another was sufficient to justify forming the intention to kill or seriously wound, why should this not also apply to a non-violent sexual advance by a man to a woman? Further, why shouldn’t a woman who receives an unwanted non-violent sexual advance from another woman have access to the partial defence of provocation? Why doesn’t it also apply to a man who receives an unwanted non-violent sexual advance from a woman?

The answer is that in all of these cases society justifiably expects the recipient of the unwanted sexual advance to exercise self-control. A violent response to an unwanted non-violent sexual advance, to the extent that the recipient forms the intention to kill or seriously wound, is so beyond the pale, or so far out of the ordinary, that we do not extend any reduction in culpability to the offender in these circumstances.

In my opinion, there is nothing so different, so special or so extraordinary, in the situation where the non-violent sexual advance is made by a man to another man, as to justify offering the offender in such cases any extra legal protection. In contemporary Australia, a man who receives an unwanted sexual advance should exercise the same level of self-control as we expect of any other person.

To have a separate legal standard apply to these cases is homophobic because it implies there is something so objectionable about a non-violent sexual advance by a man to another man that a violent reaction is almost to be expected, and at least somewhat excused. This does not reflect the reality of contemporary Australia, where, with the exception of marriage, gay men enjoy (most of) the same rights as other men, and are accepted as equals by the majority of society.

Even if a small minority of people remain firmly intolerant of homosexuality, that does not mean there should be a ‘special’ law to reduce the culpability of such a person where they are confronted by an unwanted homosexual sexual advance. To retain such a provision is unjust and discriminatory, and is a mark against any legal system which aspires to fairness.

The above discussion outlines why the homosexual advance defence is wrong in principle. What should not be forgotten is that the homosexual advance defence is also wrong in practice, or in the outcomes which it generates. After all, the defence does not simply exist in the statute books, ignored and unused. Instead, it has been argued in a number of different criminal cases, sometimes successfully.

This means there are real offenders who are in prison (or who have already been released), who have had their conviction reduced from murder to manslaughter, and most likely their sentence reduced along with it, simply because they killed in response to an non-violent homosexual advance. The legal system has operated to reduce the liability of these offenders even when broader society does not accept that such a reduction is justified. As a result, these offenders have not been adequately punished, meaning that above all these victims have not received justice.

Similarly, the family members and friends of the victims killed in such circumstances have witnessed the trials of these offenders, expecting justice to be served, only to find that the killer is not considered a murderer under the law. Instead, these family members and friends find some level of blame is placed on the actions of the victim, that somehow by engaging in a non-violent sexual advance they have helped to cause and even partly deserved their own death.

For all of these reasons, I strongly support the abolition of the homosexual advance defence, or ‘gay panic’ defence, in any jurisdiction where it remains.

Therefore, I commend the Queensland Palaszczuk Labor Government for its commitment to remove this abhorrent law from the statute books via the Criminal Law Amendment Bill 2016.

It does so through the inclusion of clause 10, which would amend section 304 of the Queensland Criminal Code, the provision that establishes the partial defence to murder of provocation.

Specifically, I welcome the proposed insertion of new sub-section 304(3A):

“Further, sub-section (1) does not apply, other than in circumstances of an exceptional character, if the sudden provocation is based on an unwanted sexual advance to the person.”

Prima facie, the inclusion of this new sub-section substantively removes the partial defence of provocation for circumstances where the ‘provoking conduct’ was an unwanted, non-violent sexual advance.

In principle, then, the homosexual advance defence, or ‘gay panic’ defence, would be abolished in Queensland by the passage of this Bill.

However, I do have two concerns about the drafting of the amendments to section 304, and their potential operation.

First, by including the phrase ‘other than in circumstances of an exceptional character’, I am concerned that this leaves the door slightly ajar to at least some cases where the homosexual advance defence may be sought to be used.

I note that, for the purposes of new sub-section 3A, there is no restriction on what might constitute ‘circumstances of an exceptional character’ (with proposed new sub-section 6A merely providing that regard may be had to any history of violence, or of sexual conduct, between the offender and the victim).

This leaves room for judicial interpretation, and the possibility, albeit remote, that the homosexual advance defence may still be successfully raised.

For this reason, I suggest that the operation of the reforms to 304 be reviewed after a period of five years, to assess whether these amendments have operated as intended.

Recommendation 1: The operation of the proposed reforms to section 304 should be reviewed after five years, to assess how they have operated in practice, including how the term ‘circumstances of an exceptional character’ has been applied in cases where a defendant has sought to invoke what would be described as the homosexual advance defence.

The second concern I have about the proposed amendments is the inclusion of the definition of ‘unwanted sexual advance’ in new sub-section 9:

“In this section-

unwanted sexual advance, to a person, means a sexual advance that-

(a) is unwanted by the person; and

(b) if the sexual advance involves touching the person – involves only minor touching.

Examples of what may be minor touching depending on all the relevant circumstances-

patting, pinching, grabbing or brushing against the person, even if the touching is an offence against section 352(1)(a) or another provision of this Code or another Act.”

The attempt to provide clarity of what forms an unwanted sexual advance, as a means to prevent the successful use of the homosexual advance defence, is clearly welcome.

The reference to section 352(1)(a) is also useful because, as the Attorney-General noted in her second reading speech “the spectrum of conduct that falls within the offence of sexual assault is very broad”, and this should not automatically result in an increased ability of a murderer to seek to have their charge downgraded.

However, the creation of a definition of unwanted sexual advance creates the risk, and arguably the incentive, for the perpetrator of these types of offences to exaggerate the ‘touching’ that was involved in the unwanted sexual advance that preceded the murder.

Given the nature of these cases, there will necessarily be no ability for the victim to provide any evidence disputing this exaggeration.

It would obviously be disappointing if, in attempting to remove the homosexual advance defence, the Government introduces a provision that instead allows its continued use, in certain circumstances, with the defendant induced to increase their claims about the unwanted sexual advance by the deceased.

It is difficult to see how this particular risk can be completely excluded – other than by adopting the approach of some other states and territories (including Victoria, Western Australia and Tasmania) to abolish the partial defence of provocation entirely.

As with the definition of ‘circumstances of an exceptional character’ above, I suggest that the operation of these provisions generally, and the definition of ‘unwanted sexual advance’ specifically, be reviewed after five years, to determine whether there have been any unintended or unforeseen consequences of these amendments.

If there have been, then at that point it may be appropriate to consider abolishing the partial defence of provocation altogether, and replacing it with specific defences or partial defences for a limited range of scenarios (for example, in the context of family violence).

Recommendation 2: The operation of the proposed reforms to section 304 should be reviewed after five years, to assess how they have operated in practice, including how the definition of ‘unwanted sexual advance’ has been applied, and whether it has simply induced defendants to exaggerate their claims about the unwanted sexual advance by the deceased.

Thank you again for the opportunity to provide this submission regarding the Criminal Law Amendment Bill 2016, and specifically about clause 10, a provision that is intended to finally abolish the homosexual advance defence, or ‘gay panic’ defence, in Queensland.

As indicated above, I welcome these reforms in principle. The above two recommendations are offered in order to help ensure that the intention of the Bill is reflected in practice.

I can be contacted at the details provided with this submission, should the Committee have any questions about this submission, or require any additional information about the matters raised.

Sincerely

Alastair Lawrie

Yvette D'Ath

Queensland Attorney-General Yvette D’Ath, who introduced the Criminal Law Amendment Bill on 30 November last year.

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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/

Submission on Crimes Amendment (Provocation) Bill 2013 re Homosexual Advance (or ‘Gay Panic’) Defence

I am writing to make a submission on the Exposure Draft Crimes Amendment (Provocation) Bill 2013, as released by the Attorney-General, the Hon Greg Smith MP, on 17 October 2013.

First, I would like to commend the Attorney-General, and the O’Farrell Government more broadly, for developing a Bill which, if passed, would finally abolish the homosexual advance (or ‘gay panic’) defence.

The homosexual advance defence has long been a stain on the fabric of our criminal justice system, resulting in the ‘downgrading’ of convictions from murder to manslaughter where it is not justified, and in doing so implying that the victim was in some way at fault, even to a small extent that they ‘deserved’ what happened to them.

Sadly, this has not been an abstract injustice, restricted to the statute books, but a defence that has been used, successfully, in multiple criminal trials over the past 20 years. This means that there is every chance that it could be used again, unless and until this Bill is passed.

Which brings me to my first recommendation: The Crimes Amendment (Provocation) Bill 2013 should be passed as soon as possible. This will help ensure that no future victim is disrespected by the fact their murderer escapes with a lesser conviction, and probable reduced sentence, simply because that murderer had a homophobic reaction to the victim’s non-violent sexual advance.

If, for whatever reason, the NSW Government is unable to progress this legislation with the urgency that it requires then, as a fall-back, I suggest that it consider amending clause 2 of the Bill to ensure that the Act has retrospective application.

Specifically, if the legislation is not passed by the end of the first sittings in 2014 (on Thursday March 27th), consideration should be given to back-dating the legislation to take effect from the date the Government formally confirmed its intention to introduce these reforms through the release of this Exposure Draft (ie on 17 October 2013).

I acknowledge that this would be a drastic step for any Parliament to take. No-one should casually amend the criminal law in such a way, especially where the offence involved carries significant penalties, without a compelling justification.

But I sincerely believe that a case for doing so could be made in these circumstances: that the injustice of our legal system effectively saying that a killing is less offensive, less contrary to community standards, less worthy of punishment than other killings, simply because the non-violent sexual advance involved was from one man to another, is so great that the question of retrospective application at least merits further debate.

Despite this, my overall preference would be for the Bill to be passed without including such provisions, and that this happen in the shortest possible timeframe, making retrospectivity less of a pressing concern.

My second recommendation deals with another potential issue which would remain unresolved even if the Exposure Draft Bill was passed, and that is: The new Crimes Act section 23, introduced by the Crimes Amendment (Provocation) Bill 2013, should specify that the ordinary person is not homophobic.

The Exposure Draft Bill includes multiple safeguards to help ensure that a non-violent sexual advance, whether same-sex or heterosexual, cannot be used as the basis of the partial defence of extreme provocation.

Specifically, proposed new sub-section 23(2)(b) requires that the conduct of the deceased was a “serious indictable offence”, which would clearly not include a non-violent sexual advance. Even more categorically, sub-section 23(3)(a) ensures that the partial defence cannot be raised in circumstances where “the conduct was only a non-violent sexual advance to the accused.” I strongly support the inclusion of both provisions.

However, in the event of a contested murder prosecution, there can be doubt about the boundary between what constitutes a non-violent sexual advance and a violent sexual advance. This doubt can, and often will, be exploited by a defendant, especially because the victim is not available to provide their version of events. It would be a potentially perverse, although perhaps unavoidable, consequence of the Government’s reforms that it would introduce an even greater incentive for a defendant to establish that the victim’s sexual advance was itself violent.

If the defendant is successful in establishing that the victim’s sexual advance was indeed violent (or that there is at least some evidence to support this: see proposed sub-section 23(7)), then proposed sub-section 23(2)(d) becomes relevant, and it maintains the existing ‘ordinary person’ test to assess whether the loss of self-control is accepted as the basis of this partial defence.

It is possible that, given hardening community attitudes against rape, any violent sexual advance, irrespective of the sexes or genders of the people involved, would now satisfy the ‘ordinary person’ test in terms of partially excusing that loss of self-control. If that is the case, then there would be no unjustified discrimination on the basis of sexual orientation, and the law would not require further amendment.

However, it is also possible that a male defendant could claim a violent sexual advance from another man is more egregious or offensive, and therefore more worthy of the application of the partial defence, than a violent sexual advance in other circumstances (eg a violent sexual advance from a woman to a man).

Based on the existing case-law (including Green v The Queen 1997), there is a possibility that this argument would be accepted – the consequence of which being that, once again, the killing of someone who makes a same-sex sexual advance would be treated as less serious than the killing of someone who makes a heterosexual sexual advance in the same circumstances (the only difference being that both would now be violent).

Given the significant step forward overall which would be achieved by the passage of this Bill, I do not wish to see it undermined by the ongoing possibility of such homophobic discrimination, which is why I propose that new section 23 include a provision that, at least for the purposes of this partial defence, the ordinary person is not homophobic, bi-phobic, trans-phobic or prejudiced towards intersex people (specifically, the ordinary person does not discriminate on the basis of sexual orientation, gender identity or intersex status).

As with  the suggestion about retrospectivity, discussed earlier, this would be an unusual step for a Parliament to take, and leaves open for consideration a range of other factors which may or may not need to be prescribed (for example, that the ordinary person is not racist or sexist). I make no comment here about those or other factors (other than noting that, whatever list may be deemed necessary include, it should be inclusive rather than exhaustive).

Nevertheless, given we are fully aware that the law has allowed homophobic discrimination within the partial defence of provocation in the past, I believe we should be actively considering how to prevent further such discrimination in the future within the new partial defence of extreme provocation. Even if the section itself is not amended, alternatives could include either or both the explanatory memorandum and second reading speech noting that it is not the Parliament’s intention that the new partial defence should operate in a homophobic manner.

Leaving aside these two recommendations, it is my firm belief that the passage of the Crimes Amendment (Provocation) Bill 2013 would be a significant, and long-overdue, achievement. This is something that the lesbian, gay, bisexual, transgender and intersex (LGBTI) community has been campaigning on for many years: it is my sincere hope that the homosexual advance (or gay panic’’) defence will finally be consigned to the dustbin of history in the very near future.

Submission on Homosexual Advance Defence

The following is a submission which I am lodging today with the NSW Legislative Council Provocation Committee which is inquiring into the Partial Defence of Provocation. It is an opportunity to make the argument that the homosexual advance defence, or ‘gay panic’ defence, should be repealed because it is unjust and discriminatory. The Committee has extended the deadline to Friday 24 August 2012 so I would encourage anyone interested to make a similar submission.

NB On Tuesday 23 2013, the Committee handed down its final report. In it, all members of the Committee, including the Chair, Mr Fred Nile, recommended that non-violent sexual offences should not be the basis of a provocation defence. Which means in practice, that all members have recommended that the Homosexual Advance Defence be abolished. This is obviously a great result – it is now up to the Premier, the Hon Barry O’Farrell MP, to implement this reform, as quickly as possible. The full report can be found here: http://www.parliament.nsw.gov.au/Prod/parlment/committee.nsf/0/61173C421853420ACA257B5500838B2E?open&refnavid=CO4_1

Submission to the Legislative Council Provocation Committee Inquiry into the Partial Defence of Provocation

This submission will focus on one aspect of the operation of the partial defence of provocation – the so-called homosexual advance (or ‘gay panic’) defence.

In particular, it will argue that the law of provocation should be reformed by either amending s.23 of the Crimes Act 1900 to ensure that non-violent sexual advances cannot be considered as an act which induces provocation, or by repealing s.23 in its entirety to remove the partial defence of provocation altogether.

This is necessary to ensure that never again can a person who commits homicide have their offence downgraded, from murder to manslaughter, with a consequent reduction in maximum sentence, simply on the basis of a non-violent sexual advance.

As noted in the Committee’s briefing paper for this inquiry, the statutory basis of the partial defence of provocation lies in s.23 of the Crimes Act. In particular, sub-sections (1) and (2) provide that:

(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.

(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:

(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and

(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased,

It is difficult to comprehend how these sub-sections have ever operated to mitigate the responsibility of an offender who kills another person in response to a non-violent sexual advance. It is almost impossible to understand how it could still be the case in 2012.

The ultimate fault for this sorry state of affairs lies with the majority of High Court justices in Green v The Queen [1997] HCA 50. With all due respect to Chief Justice Brennan, Justice Toohey and Justice McHugh, they incorrectly applied the ordinary person element in sub-section (2)(b) to mitigate the responsibility of the offender. As has been made clear in repeated criticisms of this decision, the ‘ordinary person’ in contemporary Australia is not so homophobic that their response to a non-violent homosexual advance is to form the intent to kill that person or to wish to inflict grievous bodily harm upon them.

This point was of course made eloquently by Justice Kirby in his dissent:

“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.”

The truly offensive nature of the homosexual advance defence is revealed by asking why it invariably applies only to non-violent sexual advances by a man to another man? As Kirby asks, rhetorically, if a non-violent sexual advance from one man to another was sufficient to justify forming the intention to kill or seriously wound, why should this not also apply to a non-violent sexual advance by a man to a woman? Further, why shouldn’t a woman who receives an unwanted non-violent sexual advance from another woman have access to the partial defence of provocation? Why doesn’t it also apply to a man who receives an unwanted non-violent sexual advance from a woman? Or, in my case, as a gay man, why can’t I access the partial defence of provocation if I receive an unwanted sexual advance from another man?

The answer is that in all of these cases society justifiably expects the recipient of the unwanted sexual advance to exercise self-control. A violent response to an unwanted non-violent sexual advance, to the extent that the recipient forms the intention to kill or seriously wound, is so beyond the pale, or so far out of the ‘ordinary’, that we do not extend any reduction in culpability to the offender in these circumstances.

In my opinion, there is nothing so different, so special or so extraordinary, in the situation where the non-violent sexual advance is made by a man to another man, as to justify offering the offender in such cases any extra legal protection. In contemporary Australia, a man who receives an unwanted sexual advance should exercise the same level of self-control as we expect of any other person.

To have a separate legal standard apply to these cases is homophobic because it implies there is something so abhorrent about a non-violent sexual advance by a man to another man that a violent reaction is almost to be expected, and at least somewhat excused. This does not reflect the reality of contemporary Australia, where, with the exception of marriage, gay men enjoy the same rights as other men, and are accepted as equals by the majority of society.

Even if a small minority of people remain firmly intolerant of homosexuality, that does not mean there should be a ‘special’ law to reduce the culpability of such a person where they are confronted by an unwanted homosexual sexual advance. To retain such a provision is unjust and discriminatory, and is a mark against any legal system which aspires to fairness.

The above discussion outlines why the homosexual advance defence is wrong in principle. What should not be forgotten is that the homosexual advance defence is also wrong in practice, or in the outcomes which it generates. After all, the defence does not simply exist in the statute books, ignored and unused. Instead, it has been argued in a number of different criminal cases, sometimes successfully.

This means there are real offenders who are in prison (or who have already been released), who have had their conviction reduced from murder to manslaughter, and most likely their sentence reduced along with it, simply because they killed in response to an non-violent homosexual advance. The legal system has operated to reduce the liability of these offenders even when broader society does not accept that such a reduction is justified. As a result, these offenders have not been adequately punished, meaning that above all these victims have not received justice.

Similarly, the family members and friends of the victims killed in such circumstances have witnessed the trials of these offenders, expecting justice to be served, only to find that the killer is not considered a murderer under the law. Instead, these family members and friends find some level of blame is placed on the actions of the victim, that somehow by engaging in a non-violent sexual advance they have helped to cause and even partly deserved their own death.

The saddest part of preparing this submission was in reading the Committee’s briefing paper and learning that, not only have at least 11 men been killed in these circumstances in NSW, but also that 11 families were so profoundly let down by the justice system between January 1990 and September 2004. It is highly likely that the defence has been used more times since then, dishonouring more victims and causing additional pain to more families already dealing with the loss of a loved one.

I wrote earlier that it is the fault of the High Court, in Green v The Queen, that the homosexual advance defence remains a part of the criminal law. Where the courts get it wrong, as they clearly have in this area, it is the responsibility of the parliament to remedy the error and thereby ensure the justice system operates in a fair and non-discriminatory manner.

There are two options for the NSW Parliament to abolish the homosexual advance defence.

The first would be to amend s.23 of the Crimes Act 1900 by inserting a section which would exclude non-violent homosexual advances from forming the basis of provocation. This was the course of action recommended by the Homosexual Advance Defence Working Group in 1998, and appears to have been adopted in the ACT and NT.

The second option would be repeal s.23 in its entirety and abolish the partial defence of provocation altogether, as has been done by Tasmania, Victoria and Western Australia.

As I have concentrated solely on the homosexual advance defence and not on the impact of such a change on cases involving family violence and other instances where the partial defence of provocation may be applied, I am not in a position to recommend which of these options should be adopted in the broader context (for example, if s.23 is repealed entirely, it may be necessary to incorporate a new provision for ‘defensive homicide’, as the Victorian Parliament did in 2008).

Nevertheless, I believe it is clear the NSW Parliament should adopt one of these courses of action to ensure that no more killers are able to rely on the homosexual advance defence to reduce their conviction from murder to manslaughter. The homosexual advance defence is unjust, it is discriminatory and it should be made history.

Recommendation

The NSW Parliament should either:

a)      Amend s.23 of the Crimes Act 1900 by inserting a section which would exclude non-violent homosexual advances from forming the basis of provocation; or

b)      Repeal s.23 of the Crimes Act, thereby removing the partial defence of provocation entirely.

Alastair Lawrie

10 August 2012