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:

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 serious 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.


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