Have you ever heard of the ‘homosexual advance defence’ or ‘gay panic defence’?
How would you respond if you are a straight person and someone of the same gender made sexual advances towards you?
There is obviously a difference between a sexual advance and sexual assault – so can a non-violent advance ever be enough to ground the defence of provocation?
During the 1990s, a number of male defendants argued that these kinds of advances provoked them into killing.
One of those cases occurred in the US, after 22-year-old Mathew Shepard was brutally beaten and killed in 1997 by men who claimed that they have went ‘mentally insane’ after Shepard allegedly made advances towards them.
The ‘gay panic defence’ was rejected in that case, and the defendants were convicted of murder.
Meanwhile in Australia, the High Court found in that same year that a non-violent homosexual advance could be enough to downgrade the charge of murder to manslaughter.
The case of Green
The ‘gay panic defence’ was upheld in the case of Green v R (1997) 191 CLR 334.
The facts of that case were as follows: Mr Green was good friends with the deceased man, Mr Gillies; both of whom resided in NSW.
One night, the two of them were drinking and watching TV together at Gillies’ place.
Gilles then made the suggestion that instead of walking to his sister’s place, Green should just stay the night.
Gillies offered Green his own bed and said he would sleep in another room. But once Green had taken off his shirt and lain on the bed, Gilles entered the room naked and got into bed with Green.
Gilles started touching Green, who pushed him away and protested. Gillies continued touching his buttocks and genitals more insistently. It was at this point that Green began hitting the defendant on the head. He then saw and grabbed a pair of scissors and then violently attacked Gillies, stabbing him several times.
When Green admitted to police that he had killed his former friend he stated that “he [Gillies] did worse to me.” He argued that the thing that caused him to ‘lose it’ was that the sexual advances reminded him of his father assaulting his sisters and beating up his mother when he was a child. He said the thoughts made him upset and angry and he ‘just snapped.’
Green won the appeal – but only just. Three of the five High Court Justices allowed his appeal, agreeing that a ‘gay advance’ may be enough to give rise to provocation – and it is up to the jury to decide whether or not to find the defendant guilty of the lesser offence, manslaughter. The conviction was quashed and a retrial was ordered.
The dissenting judgment
As was often the case at the time, Justice Kirby was one of the two judges that disagreed with the majority – and it was his judgment that resonated after the case was decided.
Kirby found that there should not be a finding of provocation where sexual advances were non-violent – asking what would happen if every woman who was subjected to gentle and non-aggressive, but persistent, sexual advances responded with brutal violence.
Kirby said in his judgment that:
“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… Even allowing for the appellant’s alleged memories of his father’s sexual conduct … there is no way that an ordinary person in his position to have so far lost self-control as to have formed the intention to kill or inflict grievous bodily harm on the deceased.”
What is the law on provocation in NSW now?
The decision in Green was the subject of significant criticism, and it has since been overturned by legislation.
Under section 23 of the Crimes Act 1900 NSW, it is a partial defence to a charge of murder if a person was provoked, meaning that a defendant will be guilty of the lesser charge of manslaughter if provocation is established.
But in order to invoke the defence of provocation, the following matters must be established:
That the victim committed a ‘serious indictable offence’ (which is one that carries a maximum penalty of 5 years’ imprisonment or more);
- That the said offence caused the defendant to lose control; and
- That the conduct of the deceased would cause an ordinary person to lose control to the extent of intending to kill or inflict grievous bodily harm.
Significantly, the section has been amended to exclude the defence of provocation where the conduct of the defendant is brought about by a non-violent sexual advance.
What about other states?
Most other states and territories have similar legislation. Victoria abolished the partial defence of provocation altogether in 2005.
But in Queensland and South Australia, the ‘gay panic defence’ still remains in force – cemented by a High Court decision just last month of Lindsay v The Queen, which originated in South Australia.
The decision in Lindsay caused consternation amongst many who could not believe that the ‘gay panic defence’ is still alive and well in Australia.
The case of Lindsay
In Lindsay, the defendant stabbed a man to death after receiving sexual advances in the presence of his de facto wife and family.
The court ultimately found in favour of Lindsay – upholding his appeal, setting aside his conviction and ordering a new trial.
Like Green, the case of Lindsay has received significant criticism – with Greens MP Tammy Franks labelling it as “homophobic, offensive and positively medieval.”
Members of the South Australian parliament have called for immediate action, with the Attorney-General ordering an inquiry into the matter.
The Greens have now introduced a bill into Parliament which would abolish the ‘gay panic defence’ in South Australia once and for all.
Queensland is also working towards abolishing the defence under the recently elected Labor government.