Gay panic to stay

Queensland Attorney-General Jarrod Bleijie has revealed that he is unlikely to implement changes to the infamous “gay panic” defence, despite recommendations to do so earlier this year from a special committee set up to investigate its presence in the Criminal Code.

In a further blow to the state’s gay and lesbian community, Blejie told ABC Radio last week that he didn’t think the recommendations were necessary.

“It’s been used twice in relation to same-sex, you know, homosexual [advance], where it’s now got this messaging of homosexual or gay panic defence. It’s not,” he said.

“It’s not a priority to change it.”

The Bligh Government had pledged to tighten the loophole after coming under public pressure earlier in the year to remove doubts about how and when a partial defence involving a non-violent sexual advance can be used.

An expert committee completed its review in January and based on the recommendations of legal expert and retired Court of Appeal judge John Jerrard, former attorney-general Paul Lucas promised to amend the Criminal Code to ensure the intent of the partial defence provisions were clearer.

Bleijie, however, said he was unconvinced of the validity of the recommendations.

“The former government used this as a political football. They set up a committee, it came up with an outcome to amend the Criminal Code,” he said.

“I think we have to get this misconception out of everyone’s mind that this [is a] ‘gay panic’ defence. It’s a Criminal Code defence open to any Queenslander regardless of sex.”

When the committee handed down its recommendations in January, Bleijie – then shadow attorney-general – said he would take the proposed changes to shadow cabinet for consideration, but that he didn’t think entirely removing the defence was possible.

“I support the view that it would be impossible to completely remove the partial defence as it could impact on the ability of female abuse victims in domestic relationships to rely on the defence,” he said at the time.

But Dr Alan Berman, an adjunct research fellow of the Socio-Legal Research Centre at Griffith Law School and a senior law lecturer at Newcastle Law School, said he knew of no circumstances in which partial defence of provocation was used in regards to a non-violent heterosexual advance.

“As far as I’m aware [non-violent heterosexual advance] has never been successfully raised in Australia,” he told Star Observer.

“It’s just not accurate and it confuses the issue because it’s clear that it’s not being applied equally.”

Berman, who took part in the first White House conference on hate crimes under the Clinton Administration, said it was unfair to claim that scrapping the defence would affect women in domestic violence situations.

“What they do is try and pit one group against each other and say ‘Oh, we don’t want unintended consequences, we don’t know how it will affect battered women,’” he said.

“They’ve already established a separate partial defence for battered persons and that is in no way affected by defence of provocation. It’s a separate defence.

“The last attorney-general [Paul Lucas] used that excuse too and I thought it was really disingenuous.”

The provocation defence has been abolished in Victoria, Western Australia and Tasmania, and a New South Wales Upper House Parliamentary Committee is currently conducting an inquiry into the contemporary relevance of the defence in that state.