The NSW Gay and Lesbian Rights Lobby (GLRL) has called for the ‘gay panic’ defence, still enshrined in state law, to be removed.
The call comes as the Upper House this week agreed to a parliamentary inquiry to look at abolishing laws which allow people charged with murder to use provocation as a defence.
GLRL co-convenor Justin Koonin welcomed the review and said the homosexual advance defence entrenches homophobia in the law.
“The homosexual advance defence legitimates homophobia in the community by suggesting that same-sex advances are by implication provocative to ordinary people,” he said.
Although the inquiry is yet to be set up, GLRL co-convenor Lainie Arnold said the O’Farrell Government needs to overturn the outdated provision.
“We hope the NSW Government will act swiftly to abolish the homosexual advance defence,” she said.
Currently there is provision in the NSW Crime Act to reduce a charge of murder to manslaughter where provocation is established.
Although the gay panic defence has not been successfully used recently, the possibility still remains in law.
The best known recent use of the homosexual advance defence was in 1994 when NSW man Don Gillies was murdered by his friend Malcolm Green after Gillies made an advance towards him.
During the criminal trial, Green used the argument that Gillies’ unwanted advance had provoked him to murder his friend.
The case went to the High Court and in 1997 the use of the homosexual advance defence was upheld. Green’s charge was reduced from murder to manslaughter.
The latest inquiry follows a similar government review in 1997. The review recommended the homosexual advance defence be excluded, but the change was never made.
The provocation defence has been abolished as a defence in Victoria and Tasmania.
The Northern Territory and the Australian Capital Territory have also excluded non-violent sexual advances from their provocation defences.