A change.org petition asking South Australia to outlaw the ‘gay panic defence’ and add hate crime provisions to the sentencing law has attracted over 5000 signatures in a matter of a few days.

The petition started by South Australian Rainbow Advocacy Alliance (SARAA) and Equality Australia is addressed to Premier Steve Marshall and his government which is in the process of taking up the legislation that has been delayed by over a decade since it was first mooted.

South Australia is the only state in Australia that is yet to repeal the gay panic defence from its Criminal Code – an irony considering it was the first state in Australia to decriminalise homosexuality.

The ‘Gay Panic Defence’ is a legal argument that allows a murder charge to be downgraded to manslaughter when an accused claims that he acted in self defence or was provoked by the victim’s unwanted sexual advances. In simple terms a person accused of murdering an LGBTQI person can seek to be convicted for a lesser offence by claiming in his defence that he was provoked to attack after the victim had made a pass at him. The law has been used as recently as 2015 in South Australia.

“Our goal is to show our politicians that the community wants ‘gay panic (defence)’ gone. The government has looked at removing the gay panic defence a few times in recent years, with the most recent example being a consultation a few months ago. The community has been calling for this outdated legal defence to be removed for years, and we don’t want this latest attempt by the Attorney-General to fail,” Matthew Morris, Chair, SARAA told Star Observer.

 “Gay panic is probably the main legal issue that LGBTQI people ask SARAA about. For some, it’s seen as embarrassing that we’re the only state in Australia that hasn’t abolished it. For many though, it creates a genuine concern that they could be murdered, and their killer could use their sexuality or gender identity against them in order to seek a reduced sentence,” said Morris.

SARAA,  Equality Australia and other organisations had made their submissions to the draft bill that was released by Attorney General Vickie Chapman in June 2020.

The SA criminal code allows provocation to be used as a partial defence by an accused who is seeking his murder charge to be reduced to manslaughter. The gay panic defence has been cited by accused claiming they were proviked by the victim’s unwanted homosexual advances.

The law has been used as recently as the past decade in the case of 37-year-old Andrew Negre whose body was found in a wheelie bin in Hallett Cove. Michael Joseph Linday (32) was found guilty of murder in 2013 for beating and stabbing Negre. Lindsay claimed he had lost control after Negre provoked him by speaking about paying him for sex. In 2015, the High Court of Australia ordered a retrial. After many rounds of appeals, Lindsay was finally held guilty of murder.

In SA, the authorities have indicated that the challenge is to repeal the use of gay panic defence but allow the provication defence in cases of domestic or family violence.

The change.org petition calls upon the SA government to add provisions relating to hate crimes while deciding the quantum of punishment. The petition states, “The Sentencing Act 2017 (SA) should be amended to include as a sentencing consideration: whether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular race, religion, sex, sexual orientation, gender identity, age, or people having an intersex variation or a particular disability).”

Morris explained that in South Australia hate as a motivating factor is not considered when the courts decide the punishment.

“There should be no place for hate fueled violence in modern Australia, but at present South Australia’s Sentencing Act doesn’t specifically instruct a court to consider whether hatred or prejudice was a motive for a crime. We want politicians to consider this amendment, which would bring South Australia in line with other states such as Victoria and New South Wales.”

 Tasmania was the first state in Australia to ban the use of the gay panic defence in 2003, followed by Victoria in 2005, Western Australia in 2008 and  Queensland in 2017. The Queensland law permits the use of the defence in exceptional circumstances if approved by a magistrate. In NSW, ACT and the Northern Territory the changes in the law say that non-violent sexual advances (both heterosexual and homosexual) cannot be used as grounds for lesser charges.

Greens MLC Tammy Franks had first introduced a bill in the SA Parliament to repeal the gay panic defence around a decade ago. A political consensus to end the discriminatory law was reached in 2019.

“South Australia used to lead the country in LGBTQI rights, but we’re now lagging behind. We hope the (Steve) Marshall government will take this important step in the right direction as soon as possible,” added Morris.

Sign the petition here.

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