Forty five years after South Australia became the first state in Australia to decriminalise homosexuality, it is the only jurisdiction yet to outlaw the discriminatory  ‘gay panic defence.’

A political consensus and promises to enact the change to remove gay panic defence from the criminal code by end-2019 has not come to fruition

A spokesperson for Attorney-General Vickie Chapman told ABC News that that a draft bill is likely to be ready in the coming weeks with it being taken for public consultation in the second half of 2020.

What is the gay panic defence?

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 essence, a person accused of murdering an LGBTQI person can claim in his defence that the victim had made a pass at him.

Under the SA criminal code, provocation is a partial defence that allows for a murder charge to be reduced to manslaughter. The challenge for law makers is to remove the ‘gay panic defence’  from the purview of the law, while ensuring that it can still be used in cases of domestic or family violence.

Greens MLC Tammy Franks, moved a motion last month in the South Australian Parliament calling for its abolition.

“Almost a decade since I introduced a Bill to rid ourselves of the hurtful stain of the so-called ‘gay panic’ – and several bills and inquiries after that – we are still waiting for the law to treat a gay man’s life as of equal worth if he is murdered.

“It’s been long enough. While the so-called ‘gay panic’ defence exists in our state it means we are willing to blame the dead victim if his killer claims he was gay, and I think that is unacceptable. The South Australian Government is now absolutely alone in Australia in defending this indefensible defence. The time for this change was years ago, but now is better than never.”

A look at some of the cases in the past reveal how the defence has been used for lighter sentences and in some cases downright acquittals.

  • 2015 – James Miller (then 66)  stabbed his neighbour Daniel Spencer (32) to death in Austin. Miller claimed Spencer came on to him. A jury found Miller guilty of criminally negligent homicide and handed him a sentence of 10 years probation and six months in jail.
  • 2011 – Andrew Negre’s (then 37) 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.
  • 2008 – Wayne Ruk (then 45) was bashed and left to die in a churchyard by his assailants Richard John Meerdink (39) and Jason Andrew Pearce (36) in Queensland. At the trial Pearce claimed had grabbed his penis. Security camera footage showed that Ruk had not touched Pearce. The court dropped murder charges and convicted the duo for manslaughter. Pearce, who was sentenced to nine years in jail, was released after serving a total of four years, while Meerdink was released after eight years.
  • 2003 – In Auckland David McNee (54) a gay interior designer and television celebrity was beated to death by Philip Layton Edwards, who he had picked up at a traffic light. Edwards agreed to masturbate in front of McNee for $120 on a “no-touch basis”. Edward claimed he was provoked to assault McNee after he touched his (Edward’s) buttocks and put his finger into his anus. A court accepted that “some type of homosexual advance was made” towards Edwards and sentenced him to nine years in prison for manslaughter.
  • 2002 – In California, Gwen Arauja (17) a trans teenager was murdered by Michael Magidson, José Merél, Jaron Nabors, and Jason Cazares in. They used the ‘trans panic’ defence, claiming they were provoked after finding out that Arauja had male genitalia. The quartet were found guilty of manslaughter.
  • 1991 – Robert Murley (23) beat up, stabbed and almost decapitated Joe Godfrey (65). They had met in a Melbourne pub, before heading to Godfre’s home for a night cap. Murley claimed Godfrey had exposed his penis and put his arms around him. In reportedly the first successful use of the ‘homosexual advance defence’in Australia, the jury ruled that Murley had acted in self defense and acquitted him of all charges.

A study by W. Carsten Andresen, Assistant Professor of Criminal Justice at St. Edward’s University, revealed that between 1970 and 2019, gay panic defence was used in 104 cases of murder in the US. Murder charges were reduced in 32% of the cases.

Following a 2013 resolution by the American Bar Association, nine states have California, Illinois, Rhode Island, Nevada, Connecticut, Maine, Hawaii, New York, New Jersey and Washington have banned panic defence.

In Australia, Tasmania was the first state in 2003 to ban the use of gay panic defence, followed by Victoria in 2005, Western Australia in 2008 and  Queensland in 2017. Queensland law, however, says the defence could be used in exceptional circumstances if permitted by a magistrate. In NSW, ACT and the Northern Territory the laws were changed to bar non-violent sexual advances (both heterosexual and homosexual) as grounds for lesser charges.

New Zealand removed the use of gay panic defence in criminal trials since 2009.

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