Last week the NSW Legislative Council Select Committee into the Partial Defence of Provocation unanimously recommended changes to the Crimes Act (NSW 1900) which would, among other things, preclude the use of the defence of provocation in cases of a non-violent sexual advance. This defence is the notorious “homosexual advance” or “gay panic” defence.
If adopted, this recommendation signals the end to an archaic law that has reduced the charge of murder to manslaughter in the past and effectively placed the lives of many gay and bisexual men in danger.
Historically, the use of provocation in the case of a non-violent sexual advance has only ever been invoked in cases involving an advance from a male to another male. This happened eleven times between 1990 and 2004.
The law has never been applied to an advance from a male to a female, or from a female to a male, or to another female – and nor should it have been.
If the recommendation becomes law it will end a conspicuous instance of differential treatment to gay and bisexual males in a legal system which has, in many respects, made remarkable progress in recognising our rights.
Progress on this issue has been a very long time coming. In 1995, NSW Attorney General Jeff Shaw established the Homosexual Advance Defence Working Party to examine homicides where defendants charged with murder used either the defences of provocation or self-defence in order to have the charge downgraded.
In 1998 the Working Party issued a report recommending legislative change to expressly remove the possibility of such a defence. The recommendation was never adopted.
Perhaps remarkable is the degree of cross-party support for the committee report. Members of every party in Parliament (except the Shooters and Fishers) sat on the committee, and supported the recommendations. The result is testament to the importance of working across difference.
We would particularly like to thank Committee deputy chair Trevor Khan MLC, the 2012 GLRL Supporter of the Year, for his endless encouragement and persistence, and committee member Helen Westwood MLC, whose private members’ motion established the inquiry.
The premier and government now need to act swiftly to turn the recommendations into law. The fact that the recommendations have such broad support should make their passage into legislation much smoother.
This result of this inquiry is a long-awaited opportunity to bring an Act drafted at the turn of the twentieth century into line with community expectations in the twenty-first, and when that happens we will celebrate this much-needed reform.