Last Friday, the NSW Gay and Lesbian Rights Lobby (GLR) = submitted a response to the NSW Legistative Council Select Committee on the Partial Defence of Provocation. Our submission focused on the removal of the Homosexual Advance Defence (HAD) – also known at the ‘gay panic defence’ – a common law defence which, if used with success, reduces a charge of murder to manslaughter for a person who murders an individual of the same-sex who makes a non-violent unwanted sexual advance towards them.
Provocation can be established where a person is considered to have been pushed to the point where it is reasonable for them to lose control of their own actions to the point where they inflict grievous bodily harm on another person or to kill another person. The most common use of the Defence of Provocation is in a domestic violence setting, generally where a man has murdered his female partner.
This concept poses an interesting proposition: that the average person on the street would be so terrified at being flirted with by a person of the same sex that they could take leave of their rational senses and inflict physical violence, to the point of murder, to that person. And that very fact this defence exists excuses and forgives the murderers actions.
The HAD was most prominently used in NSW in the case of R v Green (1997), in which the deceased was punched 35 times and then stabbed in the face with a pair of scissors at least 10 times.
Notwithstanding that this provision should never have existed in the first place, HAD is an archaic provision and its continued existence is unimaginable in this day and age. Tasmania and Victoria have repealed provocation entirely as a defence. The ACT and Northern Territory have amended their criminal statutes to exclude the ambit of non-violent sexual advances as the sole basis of justifying provocation. Queensland, under the previous government, was moving to abolish HAD, but this has now been wound back (along with Civil Unions and HIV/AIDS funding).
Based on the Committee’s findings, the GLRL will keep you posted on what you can do to help remove HAD. Head to our website to read our submission, or find out how you can get involved in our current campaigns.
By LAINIE ARNOLD, NSW GLRL