Reforms to South Australian criminal law have been proposed in a new report on the issue of provocation.
The independent South Australian Law Reform Institute, based at the University of Adelaide, has now finalised stage 1 of a two-stage report into provocation.
The current law in South Australia allows the partial defence of provocation, which reduces murder to manslaughter, if a victim is alleged to have “provoked” the defendant into losing control and killing. Such a defence is referred to as the “gay panic defence” in situations in which the victim had allegedly made homosexual advances towards the defendant, and thus ‘provoked’ the defendant.
Provocation is also a potential partial defence in cases of family violence, where those who have experienced violence put an end to it by killing the perpetrator of that violence.
“Provocation is a highly complex and controversial issue, with gender bias and family violence, as well as discrimination against gay people among its key challenges,” says the Director of the SA Law Reform Institute, the University of Adelaide’s Professor John Williams.
“The current law of provocation indirectly sanctions lethal violence against those who seem to exhibit homosexual behaviour.
“It’s clear to us that the gay panic aspect of the current provocation defence is offensive and should be removed, and that any non-violent sexual advance of any kind should not amount to provocation.
“Our consultation and research have left us in no doubt that the current law is discriminatory on the grounds of sexual orientation, gender identity and also gender. It appears to favour males over females, and is especially unfair to women who have been subjected to family violence.”
However, Professor Williams says the Institute has recommended that no change should be made to the gay panic defence in isolation, until the stage 2 report is completed.
“As the problems of provocation extend well beyond the gay panic aspect, we believe that a wider focus is necessary to look at the whole defence of provocation. This must include the option and implications of its abolition.
“As a basic issue, we also believe that our laws in the 21st century should make it unacceptable for anyone to lose self-control and kill someone,” Professor Williams says.
In its stage 1 report, the Institute has made a number of recommendations, largely relating to improving the laws of self defence, duress and necessity to victims of family violence. Among the 11 recommendations in the Institute’s stage 1 report are:
• Removing any aspect of the current law that discriminates on the basis of sexual orientation and/or gender – to effectively remove the discriminatory “gay panic” aspect of provocation but also address the gender bias of the current law
• Clarifying that in cases of family violence, the actual or perceived threat of violence for self defence to arise need not be immediate or imminent at the time of the offence
• Ensure that the courts are able to consider the full range of relevant evidence relating to family or domestic violence when determining defences to murder charges and other serious crimes
• That “family violence” should be given a wide definition and not be restricted to physical violence, and, in keeping with issues of Indigenous kinship, not be confined to spouses or domestic partners.
In its stage 1 report, the Institute has not made any final recommendations about whether or not provocation as a defence should be entirely abolished. This issue will be addressed in the stage 2 report, which will look at the whole question of provocation and related issues.
The stage 2 report will be finalised in the coming months.