This month, the Greens introduced a Bill into the South Australian Parliament to prohibit the use of the ‘gay panic’ defence in the State. In this post, Adelaide Law School’s Kellie Toole considers the value of the amendment. 

Picture this: Peter is in a bar enjoying a few drinks. Sally has been watching him from across the room. Peter goes outside to have a cigarette and takes a glass of beer with him. Sally follows him outside, makes small talk for a few minutes, then says ‘You are very attractive. Let’s go back to your place and see what happens’, while running her hand along his groin.

Then imagine: Peter is disgusted, angry, shocked and humiliated at her suggestion and her touch, and feels that his masculinity had been challenged. He smashes his glass against the wall, shoves the broken edge repeatedly into Sally’s neck, and stands by while she bleeds to death.

The police arrest Peter and charge him with murder. Under South Australian law, he can argue before a jury that the partial defence of provocation should result in his conviction for manslaughter rather than murder, as long as the judge is satisfied that there is evidence that he was provoked to commit the killing.

Peter’s lawyer argues that Sally provoked Peter though her inappropriate touching and suggestion, that her conduct made Peter lose his self-control, that the level of Sally’s provocation to a young heterosexual man was extremely grave, and that an ordinary person facing provocation of that gravity could also have lost control and acted as Peter did. The jury agreed, and convicted Peter of manslaughter rather than murder.

Is that really the law in South Australia? No. Of course not. The court and the community would expect Peter to decline Sally’s proposition and go back to enjoying his evening. But what if Sally was Simon? Would it make any difference? It logically seems that it should not, but in the case of Green in 1997, the High Court recognised ‘homosexual advance’ or ‘gay panic’ as a basis to raise the partial defence of provocation.[1]

Provocation is an old common law defence, framed when male honour was a matter of life and death. It recognised that it would be cowardly for a man to ignore an insult to his masculinity, whether delivered through words or an act such as adultery with his wife, and if he killed in that situation he was not blameless, but was certainly not a murderer.

It was refined in later centuries to make provocative conduct and loss of control the heart of the defence, but it still reflects the concept of male honour and 90% of the offenders who successfully rely on the defence are male. [2]  The defence became very controversial in the 20^th century, partly due to widespread negative publicity over the gay panic defence.[3]

Controversy over the gay panic defence contributed to the complete abolition of provocation in Tasmania, Victoria and WA,[4] and led the ACT and the NT to modify the partial defence so that a non-violent sexual advance cannot constitute provocation without other objectionable acts.  Queensland declined to introduce a similar provision at the time that it did limit provocation from applying where a person kills in response to their intimate partner leaving them. A NSW Select Committee has just recommended the modification of provocation so that it cannot be raised where someone kills in response to a non-violent sexual advance or an intimate partner ending a relationship.[5]

Amid extraordinary amounts of public and media criticism of provocation and law reform across Australia, SA has been strangely silent on the issue. However, earlier this month, Tammy Franks, an MP for the Greens (SA), introduced the Criminal Law Consolidation (Provocation) Amendment Bill 2013 to prohibit the ‘gay panic’ defence.[6]

The proposal is reasonable and admirable as it seeks to prevent homophobic attitudes from serving as a basis for a criminal defence. But is the Bill necessary?

Green was far removed from the type of scenario presented above, which is routinely presented as a viable situation for a gay panic defence. In Green, the victim snuck into bed with the defendant and touched his genitals, causing the defendant to re-live the trauma of sexual abuse he had experienced as a child. In actual fact, across Australia the gay panic defence has rarely been used, even more rarely been successful, and has now all but disappeared from the courts because it is considered profoundly out of touch with modern attitudes toward homosexuality.[7]

The much-publicised 2010 Queensland murder of Wayne Ruks has been widely condemned for upholding the gay panic defence. Homosexual advance was indeed raised in the case, but the convictions for manslaughter were reached on the basis that the two accused lacked the intent to kill or cause serious harm, rather than that their intention to kill was mitigated by the gay panic defence.[8]

Recent comment by the Chief Justice of the Supreme Court suggests provocation on the basis of any sexual advance is very unlikely to be allowed to go to a jury in a South Australian court.[9]

So, while the proposed statutory reform will send a welcome message against homophobia and angry male violence, the actual provision is likely to be legally redundant.

At best, the Bill might have a practical impact in promoting discussion of the abolition or modification of provocation so that men cannot rely on it when they kill an intimate partner who chooses to leave them. Such a move would signal to the whole community that men who kill in response to perceived sleights to their masculinity will bear full responsibility for their actions, rather than sharing the blame with their victims.