equality before the law
THE FOLLOWING IS A COPY OF THE TEXT WITHIN THE GAY AND LESBIAN LAW REFORM SUBMISSION

Homosexual Panic Defence

The term “homosexual panic defence” refers to “cases in which an accused person alleges that he or she acted either in self defence or under provocation in response to a homosexual advance made by another person, usually the victim”: Western Australian Ministerial Committee on Lesbian & Gay Law Reform, June 2001 at p 125.

When a defendant relies on this defence, the defendant claims either that he or she was forced to use such violence, or that he or she was so angered by the advance that they lost control, even though the victim did not use violent behaviour or threaten any violence towards the defendant.

The defence has been widely criticised, as serving to reinforce the legitimacy of homophobic attitudes in the general community.

“In my view, the “ordinary person” in Australian society today is not so homophobic as to respond to a non-violent sexual advance by a homosexual person as to form an intent to kill or to inflict grievous bodily harm. He or she might, depending on the circumstances, be embarrassed, treat it first as a bad joke, be hurt, insulted. He or she might react with the strong language of protest, might use such physical force as was necessary to effect an escape and where absolutely necessary assault the persistent perpetrator to secure escape.

But the notion that the ordinary 22 year old male…in Australia today would so lose his self-control as to form an intent to kill or grievously to injure the deceased because of a non-violent sexual advance by a homosexual person is unconvincing. It should not be accepted by this Court as an objective standard applicable in contemporary Australia”.

Green v R (1997) 191 CLR 334 per Kirby J at 409 (dissenting).

The Western Australian Ministerial Committee considered this matter and made three key recommendations in its June 2002 report. Those recommendations were as follows:

(1) That the Criminal Code be amended to expressly exclude the defence of provocation being available (either for assault or murder) as a result of a non-violent homosexual advance.

(2) That the Attorney General refer matters related to directions given to juries involving gay men, lesbians and bisexuals, whether as victim/complainants or the accused to the Law Reform Commission (WA) for review with a view to such directions being formalised whereby directions should be to the effect that there should be no prejudice against the deceased or alleged victim on the basis of sexual orientation.

(3) That the Attorney General consult with the Chief Justice of the Supreme Court, the Chief Judge of the District Court and the Chief Stipendiary Magistrate of Western Australia on the provision of judicial education for issues relating to gay men, lesbians and bisexuals.

Recommendations

It is recommended that the NT Government develop and implement reforms, based on the recommendations of the Western Australian Ministerial Committee, to ensure that the “homosexual panic defence” is not available in the Northern Territory jurisdiction.

Cost Implications

This recommendation has no cost implications.