IS A COPY OF THE TEXT WITHIN THE GAY AND LESBIAN LAW REFORM
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.
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.
This recommendation has no cost implications.