Abhorrent ‘gay panic’ defence abolished in Australia as final state outlaws heinous practice
South Australia has finally abolished the ‘gay panic’ defence for violent crimes, becoming the last state in Australia to do so.
It is officially called the provocation defence or the ‘homosexual advance defence’. The accused can use it downgrade charges of murder to manslaughter when they claim to have become violent upon finding out a victim’s sexuality or gender identity.
The accused may also claim temporary insanity due to ‘gay panic’ to reduce sentences for other violent crimes.
The South Australian government introduced the new bill in October.
A petition was signed more than 38,000 times urging the government to repeal the legislation allowing the ‘gay panic’ defence.
Equality Australia & South Australian Rainbow Advocacy Alliance started the petition, aimed at Vickie Chapman, attorney general of South Australia.
Vickie Chapman told the state parliament: “The defence has been criticised for being complex, gender-biased and for encouraging victim-blaming.
“Notwithstanding the offence was rarely successful in this context, its operation is offensive and unacceptable.”
South Australia was the first state in Australia to decriminalise homosexuality in 1975
All other Australian states and territories have reformed their laws to abolish the ‘gay panic’ defence. Victoria passed a bill in 2005, followed by Western Australia in 2008 and Queensland in 2017. However, Queensland’s reform still includes a clause which allows the defence in exceptional circumstances, as determined by a magistrate.
New South Wales, Australian Capital Territory and Northern Territory have all reformed their laws to stipulate that non-violent sexual advances of any kind are not a valid defence. This effectively banned the ‘gay panic’ defence.
Four defendants have used this defence in the last ten years. Michael Lindsay famously used the defence in 2011 for the murder of Andrew Negre, who he stabbed and killed in Adelaide. Despite an appeal and a retrial, the court found him guilty of murder in 2016.
Between 1993 and 1995, at least 13 defendants successfully used the ‘gay panic’ defence in New South Wales alone.
Some US states are also moving to outlaw the legal defence, with Colorado becoming the 11th state to do so in July. Previously, there have been attempts to ban the defence in federal law, but all proposed bills thus far have failed.
The Human Rights Law Centre recommended that South Australia abolish the defence in 2018.
Lee Carnie, a lawyer at the Human Rights Law Centre, said: “This is a law that is clearly rooted in discrimination, completely out of step with community standards and has absolutely no justification.”
Nat Cook, an MP for the Australian Labour Party, tweeted yesterday (1 December): “End of a long fight today – the gay panic defence has finally been scrapped in South Australia. Such an important step for equality for our LGBTIQ community.”
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