South Australia will remove its so-called “gay panic” murder defence, becoming the last Australian jurisdiction to do so.
The partial legal defence allows a heterosexual man accused of murder to attempt to reduce a charge down to manslaughter if they plead guilty but claim they lost control and the violence was “provoked” by a non-violent homosexual advance.
The University of Adelaide’s SA Law Reform Institute (SALRI) released a report for the South Australian Liberal government that recommends the “offensive and discriminatory” defence be scrapped.
South Australian Attorney-General Vickie Chapman (pictured) said the “gay panic” defence is “simply no longer acceptable” and committed to drafting a law to remove it.
SALRI deputy director David Plater said the existing provocation defence “allows unfair blaming of the deceased victim and, as a basic issue, we believe that our laws in the 21st century should make it unacceptable for anyone to lose self-control and kill someone.”
The Institute was tasked with investigating whether repealing the broader defence of provocation – of which the gay panic defence is one part – may have an adverse effect in unrelated cases.
The report recommended that the defence of provocation be abolished, that greater flexibility in sentencing be introduced, and that statutory defences of duress and necessity be introduced to provide greater recognition of the situation of victims of family violence.
Mr Plater said “apart from the gay panic aspect, our consultation and research have left us in no doubt that the current [provocation] law favours men over women and is especially unfair to women who have been subjected to family violence.”
The report calls for “limited” changes “to provide clearer protection to victims of family violence” but “without … unduly excusing criminal behaviour”.
Ms Chapman said the state government gave in-principle support to the SA Law Reform Institute’s other recommendations but said she wanted to “ensure victims of long-term domestic violence have a partial defence open to them” if they kill their abuser.
‘Clearly rooted in discrimination’
Human Rights Law Centre lawyer Lee Carnie said the state’s “gay panic” defence “is clearly rooted in discrimination, completely out of step with community standards and has absolutely no justification today.”
“The so-called ‘gay panic defence’ leads to grave injustice in individual cases but also perpetuates the dangerous idea that homophobia justifies murder,” Carnie said.
“This discrimination has not just been used historically – it was considered relevant in a case before the South Australian courts less than a year ago.
“Our laws should be directed at preventing and reducing the harm caused by homophobia, rather than condoning or justifying prejudice.”
South Australia is the last state to act on abolishing its so-called “gay panic” defence after the Queensland government amended the state’s provocation laws in March 2017.