South Australian government to finally dump ‘gay panic’ legal defence

south australian attorney general vicki chapman
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The South Australian government has pledged to abolish the state’s so-called “gay panic” legal defence before the end of the year.

The partial legal defence of provocation allows a heterosexual man accused of murder to attempt to reduce a charge if they claim they lost control and the violence was “provoked” by a non-violent homosexual advance.

Attorney-General Vicki Chapman (pictured, centre) said the fact such “an outdated legal position” still exists was “disappointing” and it would be scrapped.

But abolishing the defence entirely may have broader implications, she said, including for victims of domestic and family violence who kill an abuser in self defence.

“Abolishing the defence of provocation, of which the so-called gay panic defence is a part, has far broader consequences than just removing this outdated and frankly offensive aspect,” Chapman told Adelaide’s Advertiser.

“This is why we have sought to take a considered approach that removes those outdated, discriminatory elements while retaining those elements that are in line with community expectations.”

Chapman said a draft bill would be put out for consultation, including with the state’s legal authorities and victims’ rights advocates, before introducing it to parliament later in the year.

‘Unfair blaming of the deceased victim’

South Australia is the last state or territory in the country to address the so-called “gay panic” murder defence.

The Queensland government passed legislation to remove the equivalent law from the state’s Criminal Code in March 2017, after a Queensland priest’s petition attracted 290,000 signatures.

Last June, the SA Law Reform Institute handed a report to the South Australian government recommending the provocation defence be abolished and other changes be made.

SALRI deputy director David Plater said at the time 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 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 domestic and 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”.

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