Abolish the 'Gay Panic' defence from NSW law
  • Petitioned Mr Barry O'Farrell, MP

This petition was delivered to:

NSW Premier
Mr Barry O'Farrell, MP
Leader of the Opposition
Mr John Robertson, MP
Greens NSW
Mr David Shoebridge, MLC
Member of the Christian Democratic Party
Rev Fred Nile, MLC
Shadow Attorney General and Shadow Minister for Justice
Mr Paul Lynch, MP
Member of the Legislative Council
Hon. Helen WESTWOOD, AM MLC
NSW Attorney General and Minister for Justice
Mr Greg Smith, MP

Abolish the 'Gay Panic' defence from NSW law

    1. Beat Project NSW
    2. Petition by

      Beat Project NSW

      Australia

Following the recent struggles in Queensland to eliminate ‘Gay Panic’, New South Wales remains one of the last states in Australia where “Gay Panic” and “Homosexual Advance Defence” (HAD) principles associated with the ‘Homosexual Provocation’ defence continue to exist as a legal loophole that encourages homophobia, and acts to legitimise and reinforce a culture of violence and hatred towards homosexuals.

Hate-related violence against the GLBTIQ community continues to be a problem and most incidents will go un-reported, especially in regional areas where there are fewer social avenues for men to meet and greater opportunity of violence - with much of this violence being a result of homophobia and community prejudices – ‘moral panic’, and the shame and stigma often associated with being homosexual.

The “Homosexual Provocation’ defence allows people accused of hate-related violence and murder to successfully argue that they were acting in self-defence when ‘provoked’ by a gay man who makes a non-violent homosexual advance toward them - that is “comes onto” them, that results in ‘panic’ and a temporary and justified loss of self-control – this is generally enough to trigger a dismissal or the lesser charge of manslaughter.

Problems around ‘Provocation’ exist as the allocation of blame is directed at the actions of the victim - ‘blame the victim’, and the ease with which such claims can be fabricated as the onus is on the prosecution to prove beyond reasonable doubt that the actions causing death were not an act of ‘Provocation’ – which is often impossible in situations when there is no corroborating witnesses and/or the victim is dead.

In 1998, the NSW Attorney-Generals Department released its final review of HAD and made many recommendations including legislative reform of section 23 ‘Provocation’... all of the recommendations have been implemented except the exclusion of a non-violent homosexual advance from forming the basis of the defence, and HAD remains an option for defendants in NSW.

Section 23 ‘Provocation’ - NSW Crimes Act 1900, continues to provide a legal loophole for people who commit these offences and has been used to successfully argue that the ‘panic’ they feel is partial justification for violence and murder and reduces the liability of the accused – if the actions causing death were ‘necessary and reasonable’.

The death of a gay man with a disability at a park in Narrabeen in 2007 saw ‘Gay Panic’ and HAD principles invoked to allow the lesser charge of manslaughter for what was essentially a violent and heinous hate-crime.

Concerns were raised about the sentencing decision and the former NSW Attorney-General John Hatzistergos was requested to appeal the decision, yet he declined and instead defended the law by stating the sentence wasn’t downgraded because of a homosexual provocation defence – that is, it wasn’t ‘Gay Panic’, and that the jury found the accused guilty of manslaughter rather than murder on the basis of ‘excessive self-defence’.

Section 421 ‘Self-defence-excessive force that inflicts death’ – NSW Crimes Act 1900, relates to the situation where the defendant believed that the conduct was necessary even though it was excessive, the defendant is not criminally responsible for murder but is guilty of manslaughter.

This demonstrates a crisis of faith in the fairness of the NSW criminal justice system and highlights its systemic failure to protect the GLBTIQ community, and we request:
 
1) Abolition of ‘Gay panic’ and ‘Homosexual Advance defence’ (HAD) Principles.
2) Amending Section 23 ‘Provocation’ – NSW Crimes Act 1900, to exclude non-violent homosexual advance.
3) Amending Section 421 ‘Self-defence-excessive force that inflicts death’ - NSW Crimes Act 1900, to exclude non-violent homosexual advance.
4) Mandating Jury Warnings for Hate-related Crimes, and Sentencing Enhancements.
5) Enhancing existing NSW Police resources to address hate-related crime toward the GLBTIQ community.

Please sign this petition to ensure that ‘Gay Panic’ and the use of non-violent homosexual advance (HAD) as a partial defence for murder is finally eradicated, and that discriminatory laws are abolished to ensure the safety of the GLBTIQ community.

Recent signatures

    News

    1. Reached 750 signatures
    2. Partial defence of provocation (Inquiry)

      Beat Project NSW
      Petition Organizer

      This inquiry is a current Legislative Council inquiry conducted by the Provocation Committee.

      This inquiry was established on 14 June 2012 to inquire into and report on the retention of the partial defence of provocation, the adequacy of the defence of self-defence for victims of prolonged domestic and sexual violence and any other matters.

      The Committee encourages public participation in the inquiry process, submissions can be lodged via post, fax or email. The closing date for submissions was Friday 10 August 2012, however the Committee will continue accepting submissions until Friday 24 August 2012. If you have any further enquiries please contact the secretariat on 9230 3504.

      http://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/78B96853E8FC1F2DCA257A22001D0442

    3. Reached 500 signatures
    4. Clover responds to call for law reform of “Homosexual Advance Defence"

      Beat Project NSW
      Petition Organizer

      Clover raised this matter with the former AG, and his January 2009 response stated:

      "Since the release of the Working Party’s Report in 1998, all of the recommendations have been implemented, except for the exclusion of a non-violence homosexual advance from forming the basis of the defence of provocation, by way of legislative reform of section 23 of the Crimes Act.

      "Instead, the NSW Government in 2001 codified the law of self-defence and reintroduced the defence of “excessive self-defence".

      "It is acceptable in the opinion of the Government that a person who honestly believes that he [sic] is acting in self-defence but who uses more force than is reasonable in the circumstances should not be liable for murder but be liable for the lesser offence of manslaughter. Such a result is consistent with the values of a civilised society which upholds and respects the sanctity of life.”

      Clover strongly opposes discrimination and calls for community education to shift homophobic attitudes.

    5. Decision-maker Ms Clover Moore, MP responds:

      Ms Clover Moore, MP

      Hi folks

      Clover has asked me to respond to your campaign email calling for law reform about “homosexual advance defence”. She raised this matter with the former Attorney General to follow up the 1998 Final Report of the Homosexual Adva...


    6. Reached 250 signatures
    7. Push to end 'Gay Panic' defence - Star Observer - 10 February 2012

      Beat Project NSW
      Petition Organizer

      There is a new push to abolish the so-called gay panic defence in New South Wales.

      The Beat Project NSW is calling on the NSW Attorney General to amend the laws. “We would like to see the abolition of gay panic and homosexual advance defences being used for provocation... Obviously the laws do have other applications. But the idea that panic resulting from a man making a sexual advance on another man is somehow a defence for killing a person is just plain wrong.”

      It follows the Queensland Government’s announcement it would remove the gay-panic defence following an online campaign through change.org by Maryborough Catholic priest Father Paul Kelly.

      Change’s Australian director Nick Allardice said it was fantastic people were being inspired to start their own campaigns following the success of other petitions. “It was incredible to see the impact of Father Paul’s Queensland campaign and we hope to see many more campaigns tackling issues of discrimination and injustice.”

    8. Reached 50 signatures

    Supporters

    Reasons for signing

    • Bramley White AUSTRALIA
      • almost 2 years ago

      GLBTIQ people deserve to be treated the same as cis people

      REPORT THIS COMMENT:
    • Andrew Barker TORONTO, CANADA
      • almost 2 years ago

      No one should be able to justify killing another for this reason

      REPORT THIS COMMENT:
    • Kendall Lovett MELBOURNE, AUSTRALIA
      • almost 2 years ago

      Because anyone who uses such violence that can kill, bash or maim another person because he believes that person is suggesting a procedure he doesn't want to take part in, is simply trying to disguise his prejudice, hate and his intention to harm any person who doesn't agree with him. He is basically a vile bully. This law actually gives him licence to bully. It has no place in a democratic country like Australia.

      REPORT THIS COMMENT:
    • Mannie De Saxe MELBOURNE, AUSTRALIA
      • almost 2 years ago

      Gay, Lesbian, Transgender and HIV haste crimes in Australia have often been treated with homophobia by police and politicians. If enough people protest this attitude in our communities, something will at last be done to stop these heinous crimes from continuing unabated.

      REPORT THIS COMMENT:
    • Jason Green AUSTRALIA
      • almost 2 years ago

      A cowards defense. No law should defend a hate crime, in this modern day, we should be ashamed to have this law in Australia. Remove it.

      REPORT THIS COMMENT:

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