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.
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