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Abolish the gay panic defence law in South Australia

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On the 22nd of March 2017, the "gay panic defence" was scrapped in Queensland. This means that South Australia is the only state in Australia to keep this homophobic and outdated law.

Also known as the "homosexual advance defence (HAD) strategy", the gay panic defence is an argument made by lawyers to downgrade murder sentences to manslaughter. The idea is that if someone of the same sex makes advances on you, and you are panicked to the point of murdering them, then under the partial defence of provocation your sentence can be lightened.

This horrific and backwards legal defence has got to go. It no longer has a place in our society. Fearing gay people is no longer an acceptable excuse for murder - it contravenes Articles 1, 2, 9, 22, 28 and 30 of the Universal Declaration of Human Rights, and the Protection against violence and discrimination based on sexual orientation and gender identity convention of the UNHRC.

In 2011, Michael Joseph Lindsay was found guilty of bashing and stabbing Andrew Negre to death, and then depositing Negre’s body in a wheelie bin. Lindsay’s lawyer attempted to use the gay panic defence to turn the jury to Lindsay’s favour, but the jury and judge ruled otherwise:

"There is no doubt that in former times, when acts of homosexuality constituted serious crime and men were accustomed to resort to weapons and violence to defend their honour, a killing under the provocation present here would have been seen as giving rise to a verdict of manslaughter rather than murder. However, times have very much changed."

Times have changed indeed. Reverend Father Paul Kelly, a Catholic priest in Brisbane, created the successful “Stop allowing “gay panic” as an excuse for murder in Australia” petition, which garnered over 290,700 signatures – one of the most forward and progressive figures against the scrapping of the gay panic defence in Queensland.

“For many years [SA has] been at the forefront when it comes to LGBTIQ issues,” said SA Rainbow Advocacy Alliance chair Andrew Birtwistle-Smith. “For us to be the last in Australia, it is quite embarrassing.”

Australia’s justice system is exactly that – a justice system, based on fairness and equality. So long as the gay panic defence persists in Australia, the reliability and effectiveness of this system is undermined and ineffective. Bigotry in any form holds no place in our country, or in our courts, and it’s time that South Australia dismiss the gay panic defence as a partial excuse for murder.

 

ABC News, 2016. South Australia becomes last state to allow gay panic defence for murder. [online] p.1. Available at: <http://www.abc.net.au/news/2017-03-22/sa-becomes-last-state-to-allow-gay-panic-defence/8376948> [Accessed 22 Mar. 2017].

ABC News, 2017. Gay panic defence scrapped by Queensland Parliament after lobbying by Catholic priest. [online] p.1. Available at: <http://www.abc.net.au/news/2017-03-22/gay-panic-defence-scrapped-by-queensland-parliament/8374758> [Accessed 22 Mar. 2017].

Anon, 2012. Stop allowing “gay panic” as an excuse for murder in Australia. [online] Change.org. Available at: <https://www.change.org/p/stop-allowing-gay-panic-as-an-excuse-for-murder-in-australia> [Accessed 22 Mar. 2017].

Anon, 2014. Resolution adopted by the General Assembly on 18 December 2014. 1st ed. [ebook] United Nations General Assembly, pp.1-6. Available at: <http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/69/182> [Accessed 22 Mar. 2017].

Anon, 2016. A sordid history of the gay panic defence in Australia. [online] SBS. Available at: <http://www.sbs.com.au/topics/sexuality/agenda/article/2016/08/12/sordid-history-gay-panic-defence-australia> [Accessed 22 Mar. 2017].

Anon, 2016. Manslaughter Murder Homicide laws Victoria |Criminal legal. [online] Victoria.criminallegal.com.au. Available at: <http://victoria.criminallegal.com.au/crimes/manslaughter-murder-homicide-laws/#> [Accessed 22 Mar. 2017].

Anon, 2017. Combating discrimination based on sexual orientation and gender identity. [online] Ohchr.org. Available at: <http://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBT.aspx> [Accessed 22 Mar. 2017].

Anon, 2017. Council establishes mandate on protection against violence and discrimination based on sexual orientation and gender identity. [online] Ohchr.org. Available at: <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20220> [Accessed 22 Mar. 2017].

Anon, 2017. Free & Equal. [online] Unfe.org. Available at: <https://www.unfe.org/> [Accessed 22 Mar. 2017].

Anon, 2017. International Human Rights Law and Sexual Orientation & Gender Identity. 1st ed. [ebook] United Nations for LGBT Equality, pp.1-2. Available at: <https://www.unfe.org/system/unfe-6-UN_Fact_Sheets_v6_-_International_Human_Rights_Law__and_Sexual_Orientation___Gender_Identity.pdf> [Accessed 22 Mar. 2017].

Anon, 2017. Maximum Penalties | The Sentencing Advisory Council. [online] SentencingCouncil.vic.gov.au. Available at: <https://www.sentencingcouncil.vic.gov.au/about-sentencing/maximum-penalties> [Accessed 22 Mar. 2017].

Gregoire, P., 2015. 'Gay Panic' Is Still a Murder Defense in Some States of Australia. [online] Vice. Available at: <https://www.vice.com/en_au/article/gay-panic-is-still-a-murder-defence-in-some-states-of-australia> [Accessed 22 Mar. 2017].

news.com, 2016. Why is Queensland still waiting to remove the ‘gay panic defence’?. [online] p.1. Available at: <http://www.news.com.au/national/courts-law/why-is-queensland-still-waiting-to-remove-the-gay-panic-defence/news-story/57c7907b3b7c7e5fdfc2772e1e66fae9> [Accessed 22 Mar. 2017].

Purtill, J., 2017. Why Queensland and South Australia still have the 'gay panic defence'. [online] Triple J HACK. Available at: <http://www.abc.net.au/triplej/programs/hack/the-killing-of-wayne-ruks-and-the-gay-panic-defence/7295156> [Accessed 22 Mar. 2017].

SBS News, 2017. Queensland abolishes 'gay panic' defence to murder. [online] p.1. Available at: <http://www.sbs.com.au/news/article/2017/03/22/queensland-abolishes-gay-panic-defence-murder> [Accessed 22 Mar. 2017].

Schwartzbach, M., 2017. Murder vs. Manslaughter: State of Mind. [online] www.nolo.com Available at: <http://www.nolo.com/legal-encyclopedia/murder-vs-manslaughter-state-mind.html> [Accessed 22 Mar. 2017].



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