Gay Panic Defence Essay

Episode IV: A New Hope

A person who unlawfully kills another, as not to constitute murder is guilty of manslaughter. An element that diminishes responsibility of murder to manslaughter is provocation. Charges of manslaughter have lenient sentencing as opposed to murder, which is a mandatory life sentence.

The ‘gay panic defence’ is a legal argument used by defence lawyers to decreased murder charges on the basis that the defendant was ‘provoked’ into homicide by a sexual advance from the victim. The gay panic defence is the result of common-law in Australia; the High Court precedent was set in 1997 in the case of R v Green.

In 2010, the legal argument was successfully used after two men battered Wayne Ruk to death in Queensland. Wayne

Ruk’s killing aroused community outrage, creating activism leading to amendments of The Queensland Criminal Code. The Criminal Law Amendment Bill 2016 amended s 304 of The Criminal Code to “limit the application of the defence when the provocation alleged stems from unwanted sexual conduct”. These provisions expanded the scope of criminal liability.
In this paper, the Section 304 of the Criminal Code will be discussed and will examine the policy implications of the Amendments introduced to Section 304 of The Criminal Code by the 2016 Criminal Code Amendment Bill. The second half of this paper will examine and establish equality as the fundamental legislative principle. This paper, will then critically analyse the amendments however, establish support of the amendments.
Episode V: The Empire Strikes Back - Statutory Relevance
Provocation as a defence to murder excuses the behaviour of the defendant, romanticizing it as passion rather than a violent crime.

Section 304 (1) defines provocation as the heat of passion caused by sudden provocation, before there is time for the passion to cool. This section states the defendant must have lost ‘self-control’ based on the conduct of the victim; therefore, killing the victim in ‘hot blood’ and not through premeditation. It is a subjective element of provocation that necessitates the defendant to lose self-control based on the conduct of the victim. Moreover, the defendant must have acted ‘before there is time for the passion to cool.’ The ‘heat of passion, denotes some emotion of passion, of great intensity,’ creating an instant reactive response by the defendant. However, there is also an objective element to this section established by R v Stingel. Section 21.113 of the Queensland Law Reform Commission Report lays out the objective person test which determines ‘the provocation could produce in the hypothetical ordinary person the same reaction it produced in the

defendant.’

The objective test does not observe the principles of Natural Justice as they are fundamentally bias towards ‘dominant culture of caucasion men and towards hetrosexual men’. The principles of the test are based on policy implications of how the defence of provocation has been enforced throughout the criminal legal system. In cases like Masciantonio v R, the Court recognized the limitations of ‘ordinary person standard test in Australia’ as favouring Anglo-Saxon-Celtic, middle class stereotypes.’

In gay panic defence cases, the Defence relies on displaying that the ordinary person, in the accused’s position would ‘lose self control’ based on the homosexual advances by the victim. These policies support the norm that non-violent homosexual behaviour constitutes ‘extreme circumstances’ and may provoke the ordinary person to fatal violence.’ This creates the narrative that ‘the ordinary man is understood to be capable of succumbing to homophobic rage in the face of a non-violent homosexual advance.’In the case Green v R the dissenting judge, Justice Kirby addresses these narratives, urging the court ‘not to send the message that it is condoning anti-homosexual behaviour.’ Moreover he asserts that “no jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that the appellant's reaction to the conduct of the deceased fell far below the minimum limits of the range of powers of self-control which must be attributed to the hypothetical ordinary 22 year-old Australian male in the position of the appellant.” This assertion by Justice Kirby is valid however, it ignores the ideas that social change and acceptance is arbitrary in its effect. Additionally, the logic of Justice Kirby was not readily accepted as it lack validity because it assumes that everyone is accustomed to sexual advances and is ignorant to cultures that do not practice sexual fluidity.

Episode VI: Return of Justice

The need to modify the existing rights to the defence of provocation and alter the prior policy implications led the Queensland Law Reform Commission to develop a report on provocation.

Findings from that report produced change in legislation; creating subsections 4 through 11. In particular s 304(4) was added which limits the use of provocation, other than in circumstances of an exceptional character, if the sudden provocation is based on an unwanted sexual advance to the person. The section establishes that, where the defendant kills the victim based on unwanted sexual advances, the partial defence of provocation is no longer available. ‘The amendment is framed in gender neutral language; however it is the policy intention that the amendment applies so as to exclude an unwanted homosexual advance.’ These fundamental legislative principles can be found in the explanatory memorandum of the amendments which explains that the Bill was created to abolish this defence. The report records the Chair's part reasoning of "the goal of having a Criminal Code which does not condone or encourage violence against the Lesbian, Gay, Bisexual, Trans, Intersex (‘LGBTI’)

community"

S 304 (11) of The Criminal Code seeks to establish any ambiguities surrounding the term of ‘unwanted sexual advance to the person’ as being ‘minor’ and ‘unwanted to the person.’ The amendment provides some context as to what may be 'minor touching' by including examples however, the definition may vary case by case. The purpose of this was to ensure the legislation makes clear regard to conduct that is more extensive than an unwanted sexual advance and any history of sexual conduct, or of violence, between the accused and the victim. In today’s society, killing in response to provocation nonviolent homosexual advance is unacceptable. Removing the defence of provocation and implementing sentencing discretion will ensure that accused persons who react excessively will be held fully culpable, whilst those who act in a reasonable fashion will have their circumstances considered in sentencing.

Episode I: The Principle Menace

The law infringes in all aspects of our lives for the greater good. An essential principle of the rule of law is that public law ensures that institutions of the states operate to govern the people residing within their territory in a way that is fair, just and equitable. ‘Equality before the law is a fundamental principle of human rights and the amendment to section 304 will ensure that this provision operates equally for all members of our community.” In principle, gender should not change the law. An unwanted non-violent sexual advance by a woman to a man would not be regarded as justification for killing on provocation therefore, neither should a unwanted non-violent sexual advance from a man to a man. By allowing provocation as a defense to killing based on unwanted non-violent homosexual advances establishes that hetrosexuality is by law - given greater value. The Amendment was to explicitly state that gay people should be treated equally and that the government criminalizes ‘any attack on any person that occurs as a result of that person’s sexual preference.’ Prospectively, Australia lags in LGBTI community rights as it still prohibits gay couples from adopting children, gay marriage, so on. These legal standards lack consistency and set a very low principle of tolerance for the LGBTI community.

Moreover, a founding principle of society is that each individual has the right to a defense.Violent anti-homosexual behaviour leading to murder is not common in Australia. In New South Wales since Green v R, there have only been two cases where more ambiguous evidence of an aggressive or violent homosexual advance has been accepted as provocation: R v Marlow [2003] NSWSC 1130; R v Ladd [2001] NSWSC 1055. Therefore, the argument that in principle every person has a right to a defense and the vast majority of persons would be without a defence is illogical.
Episode II: Attack on the conditions

Amendments to s 304 of the Criminal Code affect the rights and liberties of individuals. This is particular as the parts of the defence that operates to reduce murder to manslaughter is removed; and the penalty for murder is mandatory life imprisonment. The proposed amendment reflects necessary community expectations, that other than in circumstances of an exceptional character, if the sudden provocation is based on an unwanted sexual advance to the person a partial one sided defence of provocation to murder is not valid. Moreover, it is notable that the amendments are ‘unfair’ to a homophobic killer that was provoked based on non-violent sexual advances; however, based on the absurdity rule it is farfetched to suggest that the LGBTI community should be subject to such violence. Moreover, sufficient regard is given to the rights and liberties of individuals and in this circumstance, their sexual preference. Conversely, principles of proportionality are observed throughout the Criminal legal system; however, the legislation excuses sexual harassment for gratification on a ‘balance of proportionality’ that murder is far more serious a crime.

Episode III: Revenge by the Sentencing

The significance of this amendment is changing the defence that operates to reduce murder to manslaughter. The importance of this separation are sentencing principles. Murder charges in Queensland call for a mandatory life imprisonment. Sentences have three main objectives; which are to reform, deter and retribute. These amendments establish that killing on provocation based on unwanted sexual advance to the person, other than in circumstances of an exceptional character, will be prosecuted with the highest level of criminal intent. Moreover, general protection of the community is a vital aspect to sentencing. The amendments characterizes violent behaviour towards the LGBTI community as a threat to all Queenslanders.

Episode VII: The force awakens

Rules reflect the broader concepts that govern our society. Principles and policies reflect community standards. Together they present valued pillars of society. Such pillars include the right to equality under the law. Historically anti-homosexuality could be astonishing but like dissenting judge Kirby said in 21 century homosexuality should not be shocking. Outcasted behaviour is produced by power structures not by an essence of truth. Created by regime of power that affirms conventional reality and forces people that have diverted, towards accepting homosexuality in modern Australia.

Episode VIII: The Last Jedi