The “gay panic” defence allows South Australian courts to demote a murder conviction to manslaughter, if the defendant can prove they were provoked to violence or assault by unwanted homosexual advances.
South Australia has been a progressive example in terms of LGBTQ+ rights. It was the first state to legalise equality under criminal law, while repealing homosexual offences and stated 17 was the age for consensual acts to occur. In the modern day, South Australia allowed couples to enter domestic partnerships since 2007 which progressed to official registration by 2017.
Now, the “gay panic” defence, more formally known as the provocation defence, is the legislation on track to be scraped by the Australian state. The act itself isn’t a legally upheld law but has successfully established itself in High Court cases enabling it to become a successful defence.
The rule itself is not something that stemmed from Australian law, but a strategy inherited from Britain.
“It was considered as a bit of a half-way ground, where somebody shouldn’t really be put to death for murder, but they shouldn’t be not guilty either,” former criminal lawyer and University of Adelaide staff member Kellie Toole explained.
“It’s very much considered a concession to human weakness, but it really is very much a concession to male violence.”
While the rule might be culturally and legally frowned upon, it hasn’t stopped it from being used. A recent example of the “gay panic” defence came into play a decade ago on April 2011. The rule was used and successfully argued in defence of Michael Lindsay who killed Andrew Negre and left his body in a wheelie bin. Due to the “gay panic” rule, Lindsay’s lawyers were able to use the law to justify his horrific act of violence as a provoked act, based around unwanted sexual advances.
The Court of Criminal Appeal found that there was “no reasonable jury could fail to find that an ordinary person could not have so far lost his self-control as to attack the deceased in the manner that Lindsay did.”
The defence has been used four times in the last decade in total with the most recent occurrence in 2015, according to the South Australian Rainbow Advocacy Alliance campaign group.
Speaking on the movement to scrap the law, Attorney-General Vickie Chapman described the law as “outdated” as well as calling it “difficult to understand and, in certain cases, downright offensive – most notably in the case of what’s become commonly known as the ‘gay panic’ defence.”
However, the Attorney-General also emphasised the law falls under an “incredibly complex area of law” and can be reserved for “exceptional circumstances” such as if a victim retaliates after suffering prolonged domestic abuse.
An online petition has recently been circulated pushing for LGBTQ+ people to be protected from hate crimes and for “the South Australian Parliament is about to consider legislation to repeal the outdated and demeaning so-called ‘gay panic’ murder defence.”
New Zealand banned the use of the legal argument in 2009 and there has been an increase of US states who are also repealing the defence. Washington state became the 10th state to ban the “gay panic” (and “trans panic”) defence in murder trials.