The “Gay Panic” Defence- A Defence to Murder

The ‘gay panic’ defense – still being used in Australia today.

Just as gay people are winning the fight for equality and acceptance in many places around the world with same-sex marriage legally recognised in currently 15 countries including: Canada, Argentina, Belgium, Brazil, France, South Africa, Portugal, Denmark, etc.; there is a law in Australia that is, according to News.com.au, “holding Australia back” when it comes to homosexuals being treated equally in the eyes of the law. Although abolished in states like Victoria and Tasmania and amended in NSW, the gay panic defence (a tenet of provocation law) can still be used by defendants in South Australia and Queensland.

Take for example the Lindsay and Negre case. In 2011, Michael Lindsay, 31, punched, kicked and stabbed Andrew Negre multiple times and left him discarded in a wheelie bin claiming he was provoked into killing him because Negre had come on to him repeatedly. Lindsay was convicted of murder and sentenced to 23 years in prison. However, during a successful appeal in early April of this year, the charge was revoked and a retrial ordered by the High Court of Australia, the court finding that the gay panic defence could still be argued.

When can the ‘gay panic’ defence be used?

According to the ‘gay panic’ defence or homosexual advancement defence, if someone of the same sex hits on you, a charge of murder can, if defence is successful, be downgraded to manslaughter. This defence excuses the defendant from his or her crime because in the eyes of the law, such an unwanted sexual overture could cause the defendant to panic and temporary lose mental capacity as his or her ‘honour’ was challenged, and such an advancement would be a defensible provocation to murder.

Opponents of the ‘gay panic’ defence

Basically what the gay panic defence is saying, according to comedian and gay rights campaigner Tom Ballard, is that killing someone just because they are homosexual is less of a crime than someone who is not.

Rev. Fr. Paul Kelly, a Catholic Priest in Brisbane has made it his mission to abolish this archaic law through a Change.org petition that currently has well over 246,700 supporters. He will be presenting this petition to government officials in hopes that decision makers will eliminate this “gay panic” law as a partial defence for murder in Queensland and South Australia.

As Mark Thomas, a barrister on the management committee of the LGBTI Legal Service Inc., points out in Vice.com, the “gay panic defence seems to suggest that homosexuals are in some way less entitled to the protection of the law than others.”

Those in favour of using the gay panic defence

The Law Society supports gay panic defence. According to AustralasianLawyer.com, Rocco Perrotta, president of The Law Society of South Australia, reportedly wrote a letter last June to the Legislative Review Committee, arguing that the “defence should remain available to accused murderers.”

Perrota’s argument is that the available defence is not about homosexuality, but rather it is about there being a defence available for those who “lose complete control of their actions when provoked.” He says “there should remain provision for an alternative offence to murder to be considered for some cases of unlawful killing which, unlike murder, are not premeditated” such as if a woman who has been physically and psychology abused by her spouse for years finally ‘snaps’ and stabs him in the neck with a butcher’s knife.

Attorney-General Yvette D’ath also feels the defence is still appropriate as long as more than just merely an unwanted sexual advance is used as provocation for murder.

Others however feel that as long as the gay panic defence is still on the books, it makes Australia appear bigoted and homophobic. They feel that people who kill others just because they were supposedly provoked by someone of the same sex does not justify letting him or her get away with murder.