Below is my speech on the Crimes Amendment (Provocation) Bill which will end the so called "gay panic defence"
I support the Crimes Amendment (Provocation) Bill which will exclude the use of provocation as a partial defence in cases of gay panic or where a spouse is killed in response to infidelity or a relationship breakup.
The provocation defence can downgrade a conviction from murder to manslaughter if the accused can prove that the victim caused them to lose self-control and kill as a result of insulting words or conduct. Provocation is judged in terms of whether a reasonable – or ordinary – person would lose control in such a situation.
Manslaughter can attract a smaller sentence than murder and the Upper House Partial Defence of Provocation Inquiry was set up in response to the use of provocation in a number of cases where husbands killed their wives because of a relationship split, criticism of their sexual abilities, or infidelity. In these cases, violent killings attracted sentences less than 10 years because manslaughter convictions were delivered instead of murder.
The inquiry also looked at how provocation can be used as a gay panic defence because it is open to interpretation that a reasonable person can become panicked by non-violent sexual advances from a gay person to the extent of taking their life.
The potential is real and highlighted in the 2008 case in which an intellectually disabled man was stabbed to death by a youth in a Narabeen toilet block. The youth was convicted of manslaughter instead of murder by using the partial defence of “excessive self defence”. It was argued that the victim made sexual advances that led the accused to be panicked. While the defence used in this case was not provocation, its application through use of being “panicked” in response to a nonviolent homosexual advance is similar to the application of the “loss of self-control” in provocation.
There is currently no guidance in criminal law that prevents the application of provocation to non-physical or romantic advances and the case I have just described demonstrates that there remains an acceptance that straight reasonable men can panic and react violently to non-violent sexual advances from gay and bi men and trans and intersex people.
This treats the lives of gay men and gender diverse victims as less than that of others. It treats male homosexual romantic advances as so offensive to justify murder while treating the equivalent heterosexual advances as merely unwanted and awkward.
This is discriminatory and condones homophobia at its most heinous. I welcome the bill’s specific exclusion of “non-violent sexual advance” from the application of provocation, which will prevent its use in gay panic cases in future. LGBTI advocates have long been calling for this change and I acknowledge the work of the Gay and Lesbian Rights Lobby and the Inner City Legal Centre.
It is vital that changes to provocation continue to allow for its use by victims of long term domestic violence who kill their attacker out of fear. I believe that by allowing provocation in cases where the deceased’s conduct was a serious indictable offence, which would include beating, stalking and intimidating, the bill protects its application by domestic violence victims.
I ask the Attorney General to address the Bar Association’s concerns that because the proposed extreme provocation defence requires the deceased to actually commit a serious indictable offence, situations where the deceased tells the accused of having committed or intending to commit a serious indictable offence are excluded. The Bar Association recommends that the application of extreme provocation include the “commission” of a serious indictable offence or a “representation” that a serious indictable offence has been or was to be committed.
The bill prevents unfair application of the partial defence of provocation to cases where the accused violently responds to a non-violent homosexual advance and to spouse killings due to infidelity and relationship breakups.
I would like to commend the work of the Select Committee on the partial defence of provocation on their inquiry which lead to this bill, and acknowledge the contribution of all of its members includieng the Hon. Rev Fred Nile and the Hon. Trevor Khan.
This is an important bill and I commend it to the house.