However, it has recommended that action be delayed until it completes a new inquiry into whether the entire defence of provocation should be abolished in South Australia – a move that would remove the need for specific action in relation to “gay panic”.
South Australia is often claimed to be the only Australian jurisdiction where “gay panic” remains as a potential defence against a murder charge.
Premier Jay Weatherill has said the notion of such a defence is offensive, but has also argued that he doesn’t believe it exists in South Australia. The Government has also had the issue on hold to avoid interfering with a long-running murder case, which involved argument about provocation. That case has now been finalised.
The Government asked the Law Reform Institute to examine the issue and, in its “stage one” report released today, it argues that the defence does exist in SA as part of the complex and controversial law relating to provocation.
Releasing the report today, institute director Professor John Williams said “the current law of provocation indirectly sanctions lethal violence against those who seem to exhibit homosexual behaviour”.
The report recommends that any part of the provocation law that discriminates on the basis of sexual orientation and/or gender should be removed.
South Australian law allows the partial defence of provocation, which can lead to the downgrading of a murder charge to manslaughter, if a victim is found to have provoked a defendant.
This defence is referred to as “gay panic” where a victim has allegedly made homosexual advances towards a defendant. It is often reported that this aspect of provocation has been abolished in every state, bar South Australia, although Williams says the Queensland law still allows is in “exceptional circumstances”.
New South Wales has also attempted to excise “gay panic” from its provocation defence, while other Australian states and territories have simply abolished provocation – an option the institute will consider next.
Williams said today the current law was discriminatory not only against gay people, but women as well.
He argues the defence is most commonly used by men, who argue that their partner’s infidelity, for example, represented provocation.
The law should be changed, the institute finds, to make sure that, at the least, any non-violent sexual advance should “not be capable of amounting to provocation”.
“Provocation is probably gendered,” Williams told InDaily. “While it’s open to everyone, it’s mainly used by men who have killed women.”
Ironically, the Government has argued that it wouldn’t rush to change the defence of provocation, because it was often used by women who have lashed out after being abused by their partners.
The institute has recommended immediate action to fix this issue.
Williams says subjects of family violence should be able to rely on self-defence as a legal argument, rather than provocation.
Self-defence in South Australia must be a response to an immediate threat. The institute recommends changes to the law so that, in cases of family violence, the “actual or perceived threat of violence for self-defence to arise need not be immediate or imminent at the time of the offence”.
The report says “the current law in South Australia fails to adequately reflect the situation of women who experience family violence and who may be driven to kill their abusive domestic partner, or who may be at risk of being killed by their abusive partner. Any reforms in South Australia should also address the situation of those who may kill their abusive partners in the context of family violence.”
“It is fundamental that any reform should also address the gender bias of the current law and ensure that victims of family violence who may kill their abusive partners are not unfairly prejudiced. This accords with SALRI’s wider remit, as it is charged with examining the law to ensure that it operates in a fair and non-discriminatory manner, regardless of gender, gender identity or sexual orientation.”
The report’s 11 recommendations also include:
- Removing any aspect of the current law that discriminates on the basis of sexual orientation and/or gender – to effectively remove the discriminatory “gay panic” aspect of provocation but also address the gender bias of the current law.
- Ensuring that the courts are able to consider the full range of relevant evidence relating to family or domestic violence when determining defences to murder charges and other serious crimes.
- That “family violence” should be given a wide definition and not be restricted to physical violence, and, in keeping with issues of Indigenous kinship, not be confined to spouses or domestic partners.
While the institute has urged immediate action on its family violence recommendations, it has asked the Government to hold off on action in relation to “gay panic” until it finalises its report on “provocation” as a whole.
The institute says its report on provocation will be finalised in the coming months.
It summarises some of the criticisms of the defence, which is seen by some commentators as part of a culture of victim blaming.
“The partial defence of provocation has been the subject of extensive criticism,” it says. “(Legal academic) Andrew Hemming describes provocation as ‘a totally flawed defence that has no place at all in any Australian jurisdiction irrespective of the particular sentencing regime’.
“It is widely asserted that ‘the operation of the defence is gender biased, anachronistic and archaic and promotes a culture of ‘victim blaming’; that the legal test is conceptually confusing, inappropriately privileges a loss of self-control and is difficult for juries to understand and apply; and that provocation can be adequately dealt with at the sentencing stage, as it is in all other criminal offences’. Indeed, the criticisms of provocation are such that all Australian jurisdictions bar South Australia have now either abolished it entirely or at least narrowed its scope.”
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