The “gay panic” defence is the legal argument that an unwanted homosexual advance can cause a perpetrator lose control and kill a person.
South Australia is often claimed to be the only jurisdiction in the country where it remains possible to pursue the partial defence, which can potentially downgrade a murder charge to manslaughter.
Greens candidate Robert Simms told InDaily that “seeing the law condoning gay hate crimes is utterly abhorrent,” adding that the issue was of particular importance in the seat of Adelaide, which contains a significant LGBTIQ community.
“Our criminal law is meant to reflect community standards,” he said.
“When I tell people about this defence being in place, people are horrified and surprised.
“A whole range of other states have got rid of the gay panic defence … if conservative Queensland can do it why on earth can’t South Australia do it?”
Simms, who is gay, urged Liberal Party Member for Adelaide, Rachel Sanderson, who is recontesting the seat, and Labor candidate for Adelaide Jo Chapley to publicly join the push to outlaw the defence.
Both have done so.
“The gay panic defence is very out-dated and should have no place in our legal system,” Sanderson told InDaily.
“I support its removal and a review of the provocation laws.”
Chapley said she was “very supportive of the removal of the gay panic defence”.
Greens MLC Tammy Franks has twice introduced a bill to outlaw the legal argument from murder trials.
Early last year, the South Australian Law Reform Institute found that current SA law “indirectly sanctions lethal violence against those who seem to exhibit homosexual behaviour”.
The Institute’s April 2017 report into reforming provocation defences – of which “gay panic” is one – recommends that any aspect of the current law that discriminates on the basis of sexual orientation and/or gender should be removed, and describes the “gay panic” defence as “outdated, unjustifiable and discriminatory”.
However, it also recommends that any legislation to outlaw the “gay panic” defence should be deferred until the commission hands down its final report, which will consider whether all defences of provocation should be abolished in South Australia.
A State Government spokesperson told InDaily yesterday that it was taking a “holistic approach” to criminal defence law reform.
The spokesperson said it was important to ensure that law still provided some defence for people who commit offences while suffering family violence.
“It is very important no negative consequences arise from amendments and mean women in domestic violence situations could no longer access this component of the law,” the spokesperson said.
“We need to take a holistic approach – which the extensive South Australian Law Reform Institute review currently being undertaken is helping us do.”
The spokesperson acknowledged the Institute’s finding that the “gay panic” defence is offensive and should be removed.
“However SALRI also recommended that no change should be made to the gay panic defence in isolation, until their stage 2 report is completed.”
Chapley added that: “As a long-serving lawyer and volunteer assisting domestic violence victims, the Government is correct to take a holistic approach and ensure this is done properly.”
Premier Jay Weatherill has previously argued that the “gay panic” defence does not exist in South Australia’s common law.
But the report says that the High Court’s decision in relation to Michael Lindsay – who stabbed Andrew Negre to death after he sexually propositioned him – makes clear that the “gay panic” defence remains part of the present law.
It argues that successfully arguing a provocation defence is a “relatively undemanding” task under current law.
“It is enough that there is a reasonable possibility on the facts most favourable to the accused that provocation may arise,” the report says.
“… it is (then) incumbent upon the prosecution to rebut the defence beyond reasonable doubt for an accused to be found guilty of murder.”
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