The only other state where the defence remains, Queensland, has promised to introduce legislation this week to remove the legal anachronism which allows an accused murderer to argue that a sexual approach from a same-sex victim represents “provocation” and thus a mitigating factor.
South Australian moves to address the issue remain on hold, while a long-running court case centred on the issue of provocation plays out. Weatherill believes the defence doesn’t exist under SA’s common law, despite the Law Reform Institute recommending the possibility of the defence being used be addressed.
Weatherill announced late last week that his long-mooted apology would happen this Thursday – World AIDS Day.
He said the apology for community members “wronged by historical laws” followed the passage of four bills through the House of Assembly “that will, if passed by the Legislative Council, amend much of the offending legislation”.
The bills would make it easier for South Australians to changed the gender registered on their birth certificate, allow same sex couples who are either unmarried or who have married overseas to have their relationships legally recognised in SA, extend surrogacy agreements to non-heterosexual couples, and give same-sex couples the right to adopt children in SA.
However, moves to abolish the “gay panic defence” remain on hold.
A spokesperson for Attorney-General John Rau told InDaily that the Government was waiting on the resolution of a long-running murder case before making any decisions.
“Parliament’s Legislative Review Committee has been looking at the Criminal Law Consolidation (Provocation) Bill 2013 which would remove a defence of provocation based on a sexual advance by a person of the same sex,” he said.
“The committee reported in March this year saying it would not be prudent to make a recommendation until completion of the case against Michael Joseph Lindsay. In August, Lindsay – charged with the stabbing murder of Andrew Negre, who was dumped in a wheelie bin –won a right to appeal against conviction in his retrial.”
Lindsay has twice been convicted of Negre’s murder. The High Court last year quashed the first conviction because the defence of provocation had not been properly explained to the jury, and it ordered that Lindsay be re-tried. He was again found guilty by the retrial but in August won the right to appeal, with provocation issues again at the forefront.
Greens MLC Tammy Franks, who has attempted to remove the gay panic defence, said Weatherill was premature in offering his apology.
“I certainly think you should maybe finish the job before you take credit for a job not yet done,” Franks told InDaily.
University of Adelaide law lecturer Kellie Toole says she can see some sense in waiting for the Lindsay case to be resolved, however she points out that the longer the defence is on the statute books, the more opportunity arises for other defendants to use it.
She said the Government had previously argued that the defence was rarely used, before the Lindsay High Court case made everyone stand up and take notice.
“That was one of the reasons they didn’t do anything pre-Lindsay and the Lindsay case came as quite a shock,” she said.
“The law should be a statement of the values of the community – rather than saying ‘it’s not going to be anachronistic and offensive all that often so let’s just leave it there’.”
Toole said abolishing the defence would fit with many of the Government’s objectives such as being tougher on domestic violence, supporting LGBTIQ people, and being tough on crime generally.
“It would tick quite a few significant boxes if they would just simply abolish it,” she said.
The Government’s agenda on reforming discriminatory laws has largely been set by the Law Reform Institute at the University of Adelaide. It produced an audit of legislation that discriminated against LGBTIQ people, and that report recommended the removal of the gay panic defence.
Institute director Professor John Williams said the organisation was still working on a report on how to fix the problem, but it didn’t want to release its recommendations while the Lindsay case was before the courts.
“We still stand by the original audit finding that it should be removed, but it’s just what that removal should look like,” Williams said.
He said the broader issue was whether a defence of provocation should exist at all within common law in South Australia. While the “gay panic” defence could be simply removed, such a move could still raise the possibility of defendants raising “proxy” arguments of provocation – so they could argue, for example, that rather than being provoked by a sexual advance, their actions were spurred by some other provocation.
“This is one area that everyone wants to get right, but there are different ways to do it,” he said. “It’s more complex than just removing that section.
“The legal question is whether provocation generally should be in the common law.”
Despite the institute’s audit, Weatherill told InDaily that he didn’t believe the defence existed.
“In our view, there is no gay panic defence and we are awaiting the outcome of a case currently before the courts before we have a legislative response,” he said in a statement.
“It is worth remembering that the so-called gay panic defence is part of the same law of provocation which is relied upon by women in domestic violence situations.”
Meanwhile, Franks has also slammed Weatherill for choosing World AIDS Day to make his apology, when she said the State Government had a very poor record in supporting gay men’s health including de-funding the AIDS Council which was forced to close in 2013.
Franks said SA was lagging behind other states in supporting gay men’s health, questioning why the state had not taken up a Victorian offer to participate in a trial of PrEP (pre exposure prophylaxis) – a promising new tool in the fight against HIV.
“Studies from around the world have shown that if PrEP is taken daily, it prevents HIV in advance to any potential exposure,” Franks said.
“Australia has committed to eliminate new cases of HIV by the year 2020 – a goal made possible if PrEP is made more available to South Australians in targeted communities.
“SA was invited to participate in the Victorian trial but hasn’t taken up the offer.
“In the meantime this is the only state with no AIDS Council and we saw SA Government support for the Positive Living Centre withdrawn over past years… This will be the first World AIDS Day where the various services no longer exist.”
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