An End to ‘Gay Panic’


Words || James Booth

The American pride season has come to an end, and with it came news that New York will become the sixth American state to ban the Gay and Trans panic defences. These historic defences have been used in the courts as a form of provocation, ask the jury to determine whether a victim’s gender or sexual identity influenced the defendants actions. 

This means that upon learning a victim is Trans+, or should a Gay person allegedly proposition a straight defendant – the law has historically justified the beating of these people, and in some instances their murder. Such as the historic case of Matthew Shepard, an openly gay Wyoming college student who was beaten and left hanging on a fence post by two men in 1998. One of the defendants argued that he acted out of fear generated by an alleged sexual advance by Shepard…you heard that right, the law allowed a defendant to justify beating an individual and leaving them to die on a fence post as a valid response to an alleged sexual advance.

In Australia this defence became known as the Homosexual Advance Defence (‘HAD’), and arose through the common law created by Judges. The legal argument is reliant on provocation, so that a person who kills another person as the result of an unwanted sexual advance which causes them to lose control their sentence may be reduced from murder to manslaughter. This gives a lesser penalty, and allowed some defendants to avoid some mandatory sentences depending on the state or territory.

The first instance of the gay panic defence being successful was in Victoria, when 22 year old Malcolm Green killed his friend Donald Gilles in Mudgee, NSW after he had drunkenly made a sexual advance on Green. Green reacted by punching his friend roughly 35 times, stabbing him 10 times with a pair of scissors and slamming his head repeatedly against a wall. Justice Smart in this case stated that “it must have been a terrifying experience for G [the perpetrator] when the deceased persisted”. When this case would reach the high court, Justice Kirby – the only gay judge on the High Court – objected to the majority’s decision in favour of Green.

Reporting for SBS Sexuality, Ben Winsor notes that 13 defendants succeeded with this defence in New South Wales between 1993-1995. Furthermore, Lucy Cormack reporting on the 26thJune 2018, noted that a review into 88 suspicious deaths in NSW between 1976 and 2010, revealed that almost a third were the result of crimes involving suspected or confirmed gay hate bias. Which leads one to believe that the Gay Panic defence is a symbol of deeper sociological bias against predominantly Gay Men within Australia’s law. 

Male homosexuality was criminalised Australia wide until 1975, in which South Australia became the first state to decriminalise homosexuality and Canberra following suit in 1976. Victoria wold decriminalise homosexuality in 1980, but introduce a poorly worded ‘soliciting for immoral purposes’ clauses which would see police harassment of gays continue well into the 1980’s. New South Wales would decriminalise homosexuality in 1984, two years after introducing anti-discrimination law, and as such for two years men could not be dismissed for their sexuality but could be imprisoned for it. Western Australia would decriminalise Homosexuality in 1989, and Queensland in 1990.

However it would take 22 years from South Australia’s decriminalisation of homosexuality for Tasmania to join the rest of the country. The state continued to criminalise gay men for their sexuality until the High Court case of Toonen v Australia, in which a gay activist took the matter on the basis of International human rights obligations. Male homosexuality would not be fully decriminalised in Australia until the 13thof May 1997.

Unfortunately the HAD would be reformed in a much similar fashion. Reforms to provocation more generally barred the defence’s use in Tasmania in 2003, Victoria in 2005 and Western Australia in 2008. The defence was abolished all together in the ACT in 2004, and the Northern Territory in 2006. In NSW the defence was not officially abolished until 2014, and Queensland did not legislate against the defence until 2017.

The Gay Panic defence is still in force within South Australia, however the state is set to abolish the Gay Panic defence from its criminal justice system by the end of 2019. This comes after two reports by the independent South Australia Law Reform institute, and will encompass reforms to provocation beyond the Gay Panic defence. This reform will be landmark and see this homophobic law be finally abolished within Australia. 

This is just one example of how homophobia against queer men has been entrenched into legal systems over the years. These laws were inherited from English colonisation of Australia, however we have managed to largely overcome them in Australia. There are 72 nations in the world where homosexuality is penalised, 14 of which issue the death penalty for individuals who are gay, and 44 nations have extended their historic laws against gay men to include gay and bisexual women. 

Queer people in Australia are still fighting social and cultural implications from our sexuality in 2019, LGBTQI+ youth are more likely to be homeless, our Trans+ and Intersex communities still face greater discrimination than their cisgendered counterparts, queer topics are still seen as too sexual for school curriculums, intersex children are still operated on at birth to assign them an endosex gender, and I could go on.

These are just the tip of the iceberg, when you have proposed religious freedoms legislation that wishes to entrench a right to discriminate against Queer people for religious institutions. Homophobia comes from a fear of the unknown, when it enters into our law it creates injustice for minorities – for what? Living authentically as themselves? Not fitting into our society’s “traditional” understandings of what is “normal”. Even if you aren’t a member of the queer community it should make you upset that by virtue of being different from you, someone is viewed as a lesser person by some of our law makers – people have never been trying to force some agenda on the rest of society, they’ve always just wanted the freedom to live as who they are.

2019 will see the end of the Gay Panic defence in our legal system, and I hope this heralds further reforms and protections for minorities.