Content warning: the following story references homophobia, transphobia, violence and head injury.
Earlier this week, South Australia abolished the use of gay panic as a legitimate defence in court, meaning that the outdated and harmful defence towards acts of homophobia is no longer a viable legal defence in Australia—the justice system said, “Oh, I’ve had it, officially!!!”
Legally referred to as the “homosexual advance defence,” the defence is a type of provocation defence, which is used to justify in court a person killing another person under the argument they were provoked to the point of losing control, whether by years of abuse, self-defence or other causes.
When successful, a provocation defence states that the defendant should be charged with a lesser charge of manslaughter, instead of the more intense charge of murder. But, when it comes to homosexual advance defence, the defence must convince the jury that the victim who was murdered sexually advanced or displayed acts of homosexuality that would make any ordinary person temporarily act out of control. Per SBS, these defendants often add that the experience triggered a past traumatic experience with sexual abuse at a young age, but also completely and unfathomably justifies acts of homophobia, transphobia and the literal killing of queer people under the guise of someone’s authentic self making the killer “uncomfortable.”
The first sign of the gay panic defence being successful in Australia was in the Victorian case of R v Murley in 1992, before it later became an established national law in 1997 via the R v Green case. It should be noted that these laws and provocational defences came after the AIDS epidemic hit Australia in the early 1980s, where gay men and sex workers—who were often trans women—significantly suffered and years before the government—namely, then treasurer and former Prime Minister Paul Keating—took action and offered any AIDS-related support services in 1987.
According to the ABC, legislation calling for a revision of the provocation defence was passed in South Australian State Parliament on Tuesday. In the lead up to it, South Australia’s Law Reform Institute called out the gay panic defence in two separate reports, before calling for it to be abolished by the State Government in 2018. The report found that in the last decade, the law had only been used four times, with a tragic example being the case of Andrew Negre.
Negre, a 37-year-old man, was murdered in 2011 by Michael Joseph Lindsay, who dumped his body in a wheelie bin after he made a joke offering to have sex for money. Lindsay’s lawyers tried to claim a provocation defence and called for a retrial, but he was charged with murder on both accounts and sentenced to a non-parole period of 23 years. Notably, the last state to abolish the homosexual advance defence, Queensland, did so in 2017.
As South Australian Attorney-General Vickie Chapman told the ABC, the gay panic defence in Australia “is at odds with community expectations that regardless of the degree of provocation, ordinary people should not resort to lethal violence.” It’s true, no decent human being resolves conflict—no matter how big, small or personal it is—with violence, but the use of provocation defence should still be applicable for victims of long periods of abuse, as the reform of the defence has decided.
While it certainly doesn’t absolve the years of homophobic and transphobic-charged deaths in Australia in the last 25 years, abolishing the gay panic defence is a step in the right direction in eliminating outdated anti-LGBTQIA+ laws, and improving the lives of queer people across the country. It’s important, in these moments, to remember how we got here and that we and the next generation can grow up without fear of our legal system justifying violent acts against us, thanks to the hard work of the generations before us and the very people who fought for our rights at the first Mardi Gras in 1978 and the trans women of colour before that.
For more on recognising your queer privilege and knowing your queer history, check out our interview with nonbinary activist and actor Zoe Terakes.
Header image source: Don Arnold (Getty).