Greens Reintroduce Bill to Ditch ‘Gay Panic’ Defence

“The Government tried to tell me it was a thing of the past – or that it was a common law defence only – yet last week a South Australian case where the prosecution sought to rely upon the ‘gay panic’ defence went before the High Court.

South Australia must follow the lead of other states and do away with the archaic ‘gay panic’ common law defence, Greens Gender & Sexuality spokesperson Tammy Franks MLC said today.

Ms Franks introduced a Bill to amend the Criminal Law Consolidation Act 1935 this afternoon in a bid to ensure the murder defence that falls under the suite of provocation defences can no longer be relied upon.

“Shockingly, this homophobic defence is still being utilised in South Australia today,” Ms Franks said.

“We’ve heard it described as a ‘medieval murder’ defence and indeed it is.

“The idea that a common law defence exists where a man who has killed another man could have his charge downgraded from murder to manslaughter because the victim made an unwanted, non-violent homosexual advance towards him is appalling, yet this partial common law defence is still being relied upon in 2015.

“This provocation defence only applies if a man has killed another man. It doesn’t apply if a man makes a non-violent sexual advance towards a woman, or if a woman makes a non-violent sexual advance towards a man or woman.

“I also welcome the Chair of the Legislative Review Committee’s move to urgently reopen their inquiry into my previous Bill; we need swift action on this.

“The Government tried to tell me it was a thing of the past – or that it was a common law defence only – yet last week a South Australian case where the prosecution sought to rely upon the ‘gay panic’ defence went before the High Court.

“Now South Australia and Queensland are the only states where this defence hasn’t been scrapped, and Queensland’s announcement they’ll dump it this year means South Australia is lagging behind when this common law defence can be easily removed.

“I’ll be urging all members of Parliament to support this important legislation,” Ms Franks concluded.

Background: The partial common law defence to murder known as the ‘homosexual advancement test’ was established in the case of Green v The Queen in 1996. In that case a man, Green, stabbed his friend to death with a pair of scissors after an apparently unwanted, non-violent sexual approach. Although Green was initially sentenced to murder for a crime that involved hitting the victim 35 times, banging his face against a wall and stabbing him 10 times with scissors, this sentence was able to be downgraded to manslaughter because of the existence of the ‘gay panic’ defence.

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