SA’s move to ‘gay panic’ provocation law reform more complicated than it seems

IMPLEMENTING a law change to remove the “gay panic” defence for murder is more complicated than it seems, as Miles Kemp reports.

• SA weighs move to abolish ‘gay panic’ murder defence

AN archaic law that every other jurisdiction in the nation has rejected continues to haunt South Australia’s proud history of nation-leading social reform.

The first Australian state to legalise homosexuality, in 1975, is also the last state where a killer can mount a partial defence to murder by claiming they were provoked by the victim’s unwanted homosexual advance.

This month the South Australian Law Reform Institute will deliver its second and final instalment of the “Provoking Operation of Provocation” report, which offers options to reform, and potentially abolish, the broader use of the provocation defence.

In the first part of its report last year, the institute – whose experts advise the State Government – noted that the gay panic defence “indirectly legitimises and sanctions lethal violence towards people demonstrating homosexual behaviour”.

Although the law would seem to be from an earlier homophobic era, it has been in use only since the 1990s.

It was the 1993 murder of Donald Gillies by his friend Malcolm Green in NSW that effectively instituted the gay panic defence in national case law.

And it was Gillies’ explanation to police that infamously translated the law to popular culture: “Yeah, I killed him, but he did worse to me. He tried to root me.”

In response to the unwelcome advance, he then punched the victim 35 times and stabbed him 10 times.

In 1997, the High Court overturned the conviction on the basis that he was sufficiently provoked, finding him guilty of manslaughter.

Existence of the law is not to say it always works. The last killer to try it in South Australia, Michael Joseph Lindsay, failed to convince the courts that he bashed and stabbed Andrew Negre to death in 2011 because Negre made sexual advances toward him. By September 2016, after a long process, he was sentenced to a minimum 23 years in jail.

In reaction to the 1997 High Court case, the states acted to clarify the situation and change the law of “provocation”.

Consider a woman who has been repeatedly beaten and tormented by her partner, who finally snaps and, in a momentary loss of control, kills her abuser. It would be unjust if she were automatically consigned to a minimum 20-year murder sentence with no option to have the sentence reduced.

SALRI’s first report noted that “the criticisms of provocation are such that all Australian jurisdictions bar South Australia have now either abolished it entirely or at least narrowed its scope”.

“Given that the criticisms of the present law of provocation go beyond the homosexual advance defence, SALRI concludes that any reform should extend beyond removing this aspect of provocation. SALRI considers that wider reform of the present law is necessary,” the report stated.

“In particular, a strong criticism of the present law is that the defence of provocation is gender biased and unjust, namely that it is perceived to unfairly favour male accused (especially those who have killed a female partner) while applying unfairly to women accused of murder (especially those ... subjected to family violence).”

Legal and political institutions have been unable to agree on the details of the wider reform, mainly because at the point when the argument becomes about alleged “provocation” by people other than those in the LGBTQI community, the options make less sense.

Hard as it may be for victims and some in the community to fathom, the provocation law is also a way for the courts to separate murders from killings in which there are extenuating circumstances.

What to do, for example, with a “murderer” provoked by decades of the most extreme family violence.

Law Society president Tim Mellor explains: “The suggestion that a nonviolent sexual advance, without any other factors, could constitute provocation to kill someone, regardless of gender or sexuality, is clearly unsustainable.

“However, there are some defendants, such as the victims of persistent domestic violence, who have a genuine and understandable basis for seeking the reduction of a murder conviction to manslaughter on the basis of provocation.

“Consider a woman who has been repeatedly beaten and tormented by her partner, who finally snaps and, in a momentary loss of control, kills her abuser. It would be unjust if she were automatically consigned to a minimum 20-year murder sentence with no option to have the sentence reduced.”

The excuse of provocation dates to a time when life was cheap and violence common, often with death a partly considered consequence.

“(Long ago) provocation was a defence intended to stop killers going to the gallows that favoured men who perpetrated violence, especially domestic violence,” Commissioner for Victims’ Rights Michael O’Connell explains.

“More recently it has been used to diminish the criminal responsibility of killers of gay men – hence, the common reference to gay panic.”

Mr O’Connell says it is still used in cases of domestic “murder”.

“In its current form, it is misogynist and gender biased,” he says.

Abolition of an excuse to kill gay people is well accepted, but what to do with killers who claim other difficult circumstances has no consensus.

The recommendations in SALRI’s final report range from the unlikely removal of the mandatory minimum of 20 years’ jail for murder to a UK-style system in murders are divided into categories of heinousness by the court.

Most likely, special circumstances will remain, but not for killers who claim they were subject to a homosexual advance.

They will more likely apply to “murderers” who were victims of extreme domestic violence, those who face extreme aggravation, or those who have a cognitive impairment or intellectual disability.

And many interested parties in the legal system will have to be satisfied the abolition of “gay panic” will not have adverse consequences for them.

“Unjust and bizarre outcomes are bound to result from a system that restricts judicial discretion,” Mr Mellor argues.