South Australia weighs move to abolish gay panic murder defence

SA could become the final state or territory in Australia to abolish the murder defense known as “gay panic” if the State Government backs Law Reform Institute recommendations.

• The law used by men as an excuse for killing women
• Another inquiry to settle ‘gay panic’ law
• Found guilty twice but allowed another trial for killing
• Apology for gays, but murder still allowed

THE State Government is considering legal advice to abolish the murder defence of provocation, or “gay panic”.

But the move has proven controversial, with victims groups opposed to a related recommendation to abolish the 20-year minimum jail term for murder.

The options are included in a final report by the South Australian Law Reform Institute which will be delivered this month to new Attorney-General Vickie Chapman.

South Australia is the last state or territory with the “gay panic” law on its statutes. It allows alleged murderers “provoked” by their victims to seek to have their charge downgraded to manslaughter if they plead guilty.

As widely expected, the report recommends the abolition of the gay panic law, but as one option to replace it, finds judges could again have the “politically unpalatable” discretion in sentencing rather than have a 20-year minimum forced on them by law.

Commissioner for Victims’ Rights Michael O’Connell, said he would oppose any abolition of the 20-year minimum.

“The minimum 20-year non-parole term as well as mandatory life for murder must stay,’’ he said.

“The requirement that a murderer who is paroled be on parole for life must stay.’’

The Institute will not comment on its final report, details of which have been revealed by the Law Society which was recently briefed on the findings.

The report makes suggestions on how murders in which there are mitigating circumstances could be treated, without the broader defence of provocation being used:

JUDGES having a complete sentencing discretion for murder, removing the mandatory minimum of 20 years jail.

THE UK system in which murders are divided into categories of heinousness by the court.

CREATING “special reasons” that the court might use to depart from the 20-year mandatory sentence.

SA Deputy Premier and Attorney-General Vickie Chapman. Picture: David Mariuz

A State Government spokesman would not rule any options from the institute report in or out.

“Attorney-General Vickie Chapman is awaiting the final report from the South Australian Law Reform Institute to help inform the Government’s position’’.

Mr O’Connell said “provocation’’ should be abolished as a defence for murder.

As well as using it as an excuse to kill gay people, men often used it as an excuse for killing a wife who was alleged to have been cheating, he said.

To use it in court, the “murderer” must argue they felt so “provoked” by the victim that they lost control and in response killed them, and by pleading guilty can reduce the crime to manslaughter.

“It (began) is a defence intended to stop killers going to the gallows that favoured men who perpetrated violence, especially domestic violence,’’ Mr O’Connell said.

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

Since the proposal to abolish “gay panic” as a defence was first proposed in SA in 2015, the legal profession has argued about how to avoid the harshest jail terms for murders considered less shocking.

Mr O’Connell said any reform acceptable to the entire criminal justice community must include specific protections for victims of domestic or family violence, extreme aggravation and by offenders with cognitive impairment or intellectual disability.