• The judge says the issue is a "matter of conscience". (OJO Images RF / Getty Images)Source: OJO Images RF / Getty Images
The glacial, meandering road to equality.
Ian Cuthbertson

19 Oct 2016 - 4:16 PM  UPDATED 21 Oct 2016 - 3:38 PM

The so-called Gay Panic Defence - known in Australia as the Homosexual Advance Defence (HAD) - involves the archaic notion that a romantic or sexual advance from a gay man is so overwhelmingly unpleasant that he literally loses his mind and enters a state of violent temporary insanity known as 'homosexual panic'. In turn, this leads him to act in a recklessly murderous fashion, one which would not have been part of his character otherwise.

Technically, while HAD cannot be found in the legislation, its entrenchment in case law apparently gives it the force of law. In fact, it belongs under the umbrella term of 'provocation'the same set of laws that sometimes allow women who have been abused for years by violent husbands to walk free after killing them. Therein lies the legal wrangle. 

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While no sane person could compare a light pat from a gay man’s hand on a straight man’s thigh to the years of sustained violence, rape and mental torture inflicted by some men on their wives or girlfriendsboth are considered provocation under the law. To make matters more confusing, the law now varies across Australian states and territories. In 2003, Tasmania abolished provocation entirely. Western Australia and Victoria have since repealed the defence of provocation and New South Wales, the ACT and the Northern Territory have excluded non-violent homosexual advances from its ambit. At this time, Queensland and South Australia are the only Australian jurisdictions to have not repealed or reined in HAD.

The problem with allowing HAD to remain as a viable defence is that it effectively allows a heterosexual man to get away with murder because of a real, or imagined, sexual advance from someone he assumes is gay. Every time a reduction in sentence is achieved due to HAD, dangerous stereotypes - such as that homophobia is not just OK but is actually intrinsic to heterosexual masculinity in Australia - are perpetuated. In turn, a cycle of bullying continues in schools, and workplaces, at sporting events and in pubs.

However, there are signs that the defence could soon be relegated to the dustbin of history. In 2008, when Father Paul Kelly, parish priest of the Queensland town of Maryborough, found Wayne Ruks almost beaten to death in his church yard (Ruks died of his injuries soon after) he was appalled that the two men responsible had their sentences reduced from murder to manslaughter, claiming that the victim had made homosexual advances to them.  

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Reverend Paul Kelly of the Brisbane Archdiocese has launched a petition calling for the abolition of the gay panic legal defence in assault and murder trials.

Video footage screened at the trial showed no evidence of homosexual advances. Outraged, Kelly started an online petition via change.org to eliminate the defence of gay panic. At the time of writing, the petition has more than 286,000 supporters. The Palaszczuk government has been making positive noises since at least February about abolishing HAD, but for some reason progress has been glacial. In Adelaide last month, premier Jay Weatherill said he was committed to abolishing the ‘gay panic’ aspect of provocation. However, the details of this abolishment will be left up to the SA Law Reform Institute, due to deliver its report into the matter in the coming months. Meanwhile, Rocco Perrotta, president of The Law Society of South Australia, reportedly wrote a letter to the Legislative Review Committee in June arguing that the defence should remain available to accused murderers. Change, it would seem, is a finger snap in some states and a tug of war in others.

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