The ‘gay panic defence’ is a legal argument used by defence lawyers around the world to downgrade murder charges on the basis that the defendant was ‘provoked’ into homicide by a sexual advance from the victim.
While you might expect such situations to be quite rare, a review of case law shows it to have been depressingly common. In a surge of cases between 1993 and 1995, at least 13 defendants succeeded with this defence in New South Wales alone.
The legal argument will likely be used in an upcoming retrial of a 2011 homicide in South Australia, and was successfully used after two men bashed a man to death in 2010 in Queensland.
The defence remains available for killers in South Australia.
The defence, known in some legal circles as the ‘homosexual advance defence’, is an unconventional form of the ‘provocation defence’ which arose through judge-made case law.
That legal argument holds that if a person kills another person as a result of provocation which causes them to lose control, then a lesser charge of manslaughter, rather than murder, is appropriate.
Manslaughter is not only a lesser charge, but also attracts a lesser penalty. It also allows defendants to avoid some mandatory sentences, depending on the state or territory.
The law on provocation was classically explained by Justice Devlin in the 1949 English case of R v Duffy.
Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.
In that case, Ms Duffy had killed her husband with an axe while he was sleeping. The alleged provocation was years of abuse and fear for the welfare of her child.
Ms Duffy failed to have her conviction brought down to manslaughter, but in other so-called ‘battered women’ cases the defence has been successful.
In gay panic defence cases, the defence must convince a judge or jury that the victim’s advances or displays of homosexuality were such that an ordinary person, in the accused’s position, could suffer a sudden and temporary loss of control at the point when the homicide took place.
In some cases, defendants have said that because they were sexually abused as children, the victim’s advance is especially triggering.
The killing of Donald Gillies
It's thought that the first instance of the gay panic defence being successfully used in Australia was in the Victorian case of R v Murley in 1992.
But it wasn’t until the 1997 case of R v Green made it to the High Court of Australia that it became established national law.
In that case, 22-year-old Malcolm Green killed his friend Donald Gillies in Mudgee, NSW.
Green claimed his friend had come into his bedroom after they’d both been drinking, slid into bed, and made a sexual advance. The alleged touching was described as amorous, not forceful – the defence said it was persistent.
Green says he reacted by punching his friend roughly 35 times, "until he didn't look like Don to me".
He then stabbed him 10 times with a pair of scissors. He slammed his head repeatedly against a wall, a crime-scene examiner said.
"Yeah, I killed him, but he did worse to me," Green later told police. ”He tried to root me."
Green’s lawyers said that his sisters had been sexually abused by their father, so he was especially sensitive to unwanted advances. The judge said that was irrelevant to the issue of provocation and the jury found Green guilty of murder.
Green’s lawyers lodged an appeal. By a majority of two to one, the second court said the judge should have allowed the abuse evidence, but that it wouldn’t have changed the outcome anyway.
"It is easy to see that many an ordinary person in the position in which G was when Mr Gillies was making his amorous physical advances would have reacted indignantly,” Justice Priestly said. “I do not think, however, that the ordinary person could have been induced by the deceased's conduct so far to lose self-control as to have formed an intent to kill.”
Justice Smart disagreed with the other two judges, and strongly condemned the victim’s alleged actions.
“It must have been a terrifying experience for G [the perpetrator] when the deceased persisted,” Justice Smart said.
“He was trying to coerce G into providing him with sexual gratification. The past history of G, including the family history of the father's sexual assaults, must not be overlooked. The provocation was of a very grave kind,” the dissenting judge said.
“Some ordinary men would feel great revulsion at the homosexual advances,” he said “some ordinary men could become enraged and feel that a strong physical reaction was called for. The deceased's actions had to be stopped."
While Justice Smart didn’t manage to convince his fellow judges in the Court of Appeal, his arguments ultimately won the day.
The High Court
After losing their first appeal, Green’s lawyers appealed to the High Court, which agreed with Justice Smart by a majority of four to one.
“On G's evidence and on the statements he made to the police, he was grievously incensed and insulted by the conduct of the deceased,” Chief Justice Brennan wrote.
Justice Kirby – the only gay judge on the High Court – objected to the majority’s decision.
He said that such cases appeared quite common, both in Australia and overseas, but that no jury acting reasonably could fail to convict Green of murder.
“He was a 22-year-old adult male living in contemporary Australia,” Justice Kirby said, noting that the younger man was clothed at all times, was stronger than the victim, and could have left at any time.
“The conduct of the deceased, however unwanted and offensive to G, was not of such a nature as to be sufficient, objectively, to deprive a hypothetical ordinary 22-year-old Australian male in the position of G of the power of self-control,” he said.
“This Court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill,” Justice Kirby wrote.
“Such a message unacceptably condones serious violence by people who take the law into their own hands,” he said.
But despite his protests, the majority nullified the original trial and legitimised the use of the gay panic defence across the country.
Overruled by parliament
The gay panic defence remained the law of the land until a series of reforms in the early 2000s.
In 2003 Tasmania's parliament brought in a range of changes to the defence of provocation, which essentially barred the ability for the gay panic defence to be used. Similar reforms in Victoria in 2005, Western Australia in 2008 and Queensland in 2017 have blocked the defence.
Legal changes in the ACT, NSW and Northern Territory have been more targeted. All three parliaments have passed laws which explicitly state that a "non-violent sexual advance" cannot, on its own, constitute provocation.
South Australia has called for a review into the law, but the South Australian Law Society has argued that the defence should be retained.
“It is unfortunate that provocation has been labeled the ‘gay panic’ defence, as the Law Society’s objection to abolishing provocation is not about homosexuality,” Rocco Perrotta, president of The Law Society of South Australia, told the Australasian Lawyer in 2015.
“The current law recognises that people can lose complete control of their actions when provoked. An example would be for an unsolicited sexual advance that triggers flashbacks of child abuse, thus making the object of the advance to react in an irrationally violent way," he said.
“Another example is a woman who has been subject to sustained physical and psychological abuse at the hands of her partner, and after another habitual bashing finally ‘snaps’ and kills him.”
South Australia is the last state in which the defence remains available to killers.