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A homophobic defence

By Nina Funnell - posted Monday, 8 September 2008


Recently, a Sydney schoolboy who fatally stabbed a 35-year-old autistic man was cleared of murder charges. The 18-year-old, who cannot be named for legal reasons, met the victim, Gerard Fleming, at a public toilet block at Narrabeen on Sydney’s northern beaches.

Not realising that the toilet block was a well known gay beat, the youth responded with extreme violence when Fleming made an unwanted sexual pass at him. The youth, who declared himself a heterosexual to homicide detectives and again to the Crown during trial, claimed he was provoked by Fleming and acted to protect himself, a defence which was accepted by the jury in its manslaughter verdict.

The particular legal defence employed in this case is called the Homosexual Advance Defence (or the HAD). Surfacing in Australian criminal jurisdictions in the early 1990s, the basic premise of the HAD is that if a homosexual man makes an unwanted sexual advance towards a straight man, he is “provoking” that man. So, should a straight man respond by killing that homosexual man, the HAD can be engaged to have the charges reduced from murder to manslaughter.

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As a sexual assault survivor and victim’s rights campaigner, it’s important for me to stress that all people should have the right to defend themselves against unwanted sexual advances - but within reason. And this is precisely why we have self-defence laws.

The difference between self-defence laws and the HAD are significant. For starters, self-defence laws state that whenever possible, a victim should retreat and avoid conflict. If there is no other option the victim is entitled to use force, but “no more force than is necessary”. Violently stabbing a person to death for making a sexuality judgment error or an unwanted advance is not considered an act of self-defence, particularly if there was opportunity to run.

More importantly, self-defence laws are designed to protect the rights of victims who have responded with force to threats of physical or sexual violence, not so-called threats posed by a person’s sexual orientation.

And this is the problem with the HAD. It confuses an actual sexual threat with a “threat” posed by a person’s sexuality or sexual orientation. Moreover, by shifting responsibility off the perpetrator and onto the victim who, in some cases has done no more than touch the offender’s knee, the HAD effectively excuses homophobic violence.

As a woman I’m also curious to know why our courts have no difficulty recognising unwanted sexual advances made towards straight men as inappropriate, uncomfortable and threatening (to the point where murder is considered a semi-appropriate response). However, when heterosexual men make equally unwanted sexual advances towards women, not only do the courts often have difficulty recognising those advances as threatening and inappropriate, but historically the courts have tended to turn the problem back on women by demanding to know what they were wearing and whether or not they were “asking for it”.

Exactly how many men who claim to have been sexually harassed are interrogated over their attire? And during the recent proceedings, how many times do you suppose the youth was asked whether he “had led Fleming on” or whether he had “enjoyed the attention”?

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Why exactly, do our courts understand that sexual advances can be intimidating, threatening and abusive, but only if the victim happens to be a straight man?

The answer, I suspect, is simple. Many of our laws were written by heterosexual men. These men would not have enjoyed being harassed or objectified, but the very notion that a woman might consider their own advances offensive or objectifying would have been virtually unfathomable.

Of course the tragedy with the Fleming case is that if either man had been able to correctly read the situation the stabbing may have been avoided. If Fleming hadn’t mistaken the youth’s presence at the beat as an expression of sexual availability, perhaps he never would have made a pass. If the youth had understood the context of Fleming’s advance, perhaps he would have been better equipped to handle the situation without resorting to violence.

Regardless, the fact remains that a young man suffered a painful and horrific death. For the family of the victim, two questions must persist; why was this youth carrying a knife in the first place and did he stab Fleming out of fear for his own life, or a “fear of queers”?

While attitudes towards homophobic violence seem to be slowly changing, our laws are still in need of massive reform. Just as we would not excuse the actions of a woman who violently killed a man for making a pass at her, heterosexual men should not be allowed to cower behind HAD as a defence for what may really be homophobic violence.

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About the Author

Nina Funnell is a freelance opinion writer and a researcher in the Journalism and Media Research Centre at the University of New South Wales. In the past she has had work published in the Sydney Morning Herald, The Australian, The Age, The Brisbane Times and in the Sydney Star Observer. Nina often writes on gender and sexuality related issues and also sits on the management committee of the NSW Rape Crisis Centre.

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