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It is better late than never to scrap the antiquated 'gay panic' defence

By Alan Berman, Heather Douglas and Paul Kelly - posted Thursday, 28 June 2012

In 2010 and 2011, two highly publicized murder trials in Maryborough, Queensland resulted in convictions of manslaughter instead of murder.  Defendants in both cases alleged a ‘gay’ guy made an unwanted homosexual advance.

Murdering someone just because the killer thinks the victim is ‘gay’ has been tolerated far too often in countries throughout the globe.  A common method of escaping just punishment for  murder in these circumstances is for the defendant to argue the notorious ‘gay panic’ defence—that if someone they think is ‘gay’ makes a pass at them—a person can claim they ‘freaked out’ and the overwhelming ‘panic’ provoked them to kill the victim.  In Queensland, killing in these circumstances is a partial defence for murder under the provocation defence. 

Despite the fact that the provocation defence has been abolished in Victoria, Western Australia and Tasmania (with the New South Wales Upper House Parliamentary Committee enquiring into the contemporary relevance of the defence), provocation is still on the statute books in Queensland.  This means that a defendant in this state can claim that if he or she kills another person in response to a provocation a manslaughter, rather than a murder conviction may result. 


After community outrage prompted by the two brutal murders in Maryborough,  the Queensland government convened an ‘expert Committee’ to consider whether the defence of provocation should be amended.  The former Attorney General, Paul Lucas, recommended the law should be changed so that non-violent sexual advances could never be recognised. During the election campaign, Premier Newman said the LNP would consider the findings of the expert Committee.  Earlier this month,  the current Attorney General, Jarrod Bleije, said that the ‘LNP supports, in principle, the concept that persons should not be able to rely on [the provocation provisions of the Criminal Code] simply because of a minor touching incident or unwanted sexual advance.” 

While amending the provocation defence to limit its availability would be a good start, it would be even better to get rid of the provocation defence altogether.  Now that we have the battered persons defence in Queensland, which may be available to those who have been seriously abused by their partner and eventually fight back and kill, there is little justification for the continuation of the provocation defence. 

Although the partial defence of provocation appears to be neutral in terms of gender and sexual orientation, this defence consistently operates in a discriminatory fashion.  A non-violent sexual advance can be asserted by any individual irrespective of sexual orientation; yet it is impossible to find any cases in which a non-violent heterosexual advance has ever been successfully asserted in the context of provocation in Queensland.  In contrast, the provocation defence is regularly relied upon in instances not worthy of reducing a murder conviction to manslaughter.  Such cases typically involve two or more men (often inebriated) who are responding to insults and minor provocations or to an alleged (and easily fabricated) non-violent homosexual advance .  A sticking point for the abolition of the provocation defence in this state has been Queensland’s insistence on retaining the mandatory life sentence for murder; an approach rejected by most Common Law jurisdictions thoughout the world as outmoded.  The refusal of Governments past and present to revisit the question of mandatory sentencing for murder is most unfortunate.

Queensland could easily reform the penalty for murder by replacing it with either a maximum or presumptive life term in prison for murder.  This change would allow sentencing judges to exercise discretion in all murder cases and to sentence appropriately and justly in each case.  The Queensland government could also establish a sentence aggravation scheme giving judges discretion to increase penalties in cases involving hatred toward particular groups, such as homosexuals or even in instances involving non-violent sexual advances (which really means non-violent homosexual advances).  Defence counsel would be obliged to inform their clients of the risks of penalty enhancement flowing from the introduction of such claims.  Such changes would pave the way for Parliament to scrap the partial defence of provocation and would be entirely consistent with campaigns such as ‘one punch can kill’ and ‘just walk away.’

Evidence of a non-violent homosexual advance may explain the circumstances of a killing but such advances should never provide justification for murder. Even the United Nations would be pleased with the elimination of the ‘gay panic’ defence.  In March 2011, the UN Human Rights Council commissioned a study to document discriminatory laws and practices and acts of violence against individuals based on sexual orientation and gender identity.  The report (completed in November 2011) found that violence against lesbian, gay, bisexual and transgender persons (‘LGBT’), including killings and violent assaults take place throughout the globe.  Prompted by the findings of the report, in March of this year, UN Secretary-General Ban Ki-moon said the international community has witnessed ‘a pattern of violence and discrimination directed at people just because they are [LGBT which is] a tragedy for those affected—and a stain on our collective conscience.  It is also a violation of international law.’  The Secretary-General urged Member States not to overlook such grave violations of human rights.

The changes suggested in this article would help Queensland catch up with common law jurisdictions throughout the world by sending a message to Queenslanders and the global community that the current government will not tolerate the discriminatory operation of a partial defence in the criminal law.  As Premier Newman has stated on several occasions, the LNP do not condone violence against any person.  Removing the defence of provocation (and with it the ‘gay panic’ defence), would demonstrate unequivocally the commitment of the current LNP government to ensuring the equal application of the criminal law to all Queenslanders. 

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About the Authors

Dr. Alan Berman, an Adjunct Research Fellow of the Socio-Legal Research Centre at Griffith Law School and a Senior Lecturer in Law at Newcastle Law School, teaches and researches in the areas of crime and Australian society, international human rights law and sexuality and the law.

Professor Heather Douglas, of the University of Queensland, is an expert in the field of criminal law.

Paul Kelly is the parish priest at St Mary's Catholic Church, Maryborough, Queensland.

Other articles by these Authors

All articles by Alan Berman
All articles by Heather Douglas
All articles by Paul Kelly

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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