Queensland Has Finally Scrapped the 'Gay Panic' Defence

Early in the morning of July 4, 2008, a parishioner on their way to church found the lifeless body of Wayne Ruks inside the grounds of St Mary's in Maryborough, Queensland. It would soon emerge that Ruks had been bashed to death by two men—Jason Andrew Pearce, 36, and Richard John Meerdink, 39. During the investigation and subsequent trial, an explanation was floated: Ruks had made a "homosexual advance" towards Pearce as the two sat down on a park bench in the church yard to smoke a joint. Pearce, who'd been abused as a child, had "snapped."

That this could even be a defence came back to Queensland's controversial "gay panic" law. The loophole meant a "non-violent homosexual advance" could be grounds for a murder charge to be downgraded to manslaughter. Or at least it was until Tuesday night, when the state's parliament voted to scrap the controversial loophole.

The move to repeal "gay panic" in Queensland came after a five-year-long campaign by Father Paul Kelly, sparked by the death of Wayne Ruks. Father Kelly was the priest at St Mary's, the church where Ruks was killed. Since it was launched in 2012, his Change.org petition to change the law has amassed nearly 300,000 signatures.

"I am so enormously grateful that this law has been abolished… A clear message has been sent that all people are equally deserving of the protection of the law irrespective of gender or sexuality," Father Kelly told VICE. "It tells the community that it's not a mitigating factor for extreme violence that someone made a pass at them, either real or imagined. The law has unambiguously rejected any implication that sexuality is an excuse for intolerance, violence, and bigotry."

"Gay panic" was the colloquial name for Section 304 of Queensland's criminal code. There were once similar laws all around Australia; however, state-by-state these were swept away by reform or direct repeal—beginning with Tasmania in 2003. As archaic as the defence seems, it was only enshrined in national law in 1997 after the death Donald Gillies in the small Victorian town of Mudgee.

Gillies' death at the hands of one of his best friends, Malcolm Green, was brutal. He was first punched 35 times, before being stabbed 10 times with a pair of scissors. Finally, 22-year-old Green slammed Gillies' head into a wall, repeatedly. The pair had known one another for at least six years.

During his first trial, Green argued his friend had made an "amorous" advance after a night of drinking, slipping into bed beside him in a spare room of Gillies' house. "Yeah, I killed him, but he did worse to me," Green had told police at the Mudgee police station, "he tried to root me." While Green was initially found guilty, he appealed his case all the way to the High Court of Australia.

In 1997, the court sided with Green that evidence of the sexual abuse of his sisters by their father should've been provided to the jury in his original trial. His murder conviction was overturned. Two of the five judges dissented, including Justice Michael Kirby—Australia's first openly gay judge—who addressed concerns that limiting "provocation" as a defence would affect women who are abused and fight back:

"If every woman who was the subject of a "gentle", "non-aggressive" although persistent sexual advance… could respond with brutal violence rising to an intention to kill or inflict grievous bodily harm on the male importuning her, and then claim provocation after a homicide, the law of provocation would be sorely tested and undesirably extended," Kirby wrote.

In Queensland, the gay panic defence could be applied when one person killed another "in the heat of passion caused by sudden provocation, and before there is time for the person's passion to cool." Successfully argued, it could see a murder charge downgraded to manslaughter, which was what happened in the trial of Pearce and Meerdink.

In 2009, the pair were both found not guilty of murdering Wayne Ruks. A jury convicted Meerdink on the less charge of manslaughter—as a "serious violent offender" he must spend at least eight years in jail. Pearce on the other hand, who pleaded guilty to manslaughter, walked free in 2012.

Pearce told police Ruks had grabbed his penis while they sat on the bench. Later in prison Pearce revealed to a covert police officer that he'd "snapped" because he was sexually abused by a school janitor when he was six years old. The judge ruled it was impossible to tell whether this advance had actually occurred—it couldn't be seen on the CCTV footage. It's also unknown whether Pearce or Meerdink landed the fatal blow. On the night of the attack, both men had kicked and punched Ruks during a beating that stretched out more than six minutes. What is known is that Ruks was beaten so badly he died from internal bleeding after the pair had left him in the church yard.

While Queensland may have closed the gay panic loophole—save for "exceptional circumstances" to be decided by a judge—the defence is still on the books in one final state: South Australia. Late last year, the retrial of Michael Lindsay sparked fresh debate about why it remains a partial defence in SA.

Lindsay, who invoked the gay panic defence, was twice found guilty of the 2011 murder of Andrew Negre, before being granted a retrial by the High Court. During his original trials, Lindsay had argued Negre provoked him into the killing after repeated, unwanted advances. But the prosecutor painted a different picture, saying the victim had made "some sort of sexual connotation… something like I will pay you for sex."

Lindsay responded by beating and stabbing Negre until his co-accused, Luke James Hutchings, took the knife off of him and cut Negre's throat. In September 2016, Lindsay was sentenced to life in prison after his retrial. Since the verdict, there's been very little talk from politicians in the state about ending the "gay panic" defence in Australia once and for all.

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