'Gay Panic' Is Still a Murder Defense in Some States of Australia
In Queensland and South Australia, if you're a guy who believes you're being hit on by another guy, you can kill that guy and not face a murder charge.
Illustration by Michael Hili
In some Australian states, if you're a guy who believes you're being hit on by another guy, you can kill that guy and not face a murder charge.
"Gay panic" is a kind of provocation defense recognized in Queensland and South Australia. What it means is, if someone of the same sex hits on you, the shock of that advance can legally render you temporarily insane. Officially known as the homosexual advancement defense, it harkens back to a time when certain situations could be seen as a slight against a man's honor and therefore provoke him into a killing that he's not 100 percent responsible for. Individuals who successfully employ the tactic can expect their charges to be downgraded from murder to manslaughter.
In July 2008, Jason Pearce and Richard Meerdink bashed Wayne Ruks, leaving him for dead in the grounds of a church in Maryborough, Queensland. During the 2010 trial, Pearce claimed Ruks made a sexual advance toward him, causing him trauma due to childhood sexual abuse. He pleaded guilty to manslaughter, while Meerdink was convicted of the same offense. But the judge's sentencing remarks suggested the pair lacked intent to kill because of alcohol intoxication, so it's unclear whether gay panic defense influenced the jury's verdict.
Father Paul Kelly, the priest at the church, began a campaign for the removal of gay panic defense in late 2011, with an online petition that's currently gained up to 226,000 signatures worldwide.
"There were two separate cases where a person was beaten to death by two other men, both of them happened up in the Maryborough region in Queensland," Father Kelly said. "One case where the homosexual advancement defense is used is more than unfortunate, but to have two in a row is a bit careless and dodgy."
The second case involved 62-year-old hitchhiker Stephen Ward allegedly making a pass at John Peterson, who flew into a rage and bashed him. Later Peterson and his companion Seamus Smith took Ward to an isolated area, leaving him to die. Medical evidence was given at the trial showing Peterson was suffering post-traumatic stress disorder, due to violent sexual abuse in his youth. Peterson was convicted of manslaughter and Smith accessory to manslaughter.
Last month, Queensland Attorney-General Yvette D'Ath announced her government will be introducing amendments to ensure a homosexual advance is no longer considered provocation for murder. A spokesperson from her office told VICE these amendments were originally put forward by former Attorney-General Paul Lucas to remove doubts about how and when a partial defense involving a sexual advance can be used. These changes were recommended by an expert committee in early 2012, but dropped by the incoming Liberal government a few months later.
Mark Thomas, a barrister on the management committee of the LGBTI Law Service Inc, was a member of the expert committee. He explained the suggested amendment outlines that provocation defense would not apply to an unwanted sexual advance or minor touching. This would apply in circumstances of exceptional character, such as an individual suffering PTSD due to violent sexual abuse experienced as a child.
"The fact that provocation can operate as a defense to murder in the context of a non-violent sexual advance is a wholly unacceptable proposition," Thomas said, adding that gay panic defense, "seems to suggest that homosexuals are in some way less entitled to the protection of the law than others."
Tasmania abolished provocation defense in 2003 and subsequently so did Victoria and Western Australia. Amendments were made to the defense in the Northern Territory and the Australian Capital Territory, which exclude non-violent sexual advances.
In May last year, the state government of New South Wales passed a bill amending the law of provocation, which had the support of all parliamentary parties. The bill removed non-violent sexual advances from provocation defense, effectively quashing the use of gay panic defense.
"The crimes act is an artifact of the early 20th century and a century later community attitudes have changed and it simply wasn't appropriate to maintain a defense like this," said Justin Koonin, co-convenor of the NSW Gay and Lesbian Rights Lobby.
Related: VICE traveled to Russia to investigate the effects of the country's state-sanctioned homophobia:
The 1997 case, poorly dubbed Green versus the Queen, is often said to have established gay panic as a partial defense in common law. In May 1994, Donald Gillies made a sexual advance toward his friend Malcolm Green in the NSW town of Mudgee. Green responded by repeatedly punching Gillies until he was unrecognizable and then stabbing him 35 times. Initially sentenced to murder, Green's High Court appeal reduced his charge to manslaughter.
But Koonin explained this was not the first case of its kind in NSW, as the defense was used 11 times between 1990 and 2004, with other cases having occurred before the 90s.
One case bringing renewed attention to the gay panic defense is the murder trial of Michael Lindsay. In 2013, Michael Lindsay claimed he was provoked into killing Andrew Negre, as he'd repeatedly come on to him. The jury found him guilty of murder, but last Wednesday the High Court of Australia revoked the charge and ordered a retrial. They found a miscarriage of justice had occurred. In South Australia gay panic defense can still be argued, but the original trial judge suggested to the jury that it no longer should be.
According to Ian Purcell, spokesperson for the Gay and Lesbian Health Alliance of South Australia, there would be no grounds for a retrial if the gay panic defense wasn't still in operation. But the guilty verdict of the original trial shows a change in the general public's attitude.
"It's interesting that in this day and age a jury was not influenced by the gay panic defense," Purcell said, contrasting it with a 1992 case he campaigned against, where two young men were acquitted from almost bashing a middle-aged gay man to death with an iron bar. "It seems there was a level of homophobia still in the general community then that made the panic defense work and that's how those two thugs got off."
At the beginning of the latest session of the South Australian parliament it was announced that the South Australian Law Reform Institute would be undertaking a review of legislation that discriminates against the LGBTI community. They've asked for submissions from the community that will create a list of priority matters to be seen to.
Purcell believes the latest High Court decision may push gay panic defense to the top of this list of proposed reforms. "This case might put more pressure on the government, since it's an attack on this state's legislature that the guy has to be retried," he said.
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