Gay panic to stay
Queensland Attorney-General Jarrod Bleijie has revealed that he is unlikely to implement changes to the infamous 鈥済ay panic鈥� defence, despite recommendations to do so earlier this year from a special committee set up to investigate its presence in the Criminal Code.
In a further blow to the state鈥檚 gay and lesbian community, Blejie told ABC Radio last week that he didn鈥檛 think the recommendations were necessary.
鈥淚t’s been used twice in relation to same-sex, you know, homosexual [advance], where it’s now got this messaging of homosexual or gay panic defence. It’s not,鈥� he said.
鈥淚t’s not a priority to change it.鈥�
The Bligh Government had pledged to tighten the loophole after coming under public pressure earlier in the year to remove doubts about how and when a partial defence involving a non-violent sexual advance can be used.
An expert committee completed its review in January and based on the recommendations of legal expert and retired Court of Appeal judge John Jerrard, former attorney-general Paul Lucas promised to amend the Criminal Code to ensure the intent of the partial defence provisions were clearer.
Bleijie, however, said he was unconvinced of the validity of the recommendations.
鈥淭he former government used this as a political football. They set up a committee, it came up with an outcome to amend the Criminal Code,鈥� he said.
鈥淚 think we have to get this misconception out of everyone’s mind that this [is a] 鈥榞ay panic鈥� defence. It’s a Criminal Code defence open to any Queenslander regardless of sex.鈥�
When the committee handed down its recommendations in January, Bleijie – then shadow attorney-general – said he would take the proposed changes to聽shadow cabinet for consideration, but that he didn鈥檛 think entirely removing the defence was possible.
鈥淚 support the view that it would be impossible to completely remove the partial defence as it could impact on the ability of female abuse victims in domestic relationships to rely on the defence,鈥� he said at the time.
But Dr Alan Berman, an adjunct research fellow of the Socio-Legal Research Centre at Griffith Law School and a senior law lecturer at Newcastle Law School, said he knew of no circumstances in which partial defence of provocation was used in regards to a non-violent heterosexual advance.
鈥淎s far as I鈥檓 aware [non-violent heterosexual advance] has never been successfully raised in Australia,鈥� he told Star Observer.
鈥淚t鈥檚 just not accurate and it confuses the issue because it鈥檚 clear that it鈥檚 not being applied equally.鈥�
Berman, who took part in the first White House conference on hate crimes under the Clinton Administration, said it was unfair to claim that scrapping the defence would affect women in domestic violence situations.
鈥淲hat they do is try and pit one group against each other and say 鈥極h, we don鈥檛 want unintended consequences, we don鈥檛 know how it will affect battered women,鈥欌�� he said.
鈥淭hey鈥檝e already established a separate partial defence for battered persons and that is in no way affected by defence of provocation. It鈥檚 a separate defence.
鈥淭he last attorney-general [Paul Lucas] used that excuse too and I thought it was really disingenuous.鈥�
The provocation defence has been abolished in Victoria, Western Australia and Tasmania, and a New South Wales Upper House Parliamentary Committee is currently conducting an inquiry into the contemporary relevance of the defence in that state.
[…] People are still killed just because they are gay around the world, while so called “gay panic defence” laws remain on the books in several […]
As a gay Victorian (formerly of NZ), can I just say how happy I am I don’t live in the State of Queensland where the government hates gay people.
Also, as a conservative government, surely they should be in favour of tough law and order, not allowing easy defences. Or do they just want to allow easy defences to rednecks, like them?
Thanks Shane for the links. I think the Queensland government is disgusting but sounds like their is some confusion over this.
I’m not advancing a view. Quite a few people on this thread think that there is a rule in statute that specifically targets GLBT people. I can’t blame them, because nowhere in this or other articles is it made clear that the thing in question is a partial defence to murder called provocation. Provocation is a partial defence of a general nature, it could be used by gay people or straight people. It could be used in a situation where there was no sexual advance, the provocation could have been caused by anything from heated words in a pub to a punch in the face. If you were a lawyer, you would know that.
Also, from the Committee Chair’s report…
‘At the conclusion of deliberations, the members of the working group were equally divided for or against an amendment to change the wording of the current section 304’
and
‘Those suggesting no change included the lawyers appearing as, or representing, Legal Aid QLD, the Queensland Law Society, the Bar Association, the Aboriginal and Torres Strait Islander Legal Service and the Queensland Council for Civil Liberties. Those supporting some amendment to section 304 included the lawyers or persons speaking for the Anti-Discrimination Commission, the LGBTI Legal Service Inc., PFLAG, the Director of Public Prosecutions and myself.’
I would say that’s a 50/50 division, not a majority favouring amendment. If you were on the Committee, I guess you would have known that though.
Look, I’m a lawyer too! I was also one of the people involved in the special committee established by the former Qld Attorney-General to investigate the existing provisions of the Qld Criminal Code. I do not share your view Shane (nor indeed did the majority of highly qualified lawyers on that Committee).
I was born in QLD and can confirm, 99% of them are disgusting little rednecks. This state needs to be merged with NSW. It’s obvious that the bulk of Qlders are not intelligent enough to elect a responsible government. Their right to self determination should be removed permanently.
Look, I’m a lawyer. Going to just leave something I posted on Facebook here:
There is no ‘gay panic provision.’ In some jurisdictions there is a partial defence of provocation. It’s gone in Victoria (section 3B Crimes Act), I assume because of activism from GLBT groups who don’t understand the law, but still exists in a few jurisdictions like NSW (section 23 Crimes Act)
The entire ‘gay panic’ drama came up because of a line of cases in NSW. The most notorious of which is discussed and summarised here: . Have a read of 305 – 308. Essentially, the test when determining whether a defendant can take advantage of provocation was changed, and what needs to be considered is an assessment of the gravity of the provocative conduct in light of the defendant’s personal experiences, and a consideration of how an ordinary person would have acted given those personal experiences. The defendant in that case had been the victim of fairly serious sexual assault in the past, and acted violently after an aggressive advance.
The partial defence of provocation doesn’t provide homophobes with a carte blanche defence to murder gay people, it obviously isn’t even specific to gender. It’s also a pretty high bar to meet. In these cases the defendants usually have a history of being victims of sexual assault and act out violently following aggressive sexual advances.
This law could have an unintended effect for the bigot. Have they considered the very real possibility that the gay panic law could lead to gay panic panic? What I mean is this law gives credibility to the argument that, should a gay person’s advances be unwelcome the gay person may use violence to defend himself against the perceived retribution this law seems to allow. It would be preemptive violence. If the law says it’s okay for someone to beat up or kill another for non-violent sexual advances, then it stands to reason that if a violent reaction is expected it’s okay to use lethal force to protect oneself against such a reaction.
At the rate this Newliar government is either rolling back or not implementing reforms, one has to wonder how long before homosexuality is re-introduced to the criminal code in Queensland?
That’s it I’m moving to Canada!!! I was born in VIC and moved to QLD when I was 5, and I have hated QLD since the very moment I arrived, that is why I go for the blues in the state of Origin, because QLD is the backwards state going in reverse hyper drive. I can’t wait to get out of this dump!!
“Quick question. How is the discrimination in this article different from the discrimination you just spouted about Queenslanders being rednecks ?”
When they pass “anti-gay Queenslander” panic legislation you then have grounds to complain that you’re facing similar discrimination. Until then comments on a article are no way comparable to unjust laws that oppress a segment of the population.
Some people may jump on the Queensland bashing bandwagon, but here in NSW we have the same sort of defence available. It is in part due to the Queensland review that the current NSW Parliament in undertaking their own review of the defence. Don’t get me wrong, the Campbell government doing some terrible things, both through their actions and inactions, but it was progressive Queenslanders who have opened up the chance to make things better here in NSW.
*sigh* I just vote for a little drawing of a shark these days. I did not vote for these changes. I feel both of the options were unaceptable however our ‘democracy’ forces us to go vote. Where is the option to say ‘hey, I don’t like any of you’.
I know of someone who is trying to start a new political movement ‘Non of the Above’ in an attempt to give people a voice and a way of saying what they don’t like about the current political system. Don’t know how it will go, but I hope it works.
This is about legalising the murder of same-sex attracted people. We fought off such hate and bigotry about AIDS, and will win this battle also. We all have the capacity to fight this, to write emails to businesses and newspapers, to setup Facebook groups, to blog. Have BBQ鈥檚 and plan with your friends and family. This will unite us, like AIDS did, and we will again march to victory.
Greg, anyone would think that voting is the only voice the public has. You seem to have overlooked the use of public media, such as this, to raise awareness on issues and provide a forum for people to express their views (ironically, you have made this oversight while using this very forum!). Voting is only one very small part of being an active citizen.
I daresay most people would be surprised to learn that this defence even exists (if for no other reason than that it has only been used twice, if not that it is ridiculous). Indeed, doesn’t the fact that it has only been used twice show that it is redundant and therefore its abolition a political and legal no-brainer? Furthermore how would eliminating a redundant defence of a violent response to a non-violent act (seriously people, have we not heard of “No thanks”. Girls have been using this approach in bars in response to drunken idiots for millennia) possibly impact an unrelated defence involving a violent response to a violent act?
Greg, that is straight out bs mate. Most of QLD didn’t have a clue, all they were doing was voting away from Labor.
This is why voting is a joke, the majority have no idea, won’t even spend 10mins online researching parties to see if they fit.
GLBTI genocide.
so does this mean that women can use heterosexual panic defence when they get hit on by drunken straight men…???
As always, to expose the discrimination intended by the actions of these politicians, simply replace the words “gay panic” with “black panic”, “asian panic”, “straight panic”.
The articles then read in a totally unacceptable fashion.
We could start a campaign using such a technique and exposing these bigotted politicians for what they really are.
Hello good people. You voted them in. You agreed with the platform and potential mandate. The majority of Queenslander;s were well informed of the religious and social beliefs of a Newman Government. It didnt happen over night, You the state of Queensland voted.
I dont understand how anyone can use a violence in defense of a non-violent act and get away with it. It does not make sense. It makes me sick.
As a Queenslander I am discusted with this whole thing. I am also terrified about what is going to be thrown at us next! We are all equal and should be recognised as such. This is just further proof that we as a society are not progressing…. we are infact going backwards!
Crossing the QLD border? Just remember to set your watch back 20 years!
mds2076, I urge you to change your stance from one of disgust to one of activism! I’ve lived in queensland my entire life and am pretty tough but I remember what it was like to grow up in Queensland. We need more people who are willing to stand up and be active in their opposition to these draconian laws. Simply throwing your arms in the air and walking away will achieve no good at all.
mds2076, Quick question. How is the discrimination in this article different from the discrimination you just spouted about Queenslanders being rednecks ?
Making sweeping generalizations such as grouping an entire state together as a “redneck backward state” because of the actions of one very incompetent human being seems a little… discriminatory.
Another reason I won’t be going north of the border anytime soon. The rednecks can shove their backward state.
OMG!!! This is just getting beyond a joke now. This Government has to go. Or should I say the Third Reich should go?? Disgusting!!! I have never ever said this but I am embarrassed to be a heterosexual living in Qld. How dare this government treat human beings with such contempt!!! This government is an embarrassment to Qld and Australia.