Legal experts and LGBTI activists have this week expressed their concern at laws that continue to exist in NSW and Queensland which allow alleged murderers the option of using a partial defence of ‘non-violent homosexual advance’ as a reason for the death of a victim.
The calls come as a man currently facing a murder trial in Melbourne claimed that he killed his openly-gay housemate following a fit of rage after being propositioned for sex.
Earlier this month in Queensland, a petition sponsored by Brisbane MP Grace Grace was launched to lobby Attorney-General Paul Lucas to make further changes to the use of provocation in that state following the passing of the Criminal Code and Other Legislation Amendment Bill 2010.
Lucas has suggested that the bill already enshrines that “no longer can mere words alone, including gay or straight advances, be sufficient for the defence of provocation, except in the most extreme and exceptional circumstances”.
However, a law expert from the University of Newcastle, Dr Alan Berman, told SX that he believes the legislation has failed to completely eliminate ‘non-violent homosexual advance’ as a defence.
“Most of the common law cases dealing with ‘non-violent homosexual advance’ defence involve more than a mere verbal proposition,” Berman said.
Berman pointed out a recent case where a defendant alleged that the deceased victim had gently touched them on a part of their body which threw them into a fit of rage.
In such a context, the use of ‘non-violent homosexual advance’ operates to partially absolve the accused's homicidal act, converting what would otherwise be murder into a manslaughter conviction.
In recent years, states and jurisdictions such as Tasmania, Western Australia, ACT and Victoria have repealed the use of such, or any, provocation as a legal defence.
In NSW and Queensland, the use of ‘non-violent homosexual advance’ as it is currently articulated does not constitute a complete defence.
That is, it can be used to reduce a charge of murder to manslaughter, however on sentencing the perpetrator could end up receiving the same punishment.
When asked for comment on the issue as it relates to NSW, a spokesperson for newly appointed Attorney-General Greg Smith told SX that the current laws are working fine.
“The Attorney General advises that he is confident current laws adequately address the concerns you raise,” the spokesperson said.
Senthorun Raj, from the NSW Gay and Lesbian Rights Lobby (GLRL) believes the continuing existence of the defence is problematic and needs to be looked at
"Laws which characterise homosexuality as a threat in order to legitimate acts of violence, even if partially, are unacceptable,” Raj told SX.
“Homophobia has no place in our legal system.”