Gay Panic Defence Essay

Episode IV: A New Hope

A person who unlawfully kills another, as not to constitute murder is guilty of manslaughter. An element that diminishes responsibility of murder to manslaughter is provocation. Charges of manslaughter have lenient sentencing as opposed to murder, which is a mandatory life sentence.

The ‘gay panic defence’ is a legal argument used by defence lawyers to decreased murder charges on the basis that the defendant was ‘provoked’ into homicide by a sexual advance from the victim. The gay panic defence is the result of common-law in Australia; the High Court precedent was set in 1997 in the case of R v Green.

In 2010, the legal argument was successfully used after two men battered Wayne Ruk to death in Queensland. Wayne

Section 304 (1) defines provocation as the heat of passion caused by sudden provocation, before there is time for the passion to cool. This section states the defendant must have lost ‘self-control’ based on the conduct of the victim; therefore, killing the victim in ‘hot blood’ and not through premeditation. It is a subjective element of provocation that necessitates the defendant to lose self-control based on the conduct of the victim. Moreover, the defendant must have acted ‘before there is time for the passion to cool.’ The ‘heat of passion, denotes some emotion of passion, of great intensity,’ creating an instant reactive response by the defendant. However, there is also an objective element to this section established by R v Stingel. Section 21.113 of the Queensland Law Reform Commission Report lays out the objective person test which determines ‘the provocation could produce in the hypothetical ordinary person the same reaction it produced in the

Findings from that report produced change in legislation; creating subsections 4 through 11. In particular s 304(4) was added which limits the use of provocation, other than in circumstances of an exceptional character, if the sudden provocation is based on an unwanted sexual advance to the person. The section establishes that, where the defendant kills the victim based on unwanted sexual advances, the partial defence of provocation is no longer available. ‘The amendment is framed in gender neutral language; however it is the policy intention that the amendment applies so as to exclude an unwanted homosexual advance.’ These fundamental legislative principles can be found in the explanatory memorandum of the amendments which explains that the Bill was created to abolish this defence. The report records the Chair's part reasoning of "the goal of having a Criminal Code which does not condone or encourage violence against the Lesbian, Gay, Bisexual, Trans, Intersex (‘LGBTI’)