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Homosexual panic defence

By Legal Eagle

A good post by Lorenzo on the “homosexual panic defence” and what it means for the status of women and gay men. Please go and read it.

I would add that homosexual panic defence has become an issue again after a recent case in Queensland where one of the defendants attempted unsuccessfully to claim the homosexual panic defence (i.e. that the unwanted advance by a man of the same gender was provocation which provides a partial defence to murder). It was found that there was no homosexual approach on the facts, and that the defence shouldn’t apply. However, there is an argument that provocation as a defence should be abolished altogether, regardless of the gender of the parties involved, and it has been abolished in my home state of Victoria.

There is a gendered aspect to the provocation defence generally. Almost all of those who successfully claim that they killed during a temporary loss of control are men. When women kill men in a domestic situation, it tends to be premeditated and in response to prolonged domestic violence, and it has become notorious that it is very difficult to extend provocation to this situation because there is not the requisite sudden loss of control. For whatever reason, women tend not to kill after losing their temper.

I’ve never heard of a woman killing a man (or a woman for that matter) for an unwanted advance. I must admit, I did slap a guy once when he grabbed my bottom in a very aggressive and unpleasant way in a night club, and he backed right off (ran like a rabbit would describe his response nicely) but that’s the extent of any violent urge I have experienced myself. But I think women are generally much more used to putting up with unwanted advances, and develop techniques for dealing with it. This became evident when my husband tried out Second Life for about half an hour after Telstra had some kind of free offer. For some reason, he chose a female avatar. During the half an hour he tried out the game, he was repeatedly propositioned by men, and he was totally freaked out by the predatory nature of the approaches. [It didn't help that he couldn't work out how to put clothes on his avatar and she was walking about naked - am I a bad wife for laughing until the tears came?]

It came to me then that this was a situation which men don’t often have to face, and they don’t have a social framework of response. In addition, women simply don’t seem to be threatened by homosexuality in the same way as men are, as the statistics in Lorenzo’s post indicate. Thus, when one couples the fact that many men simply have no idea how to respond if there is an unwanted advance with the fact that some men are very threatened by homosexuality, it means such men may lash out with extreme violence, particularly where there is alcohol and drugs involved and the defendant has poor impulse control.

It is unacceptable in our modern day and age that someone could get away with murder (literally) by saying that they were the victim of a same-sex approach. To kill a person for making an unwanted advance is simply not a proportionate or appropriate response, and there should be no excuse for it. I would encourage the Queensland government to consider doing away with the provocation defence altogether, as it is a defence which operates in a manner such to disadvantage both women and homosexual men who are the victims of violent crime. (There is an online petition here, started by the priest in whose churchgrounds the Queensland case above occurred, for those who want to sign it).

45 Comments

  1. Posted January 19, 2012 at 7:28 am | Permalink

    It is unacceptable in our modern day and age that someone could get away with murder (literally) by saying that they were the victim of a same-sex approach.

    I’ve noticed assertions along this line in a couple of places lately. It makes me wonder whether and why it was previously “acceptable”. I imagine it’s because the stigma of homosexuality was so great that the implicit suggestion that someone would welcome a homosexual advance was so outrageous as to cause that person to totally melt down.

  2. Posted January 19, 2012 at 7:28 am | Permalink

    Sorry about the split infinitive

  3. derrida derider
    Posted January 19, 2012 at 8:21 am | Permalink

    Excuse my ignorance, but is this sort of provocation a defence to the charge or something the judge just takes account of when passing sentence?

    If the former, I agree utterly that the defence should be abolished. So too should the more traditional one of hubby finding another man in flagrante with the wife (if it hasn’t already been) .

    If the latter, I’m not so sure – not because such an emotional reaction is rational or socially desirable, but because murder done through ANY spontaneous emotional reaction counts, in my book, as less heinous than wilfully and coldly planned murder (though, of course, still usually heinous enough to deserve a long stretch).

  4. Posted January 19, 2012 at 8:32 am | Permalink

    I would encourage the Queensland government to consider doing away with the provocation defence altogether

    I think it’s important to acknowledge the difference between premeditated acts and acts done “in the heat of passion caused by sudden provocation”, in terms of how we punish and we classify them as crimes. Whether the murder to manslaughter distinction is the best way to do that I’m not sure.

  5. Posted January 19, 2012 at 8:53 am | Permalink

    dd, it downgrades the charge from murder to manslaughter. Manslaughter still carries a possible sentence of life in prison, so I’m not sure how accurate it is to describe the defence as one that enables someone to ‘get away with it’.

  6. paul walter
    Posted January 19, 2012 at 1:10 pm | Permalink

    A little similar to the drunk defence, “dog ate my home work” stuff.
    It could mitigate, as some above have said, but as the entire basis for a defence, it seems shaky, even pathetic, from a laymans point of view.

  7. Posted January 19, 2012 at 1:54 pm | Permalink

    Has there actually been a successful use of the provocation defence in a ‘homosexual panic’ context?

  8. Posted January 19, 2012 at 2:23 pm | Permalink

    LE, I read Green v R and understood that he was granted a new trial on the basis that he could hypothetically claim a ‘homosexual panic’ defence (and that the jury directions in that respect were inadequate), not that he was successful in actually using the defence by convincing a jury he was sufficiently provoked.

  9. Posted January 19, 2012 at 2:38 pm | Permalink

    The point of the partial defence is to say that the person is provoked into doing something he would not otherwise have done. It has probably come down to a “homosexual advance” defence rather than a “sexual advance” defence because:

    (a) as LE observes in the post, women don’t tend to respond to unwelcome advances by killing someone so that (together with other historic disadvantages of women in the law) make it unlikely that the defence would ever gain much currency vis-a-vis female killers;
    (b) otherwise “sane” men are unlikely ever to respond to sexual advances from women by panicking and acting violently – rather the advances are likely to be welcomed;
    (c) the stigma associated with homosexuality and the related fear in many men that maybe they are a little bit homosexual make homosexual advances the category of sexual advances most likely to provoke a disproportionate response.

    On that basis, I’m a little bit uncomfortable with abolishing a defence because of the message it sends. For one thing, I doubt that many people are aware of it. There is no suggestion that the defence is being taken into account by anyone intending to kill a homosexual. As desipis observes, you still go down (no pun intended) for murder.

    The point of the partial defence is to deal with the responsibility of the accused and the intention of the accused. A person who is provoked but responds disproportionately hasn’t previously formed an intention to kill the person or do something likely to kill the person. As distasteful as it is, I don’t think it should be dismissed.

  10. conrad
    Posted January 19, 2012 at 2:56 pm | Permalink

    I’d be interested to know how far this emotional defence could be pushed.

    How about this one (you can exchange homosexual with it mutatis mutandis):

    “Just of late white people have been annoying me — telling me to go home to where I came from, which is at least a 6 km walk from my house, telling me I have bad personal hygene etc. . Yesterday at a bar I was approached by a white female. Since this was bar white people don’t go much, I was shocked that one of them wanted to speak to me, and I suspected she just wanted to harass me like all the rest of them. I therefore punched her in the face, not because I wanted to, but it was really just my gut reaction”.

    If I can use this as a defence, it’s clearly crazy.

  11. Posted January 19, 2012 at 3:54 pm | Permalink

    For one thing, I doubt that many people are aware of it. There is no suggestion that the defence is being taken into account by anyone intending to kill a homosexual. As desipis observes, you still go down (no pun intended) for murder.

    May I just add my support to this proposition? Like Nick, I did my initial training and practice in Queensland, including an 18 month stint in the Trial Division of the Supreme Court in regional Qld, no less. I never saw this argued, and didn’t even know it existed. I no longer have either my criminal law notes (too many computer crashes ago, alas) or my copy of Carter’s Criminal Code, but I think I am a competent enough lawyer to have remembered something so singular.

    Now, on provocation more generally, I think I’ve come to the conclusion that it shouldn’t be abolished, but it should be kept very, very narrow. This is because there is a difference between killing in the heat of passion and other forms of killing. I’ve been put in mind of this because there is a great deal of debate going on in Scotland at the moment about reforming the provocation defence, and also because the Victorian reforms (abolition of partial defence of provocation) haven’t been an unqualified success.

    In traditional Scots law, there were two forms of provocation: (1) infidelity and (2) violent assault. For the latter, the requirement of proportionality was front and centre, and words were always insufficient: there had to be physical violence. This allowed the Scots to keep their test objective in both cases. In the former, the Scots followed Roman law, only allowing the husband to raise provocation as a defence if he killed the (male) paramour and if he caught the couple in flagrante. The Roman/Scots prohibition on killing the woman arose out of Roman and Scots ideas about ‘equality of arms’: because women are generally weaker than men, any man who killed a woman was considered by the Romans to be a coward (cowardice was the worst thing for a man to be accused of in Roman society, as well as among the Scots clans).

    As is typical of equal opportunity Roman law, a woman was also permitted to raise self-defence (a complete defence, of course) when confronted by unwanted male sexual advances, although they had to be serious. Here is Hume, the Scottish Institutional Writer, paraphrasing Ulpian:

    In like manner as a man may kill in resistance of an attempt on his life, so may a woman in resistance of an attempt to commit a rape on her person, an attempt at which she is entitled to feel the highest indignation and resentment.” (Hume i 218)

    This has been put to the test several times in Scots law and passed with flying colours. However, when a man tried to raise the same plea in response to attempted homosexual rape (McCluskey v HM Advocate 1959 JC 39), the court ruled that he couldn’t raise the defence.

    However, during WWII, in HMA v Hill, a serviceman was allowed to plead provocation despite the fact that he had killed both the paramour and his wife. This was because courts were under instruction to be sympathetic to servicemen (there was a war on) and treat them with a degree of leniency. This later led to an unacceptable widening of the provocation defence, including a relaxing of the Roman requirement for in flagrante. There have been a couple of cases where the woman admitted infidelity some time afterwards and the man has been able to raise provocation, which is seen by the Scots as a creeping of English-style ‘words alone sufficient’ into Scots law. The Scots Law Commission is now reviewing the law of provocation as a matter of urgency.

    Similarly, the Victorian abolition of provocation and its replacement with ‘defensive homicide’ has produced extraordinarily complex trials and very confusing summings up to the jury (I have an excellent article from the British Journal of Criminology on this, if anyone wants to review the courtroom disasters that have been generated). It has also made no difference to the sentences handed out. Before the reforms, the Victorian courts then responded to women who killed their violent partners the way Scots courts do now: the woman pleads to culpable homicide (manslaughter), where the sentence is discretionary, and is typically given a wholly suspended sentence or less. In one case, where the man’s behaviour was particularly egregious, she got 240 hours community service. Pleas of defensive homicide, instead of proceeding to trial, are now disposed of in Victoria by way of a plea to manslaughter, with a correspondingly light sentence. Where they do proceed to trial, jurors and judges alike are mired in confusion.

    The alternative is to deal with women who kill violent partners under the self-defence head, as is the case in Texas and California, but that involves seeing her (pre-meditated) actions as, essentially, a ‘community service’ — getting rid of a male who is routinely violent to his intimate partners. The only way it can be justified, I submit, is if the partial defence of provocation is allowed for men, albeit in very narrow, Roman terms (in flagrante, killing of the paramour only). This in its turn involves accepting that men and women respond in ways that are materially different for the purposes of the criminal law. In other words, we should give up the pretense of gender neutrality, for the simple reason that, in practice, it doesn’t operate in a gender neutral fashion.

    I don’t know where that leaves the homosexual panic defence in Qld, except to say that Roman law countries like Scotland have evolved in a completely different direction on that point (as can be seen by McCluskey, decided in 1959).

    And yes, I am writing a submission for the Law Commission on this. Apologies for the length.

  12. conrad
    Posted January 19, 2012 at 5:21 pm | Permalink

    “The alternative is to deal with women who kill violent partners under the self-defence head, as is the case in Texas and California, but that involves seeing her (pre-meditated) actions as, essentially, a ‘community service’ — getting rid of a male who is routinely violent to his intimate partners”

    I like this alternative, but then I’m not a lawyer. It would probably help the gene pool though.

  13. Posted January 19, 2012 at 5:30 pm | Permalink

    Conrad, scientists (esp biologists) always like the Roman law rules on provocation, too! The main reason men are larger and stronger than women is that they evolved to fight each other for women (‘mate competition’); the female was never killed. This is also true of the high primates (I went and read all the primatology papers in Steven Pinker’s footnotes). Biologist friends consider it an example of ‘working with nature rather than against it’, but it still strikes me as a nasty bit of ‘is-ought’ shark-jumping.

  14. kvd
    Posted January 19, 2012 at 5:39 pm | Permalink

    the female was never killed

    Who would get more beer? We’re not totally stupid ;)

  15. Movius
    Posted January 19, 2012 at 6:03 pm | Permalink

    Is it just me or are any situations where this (partial) defense could possibly be valid, already covered by other laws?

  16. Posted January 19, 2012 at 6:35 pm | Permalink

    I doubt that many people are aware of it.

    I heard about it after Stephen Fry managed to get it into the headlines here in Queensland.

    conrad:

    I therefore punched her in the face, not because I wanted to, but it was really just my gut reaction

    I’m not sure that could be described as “in the heat of passion”. Although I do think it could be narrowed, perhaps using the wording of the diminished responsibility section, by requiring the provocation to “impair the person’s capacity to understand what the person is doing, or the person’s capacity to control the person’s actions, or the person’s capacity to know that the person ought not to do the act or make the omission” before it can be applied.

  17. conrad
    Posted January 19, 2012 at 6:43 pm | Permalink

    Not that I want to sidetrack this thread (but this might provide a few laughs :) , but I think that males are bigger than females in most of the animal kingdom. Off the top of my head, the only cases I can think of where it is reversed are with spiders. I’m glad I’m not one of them — especially those that practice Spider_cannibalism, where the female only eats some of her mates (presumably the ones she dislikes…).

  18. paul walter
    Posted January 19, 2012 at 7:16 pm | Permalink

    No, it’s obvious that manslaughter could be an option if evidence is clear enough as to provocation and involved a reflex response?

    You are in a crowded pub, perhaps hemmed in and the bloke next to you suddenly gropes you while you are constrained by a limit of space to avoid the situation. Your elbow comes up reflexively, you connect with your tormentor, he falls back wards and cracks his head on an ashtray stand, sustaining a fatal injury. This is a different situation to where some thug bails up a little gay guy, reckons he hates all poofs and proceed to batter the little guy to a pulp, there seems not the premeditation in a reflexive response to a virtual assault, as with the thug bashing the little gay bloke.

  19. Posted January 19, 2012 at 8:20 pm | Permalink

    C@20 :)

    LE: Thanks for the link.

    There are two different questions here.
    (1) Is there a role for provocation defense?
    (2) Is a homosexual advance a provocation?

    The answer to (2) is no. I am sorry, it is just not a provocation within any reasonable mitigating of homicide.

    The guy wants to have sex with you. Say no. Punch him even, if he gets too physical. But it is not a provocation within any sensible concept of heat-of-emotion killing. It only make any sense at all by writing same-sex desire out of the realm of civilised expectations.

    After all, if we are going to get all Darwinian:
    (a) homosexuals tend to take themselves out of the breeding pool; and
    (b) a possible reason for homoerotic responses was to divert male-on-male aggression.

    The answer to (1) is that clearly there are reasons to differentiate between murder and manslaughter. Some narrow form of provocation defense may be a reasonable way to deal with that. But it would have to be pretty narrow.

  20. Posted January 19, 2012 at 9:19 pm | Permalink

    PW, quite a lot of that scenario involves both the general defence of accident, as well as some complex issues of causation (ie, not only what killed the person in fact, but also whether that thing is legally relevant). That’s the distinction between factual and legal causation.

  21. Posted January 19, 2012 at 9:43 pm | Permalink

    Lorenzo, I’m not sure what the law in other states says on the topic exactly, but in Qld, there is no specific reference to homosexual advances as a basis for mitigating murder. Rather, the code provides that provocation may see the charge reduced from murder to manslaughter.

    That does not mean that every homosexual advance will engage the defence. It will have to be on a par with other instances of provocation which see the defence engaged; hence my attempt to look at it from the point of view of a sexual advance rather than a homosexual advance.

  22. Posted January 19, 2012 at 11:35 pm | Permalink

    I must admit this has got me thinking about the point or benefit of gender neutrality in the law. For some reason I think Ulpian and Hume are right about women defending themselves from rape and then pleading self-defence, but not men doing the same thing with homosexual rape. I don’t have a good reason for this, just a clear intuition… and I don’t want to be like the gag often told about Oxford philosophers:

    ‘They have a lot of clear intuitions, do Oxford philosophers, sitting in their armchairs in front of a roaring fire’.

  23. Movius
    Posted January 20, 2012 at 12:20 am | Permalink

    What is the need to reference gender or biological sex at all in law (except perhaps medical issues.) ? How do you deal with people who do not fit into the regular two genders/sexes? Does the judge lock-up from the logical paradox and melt & catch fire like the future robots from the simpsons trying to understand love?

  24. Posted January 20, 2012 at 6:03 am | Permalink

    NF@24 As I understand the homosexual panic defense, it is not a matter of statute law but of common law practice.

    Extending provocation to sexual advance in general just makes the point clearer: it is not a mitigating reason for homicide. Attempted rape may provoke killing in self-defense, but hardly a mere offer of sex. Remembering that men being bigger and stronger may make it easier for them to kill but also makes it much less necessary.

  25. Posted January 20, 2012 at 8:44 am | Permalink

    L@28:

    Attempted rape may provoke killing in self-defense, but hardly a mere offer of sex.

    I’m not sure there’s always a clear line for when a sexual advance becomes attempted rape. I imagine it would be difficult to draw a line legislatively. I would hope too, that the law would focus on the relative strengths of the individuals involved, and not their genders. Any inference that women have a specific right to defend against sexual attacks is simply perpetuating sexist stereotypes about their relative sexual value.

    That does make me think about the origins of the provocation defence, and how it perhaps originated from an age where defending ones honour was paramount (along the same lines as defamation I suppose), in the same way a woman’s sexual purity was considered paramount. I think the fact that changes have been made to reflect that words alone no longer constitute justifiable provocation for killing, indicates that society’s perspective on the value of life have changed. It suggests that in an age of sexual liberation we should consider whether killing can (no longer?) be justifiably provoked by threats to one’s sexual honour, integrity or purity, at least to the extent that the threats do not constitute a forceful assault.

    …common law practice ..

    From what I recall of the wiki page on the matter (I can’t check it at the moment), I suspect its more a matter of “radical (American) legal theory” than “common law practice”. I’m not sure we need to reflexively change our statutes in response to every radical theory churned out by capital crime defence lawyers.

  26. John
    Posted January 20, 2012 at 8:53 am | Permalink

    Men tend to be bigger and stronger and more dangerous. However if your nightclub sleaze had an ‘egg shell skull” you might have looked like a frightened rabbit rather than he as you contemplated the impact of the situation on your legal career. I bet it would have resulted in a very different attitude toward provocation.

    I think that throwing out provocation altogether is throwing the baby out with the bath water. However I believe there is a strong proportionality problem with the gay panic defence shifting murder to manslaughter and it is open to abuse by the defendants in a very serious crime…

    As has been pointed out “the case which spawned this controversy, I think sometimes it’s an opportunistic practice by defendants who want to reduce their wrongdoing – and the victim isn’t around to argue that there was no approach or that any approach was inoffensive… In the particular case, it wasn’t accepted on the facts, and the mother insists that her son wasn’t gay (but who knows what the truth was?)”

    Another example is the Matthew Shepherd case where a hate crime bill had just been defeated and hours after finding out about the death an activist friend of the deceased contacted journalists and suggested that it was a hate crime and that is the consequence of the legislation not being brought in. The resulting media storm based on the ‘hate crime’ construct apparently inspired the accused to try to rely upon the “gay panic defence”.

    However his girlfriend was involved in a GBLT rights lobby group (so it would be strange to be dating someone totally homophobic) and a male ex-lover of his later pointed out that he had never expressed any negative attitudes toward gay men so the idea that he really had a “gay panic” is rather untenable. Rather these are good examples of how people abuse the opportunity if it is available.

    Using the gay panic defence is convenient when the victim can’t argue and it is way out of proportion to the crime. At best it could result in provocation to minor assault if there was evidence that the accused had a real problem with gays but changing murder to manslaugher is bad law.

  27. Ripples
    Posted January 20, 2012 at 9:00 am | Permalink

    Provocation as a defense to assault in Queensland under section 269 of the Criminal Code is an interesting beast of a law.

    It isn’t applicable to acts causing death so the Murder/Manslaughter question isn’t raised. I think in some instances it can work for assault but I have my doubts about its application to killings.

    In this section on assault the elements according to my copy of Carters are;
    1. The person is, in fact, deprived by the provocation of self control; and
    2. acts upon it on the sudden and before there is time for passion to cool; and
    3. the force used is not disproportionate to the provocation; and
    4. the force used is not intended and is not such as is likely to cause death or grievous bodily harm

    I think this provocation covers the slap in response to the grope regardless of gender and is one I think can serve a purpose. It would seem from previous posts that a slap is considered in some situations an appropriate response notwithstanding it is an assault.

    Section 304 covers provocation in instances of unlawful killing. It only reduces murder to manslaughter. In some ways I think this defense is not necessarily required when considering that intent is an element of the classic understanding of murder.

    I would suggest a reaction from provocation would be a question of intent. If deprived of the self control the person may not have the requisite intent.

    What I do like about the defense is that the test applied as to whether a person was provoked relies on what an ordinary person would do and not the actual individual.

    Using this test the particularly homophobic person would not be protected just because they may be predisposed to being more sensitive to an approach. (I prefer gender neutrality in general law but the homophobic example is a simple one for illustrative purposes). Consider if a member of the Westbro Baptist Church was propositioned and the likely response as a possible example of sensitivity to propositions.

    Of course we still have the problem that the ordinary person is an, “ordinary, reasonable man”. I may even suggest such a man is still white, middle class or higher, possibly a person of faith and most likely heterosexual so the ordinary man needs some updating. (Oh and I think it’s a different character to our rider on the omnibus but that’s another thing altogether)

    I would posit that maybe the issue lies (In my state at least) not with the defense but how it is applied. The culture needs to accept there is no difference between the rights all human beings have. The culture needs to accept equality in all forms and apply that equality in decisions and application of the law.

    If a court permits a provocation defense based on Gay Panic then we need to consider we may have a court that could be considered a bit homophobic in its own right. I wonder how Kirby would have felt with a matter of this type brought before him.
    So my position would be the defenses do not need to be removed. The tests applied to the defense need to apply in a manner that gets away from a preference for a male, middle class heterosexual mind.

    Of course changing culture is potentially much harder than rewriting a law and may take too long and leave too many people in danger in the interim.

    Damn, I got excited and verbose again, sorry

  28. jack
    Posted January 20, 2012 at 12:02 pm | Permalink

    no need to kill a same-sex-approacher, just hit him with your handbag.

  29. kvd
    Posted January 20, 2012 at 1:25 pm | Permalink

    Here goes a non lawyer probably making a fool of himself. I see a difference between a “self-defense defense” and a “provocation defense” – but I don’t really know if the two issues are considered separately, in a legal sense? i.e. I can make a distinction, but I don’t know if the law does.

    Lorenzo summarised in 22 as:
    There are two different questions here.
    (1) Is there a role for provocation defense?
    (2) Is a homosexual advance a provocation?

    My answers would be 1) No and 2) No – the second basically because I cannot how you could see a homosexual advance as life threatening. If on the other hand it was a homosexual rape I’d call that the same as any rape – and invoke a “self defense defense”.

  30. Posted January 20, 2012 at 5:48 pm | Permalink

    Self defence is a complete defence – successfully pleaded, you can go home and have a cup of tea! Provocation is a partial defence (what’s sometimes called an excuse). It reduces murder to manslaughter and (depending on jurisdiction) reduces the severity of sentence in cases of assault. Manslaughter is still a very serious offence, although the sentence is discretionary. It can result in a very stiff prison sentence.

  31. Movius
    Posted January 20, 2012 at 5:54 pm | Permalink

    LE@29 Agree that TG people get the short end of the stick according to the law and often from society in general, mostly through ignorance.

    Which is kind of my point. I feel it’s much simpler to make gender/sex irrelevant from most legal standpoints. than it is to allow for all possible variations.

    Even if you’re talking about “well men are generally stronger than women, so they are at less risk” situations. It’s still only a generalisation…

    Also, if you are that paranoid about you should ask about your partner’s birth sex first. It’s not safe to assume the strange woman you are bringing home has never had a penis at some point in their life.

  32. Mel
    Posted January 20, 2012 at 6:42 pm | Permalink

    Contra much of what is being said here, I do believe Gay Panic is real and that it may well materially contribute to the murder of gay persons in some circumstances. I think anyone over the age of 40 who doesn’t acknowledge that the extremely oppressive taboo against homosexuality in place until recently could lead to something like Gay Panic is being more than a little disingenuous.

    However, even though Gay Panic may well exist, I think the importance of smashing the gay taboo exceeds the arguments for allowing gay haters to employ a Gay Panic defence and thus it should be disallowed. This would send a strong signal and contribute to overall happiness and is thus the indicated position from a consequentialist perspective.

  33. Posted January 20, 2012 at 8:42 pm | Permalink

    LE, the problem with that view is it is substituting political slogans for the test of criminal responsibility. The way you and Lorenzo present it, it makes it sound as though the law provides some level of excuse to anyone who reacts badly to an unwelcome grope in a nightclub.

    It is plain, not least from R v Green which you cite, that the question of whether particular conduct (in that case persistent homosexual advances) was of such a quality as to constitute provocation was a jury question. Put another way, it is up to the jury to consider whether the conduct rose to the point of provocation in the technical, legal sense

  34. Patrick
    Posted January 20, 2012 at 9:06 pm | Permalink

    I could be off base here, God knows I had little love for crim, but my recollection is that gay panic was involved in more cases than R v Green and that, all circumstances included (i.e. unless my memory really has gone to the dogs, Green somehow got into the evil gay guy’s house for completely pure non-gay purposes), there was more than an inference of gay-bashing.
    So I kind of lump it in with the Muslim rapists: sure that’s your culture, but ours is to lock your sad arses away for ever and a day.

  35. Davo
    Posted January 20, 2012 at 11:35 pm | Permalink

    …a sense of entitlement; there should only be a reduction in sentence if the person says sorry. Because it isn’t acceptable, even if it’s humanly understandable – and it should only be forgiven if the person says sorry.

    Geez … dunno wot hav dun .. can i say Sorry!!!!!!?? and be relieved of all my sins/memories ..?

    Oy, if ya get onta the bench; legal eagle .. can i have you as judge .. heh

  36. paul walter
    Posted January 21, 2012 at 12:09 am | Permalink

    I missed the links first time through.

    I really must say to our Legal Eagles – on the basis of the newspaper report – that two trials involving the presentation of, apparently, much evidence, have appeared to produce anything other than a comprehensive miscarriage of justice, particularly in relation to the apparent soft sentencing of one individual.

    What is it that the judge would have noticed, apparently missed by the court reporter for the newspaper? This context has pushed me into line with Patrick and is this is doubly amazing, since that this has happened already once before, and what’s more not over decades but within the last few weeks. Seriously, wasn’t there significant enough evidence to ensure that the “sorry arses” of these thugs were indeed canned for a very long time, or am I just relapsing to bucolic Hansonism, here?

  37. Posted January 22, 2012 at 6:48 am | Permalink

    NF@39 And a minority group subject to a great deal of oppression in the past, and where “kill them all and so purify society” is still a live claim around the world, is perhaps not keen on the idea that juries could put sexual advances in the mitigating murder category.

  38. Posted January 22, 2012 at 6:18 pm | Permalink

    Lorenzo, I’m sympathetic to the fact that there is a dog whistle involved, but I’m not aware that there is some disproportionate number of reductions to manslaughter where homosexual advance is cited as provocation. If there was some evidence that juries were responding to the dog whistle, it might be a different story.

  39. Kate K
    Posted January 23, 2012 at 9:07 am | Permalink

    I really don’t understand the concept of the “dog whistle”. Can someone enlighten me and provide an example
    Many thanks

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