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South Australia abolishes 'gay panic' murder defence

The 'gay panic' defence no longer exists under Australian law, with legislation passing in South Australia today abolishing the provocation defence in state parliament. While South Australia was the first Australian state to decriminalise homosexuality in 1975, it is the last to abolish this archaic and frankly offensive legal provision.

The provocation provision was previously utilised as a defence tactic to downgrade a charge of murder to manslaughter. This could occur in circumstances where the accused argued in court that they 'lost control' and grew violent following an unwanted sexual advance made by the victim.

For the Attorney-General of South Australia to describe the abolition as 'striking the right balance' between preventing discrimination and protecting victims is perhaps my least favourite quote of the century. In the year 2020, for a leading western democratic nation to offer such disturbingly neutral commentary on a legal defence rooted in prejudice, violence and bigotry is abhorrent. Our laws cannot condone prejudice, they MUST condemn it.

Another repulsive quote attempts to highlight that the abolition brings the law in line with 'modern community standards'. It is disturbing to consider that we as a nation ever believed lethal force to be a considered response to a misplaced sexual advance. It allows murderers to minimise their sentences and arguably heal their criminal reputation on the basis of the sexual orientation of their victim.

Cover image: Wix

The defence has been invoked four times in the last decade, including in the fatal stabbing of Andrew Negre in 2011. In this case, Michael Lindsay was sentenced to a non-parole period of 23 years, after alleging that Negre provoked him through a misplaced joke about paying for sex.

South Australian Attorney-General Vickie Chapman stated, "The defence has been criticised for being complex, gender-biased and for encouraging victim-blaming," in state parliament.

Lee Carnie of the Human Rights Law Centre offered, "this is a law that is clearly rooted in discrimination, completely out of step with community standards and has absolutely no justification today."

Despite being rarely successful, the presence of the provision and its ability to be used in the criminal court system highlights just how far this country has to go in the fight for equality. For many, this will be a fresh reminder that Australia's legal and political history is deeply rooted in prejudice. For the LGBTQI+ community, it is undoubtedly traumatising to be reminded of the extensive protections afforded to perpetrators of violence and how deeply our policies and provisions align with fundamentally disgusting ideals.