Provocation and the “Gay Panic” Defence

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The recent “Gay Panic” defence, repealed in Queensland recently has notable implications not only for the LGBT+ community but for other victims of gendered violence, for example in domestic violence. While the defence has not been completely repealed, the instances where it will be applicable have been limited.

What this means is that in  the state of Queensland defendants could have their murder conviction reduced to manslaughter by claiming what is colloquially called the “Gay Panic” defence. In using this, the defendant would allege that the victim made them commit the crime because he/she “came on to” the defendant and they was so scared and/or angry that they lashed out and killed the victim. Section 304 of the Queensland  Criminal Code Act 1899  (“the Act”) states:

(1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool, the person is guilty of manslaughter only.

The operative term in this defence is the word “provocation.” While Provocation is a defence to murder, there are some very strict qualifications as to when it would apply. According to s304(3) of the Act, unless in exceptions circumstances, it will not apply in situations where:

(a) a domestic relationship exists between 2 persons; and

(b) one person unlawfully kills the other person (the deceased); and

(c) the sudden provocation is based on anything done by the deceased or anything the person believes the deceased has done—

(i) to end the relationship; or

(ii) to change the nature of the relationship; or

(iii) to indicate in any way that the relationship may, should or will end, or that there may, should or will be a change to the nature of the relationship.

Until the most recent amendments, this definition did not exclude the use of the ‘gay panic’ Provocation defence. Provocation was also used in other controversial circumstances, such as where there was a ‘nagging wife’ or a perceived ‘insult to honour’.

These uses of the Provocation defence have been hugely criticized in recent years and considered discriminatory and not reflecting current societal values.  Some legal experts even stated that it promotes a culture of ‘victim blaming’, and fails to hold perpetrators accountable for their actions.

In light of this criticism, the Act has now been amended to include the following exception to the defence of Provocation (s304(2) of the Act):

“[The defence] does not apply if the sudden provocation is based on words alone, other than in circumstances of a most extreme and exceptional character.”

In the opinion of the legislators, this alteration reflects societal expectations that people control their temper and are responsible for their own actions, allowing the Provocation defence only where it is truly appropriate. It is also a reminder that the law is not static; and that what is perceived as permissible in the past may not be viewed the same in modern times.

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