Provocation law, homosexual advances and male honour: Will NSW finally act?

Professor Stephen Tomsen, School of Social Sciences and Psychology & Institute for Culture and Society University of Western Sydney, with Associate Professor Thomas Crofts, Director, Sydney Institute of Criminology. A version of this article has also been published on The Conversation.

It is generally understood that murder is the most serious of all violent crimes and it necessitates a determined criminal justice response. All citizens share an interest in when, if and how any killing is seen to be wholly or partly excused by the law, and how this excuse is allowed to happen should not weigh unevenly against or in favour of any specific social group.

Provocation is a defence to murder charges that existed historically to differentiate killings worthy of the death penalty from less heinous killings done “in the heat of passion” without premeditation and planning. This was linked to a time when the notion of male social honour and its protection was very important and when a breach of that honour demanded an angry response. The sorts of behaviour that would traditionally be seen by criminal courts to be an affront to male honour occurred during drunken fights or when a husband caught his wife in the act of adultery.

A more modern affront to male honour used to argue a case of provocation is the so-called ‘homosexual advance defence’ (HAD). Since the 1990s, gay and lesbian activists have expressed serious concerns about homicide cases in which an accused male killer or killers pleads provocation on the basis of an alleged unwanted sexual advance from a deceased victim known or assumed to be homosexual. The argument is that a man who is the subject of an unwanted sexual pass by another man finds this so provoking that he loses self-control and kills. According to the law, if an ordinary person could have reacted the way that the offender did by losing their self-control in the face of the behaviour of the victim, then the charge of murder will be reduced to manslaughter.

The HAD strategy requires the jury come to the conclusion that an ordinary (presumptively male) person could have felt provoked to kill by an unwanted homosexual pass and it relies upon negative courtroom depictions of homosexual victims. The logic is that the perpetrator is a regularly masculine man or youth with his goodwill pushed to the limit by being propositioned or even sexually touched by a homosexual nuisance who is risking serious violence.

The use of this defence strategy in Green’s case in New South Wales in the 1990s reached all the way to the most senior judges in the land. A majority ruling by the Australian High Court favourably viewed the accused killer’s appeal against conviction and paved the way for his eventual securing of a much lighter sentence. In reaching this decision the majority of these judges did not take the opportunity to rule that no ordinary person could be provoked to kill by a non-violent sexual pass. In fact, they made several judicial statements clearly reflecting the view that such extreme violence may be expected.

The Green case was subject to much criticism because Australia’s most senior court did not bar claims of a homosexual advance from substantiating a claim of provocation. It also clearly demonstrated how claims about an unwanted homosexual advance could shape trial results because of the legitimacy given to notions of the defence of masculine social respect. The High Court appeal result in this case mobilised gay and lesbian lobbyists campaigning against the homosexual advance defence nationwide. It spurred an official Attorney-General’s Inquiry in New South Wales which in 1998 recommended that a non-violent sexual advance should be barred from forming the basis of a provocation defence. However, nothing came of such recommendations in this State.

More general feminist opposition to provocation and the way in which it has traditionally privileged male violence in cases of femicide has been more successful and led to the defence being abolished in Tasmania, Victoria and Western Australia. Other States have retained the defence of provocation but amended it with the aim of removing its more problematic aspects. For example, amendments in the Australian Capital Territory and the Northern Territory bar the use of provocation on the basis of a non-violent sexual advance.

The result of these changes is that New South Wales and Queensland are the only jurisdictions that still have no legislative bar. Two recent cases in Queensland in which provocation was successfully argued to reduce charges of murder to manslaughter on the basis of an alleged non-violent homosexual advance have once again ignited concern about HAD. The ensuing campaign for change led to the creation of a Working Party in 2011 to examine the operation of HAD and a government pledge to amend the Criminal Code (QLD) to, in the words of the former Attorney-General, make ‘it crystal clear that someone making a pass at someone is not grounds for a partial defence and by no means an excuse for horribly violent acts.’ Following a change in government, it is now obvious that there is no commitment to push any reform. As the spokesperson for the Attorney-General has noted the defence of provocation was amended in 2011 and the new Government has no plans to make further changes at this stage.

In the 1990s, New South Wales activists led the national mobilisation against HAD but successive governments have reneged on their promises of reform or ignored this issue. Perhaps this is about to change. Now fifteen years after the New South Wales Attorney-General’s Working Party (1997) delivered its recommendation to exclude a non-violent homosexual advance as grounds for provocation a review of the whole provocation defence and its workings is being conducted in New South Wales. This review was sparked by the case of Chamanjot Singh was sentenced to 6 years imprisonment after being found guilty of manslaughter rather than murder on the basis that he had been provoked by verbal abuse from his wife. Helen Westwood from the Upper House moved that a select committee be set up to inquire into provocation and it was decided that this committee will be chaired by the Reverend, the Honourable Fred Nile MLC.

It remains to be seen whether New South Wales will join Tasmania, Victoria and Western Australia in abolishing provocation outright or whether it will retain it but make amendments to remove more controversial aspects of the defence including its use in HAD claims.

How should men reasonably respond to an unwanted sexual advance from another man? What sort of signals about male interaction and violence is the legal status of HAD as a variation of the provocation plea teaching our men and boys?

If the answers to these questions suggest physical and even fatal violence as the acceptable response above a simple declaration of non-interest, we should consider why our society could not tolerate women who reacted in a similar way to routine unwanted overtures from men.

The ongoing failure to scrap HAD and the partly excused status it gives to a certain form of male violence is an embarrassment and an injustice for the citizens of Queensland and New South Wales. The politicians of New South Wales now have the chance to change this and we should all hope they do not fail a second time.  


16 August 2012

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