The Homosexual Advance Defence, commonly known as ‘gay panic’, can still be used in Queensland courts, with the government confirming it has no plans to change the state’s provocation laws.
Okay. Here we go…
The fact that this is still an issue is absolutely frustrating. The creative development that I undertook earlier this year aims to point out the injustices that do occur and can occur with this loophole still in the QLD criminal code. Below is my two cents - feel free to discuss with me.
Provocation - simply put - is a ridiculous defence that already makes thousands of “shades of grey” cases. This defence opens up several loopholes that are absolutely going to affect everyone, especially when the verdict comes down to what defines an “extreme of exceptional circumstance(s)”, according to s304.
I find that terrifying.
Try to put it this way; your provocation defence or whatever other defence that floats underneath provocation basically comes down to having an extreme or exceptional jury as much as it does an extreme or exceptional circumstance. For example (regardless of sexual orientation), if someone kills someone and says that they’re provoked by a sexual advance or advance of any other reason (slap in the face, etc) - combine that with a jury that thinks that your actions are justifiable and you’re set. You’re off the hook for murder and only charged with manslaughter.
The homosexual advance defence (I don’t know why we keep saying gay panic defence, that’s the US), is just an example of a defence that falls under the loopholes of s304’s codes on provocation. People who think that their ‘fixed’ gender identities might be questioned when approached by a homosexual, people who are hostile to homosexuality in the first place: these are just examples of people who use the defence to try to justify their actions.
Yeah, as a population of an inner-city, urban, progressive society, we can have a tendency to roll our eyes and say “yeah, but who would ever think that’s a legitimate reason these days?”. While the homosexual advance defence was not a successful defence in the Maryborough case (thank the lord), we have to open our eyes and realise that there are regions in Queensland that don’t have the same percentage of people who recognise same-sex equality. All it can take is a homophobic jury.
Another excuse that is always brought to the fore - and mentioned in the above article:
"It is not possible to remove sexual advances completely without affecting situations such as that of a battered woman who knows that her refusal of a sexual advance from her partner is a precursor to assault and she takes immediate action to stop this from happening," Mr Lucas said in a release at the time.
This excuse bugs me because they’ve added a sub-branch nearby s304 that has made particular exceptions in regards to battered women.
This is a ridiculous issue that has been taking too long to patch up. Let’s not forget that Queensland is one of the last states to patch up this loophole supporting the stigma it gets as being the “Texas of Australia”.
In summary: Queensland. Fix s304.
Again, my two cents. Feel free to share your own thoughts.