- Defendants claim that gay or trans sexual advances panic them, forcing them to attack.
The state of South Australia is finally poised to scrap the ‘gay panic’ defense which killers can use to get away with murder.
The state’s government is introducing a bill into the Parliament of South Australia. They hope it will pass and see the defense outlawed by the end of 2020.
Gay and trans panic defenses are legal strategies which lawyers use to defend murderers and attackers.
The defendant may claim that a gay or trans person made an unwanted sexual advance on them. They then justify any attack as self-defense. Or they claim the advance shocked them so much that they were temporarily insane.
Lawyers then argue their clients’ attack was understandable and that they should get a lesser sentence.
Equality Australia CEO, Anna Brown says:
‘This long overdue reform is an important step along the way to ending discrimination against LGBTIQ+ people in our laws.
‘Laws that legitimise and excuse violent and lethal behaviour against any member of the LGBTIQ+ community have no place anywhere in Australia. Attacking someone because who they are offends you should increase your punishment, not reduce it.’
‘Biggest legal issue’
South Australia was incidentally the first state in the country to make gay sex legal in 1975. However, it is the last state to maintain the ‘gay panic defense’ which Australians also call the ‘homosexual advance defence’.
Lawyers have even used the defense in recent memory.
In 2011, Michael Lindsay bashed and stabbed Andrew Negre to death. In his defense, Lindsay admitted attacking Negre but claimed someone else had dealt the fatal blow.
However, he also claimed Negre had made sexual advances towards him and offered to pay him for sex. Lindsay say he attacked him in self-defense.
The case rumbled through the courts across multiple appeals until 2015.
At one point, the High Court said Negre’s offer of money for sex in front of Lindsay’s wife and family may have particularly enraged him. However, the courts continually upheld the conviction.
Despite the court maintaining that conviction, the issue continues to haunt LGBT+ South Australians. Matthew Morris, Chair of the South Australian Rainbow Advocacy Alliance (SARAA), says:
‘The gay panic defense is probably the biggest legal issue that LGBTIQ+ South Australians are concerned about when they talk with SARAA.
‘As the first state in Australia to decriminalise homosexuality, it’s embarrassing that we are the last to abolish this outdated legal defense. We welcome this reform and hope that all politicians will support its passage.’
Moreover, 25,000 people, including 2,500 from Adelaide, South Australia’s capital, have signed a petition demanding the defense is outlawed. They also called for stronger laws to protect hate crime victims.
Panic defenses around the world
LGBT+ ‘panic defenses’ have been used as far afield as the Philippines, New Zealand and the United Kingdom, where lawyers call them the ‘Portsmouth defense’ or ‘Guardsman’s defense’.
In the US, the states of California, Illinois, Rhode Island, Connecticut, Hawaii, Maine, Nevada, New York, New Jersey, Washington and Colorado have banned the defense in the last decade.
In Australia, Victoria was the first state to ban the defense in 2005, with other states and territories following.