‘It is a Historic Day’: Provocation and ‘Gay Panic’ Defence Consigned to History in South Australia
The independent South Australian Law Reform Institute (SALRI) based at the Adelaide Law School welcomes the recent passage of the landmark Statutes Amendment (Abolition of Provocation and Related Matters) Act 2020. The Act abolishes the vexed partial defence of provocation to murder (including the so called gay panic defence) and makes related changes to other defences, family violence and sentencing. The Act passed Parliament with all party support and received Royal Assent on 10 December 2020.The Act is based on two major Reports undertaken by SALRI.
Dr David Plater, SALRI’s Deputy Director, explained by way of background:
The previous law in South Australia contentiously allowed the partial defence of provocation to reduce murder to manslaughter if the victim was alleged to have ‘provoked’ the defendant into losing control and killing the victim. In situations in which the victim had allegedly made homosexual advances towards the defendant, and thus ‘provoked’ the defendant, the defence is referred to as the ‘gay panic defence’. Provocation may also arise in other cases, for example cases of family violence, where those who have experienced violence or other abuse put an end to it by killing the perpetrator.
The 2020 Act abolishes not only the objectionable ‘gay panic’ defence but the whole partial defence of provocation and makes linked changes to the defences of self-defence, necessity and duress to better reflect the situation of victims of family violence and also to allow the use of expert evidence as to the dynamics and effects of family violence as well as to provide a measure of flexibility in sentencing for homicide.
The Act implements the bulk of the 30 recommendations of the two major reports undertaken by SALRI into provocation and related issues:
Professor John Williams, SALRI’s Director, said that SALRI had been consistent in its view that, whilst the ‘gay advance’ aspect of the partial defence of provocation is objectionable and should be removed, this was only part of a complex wider picture that also needed to be considered.
The whole issue of provocation was complex and the problems of provocation extended well beyond the discriminatory gay panic aspect and its impact on LGBTIQ communities and involved gender implications, especially in its problematic application to victims of family violence. There were issues with other defences such as self-defence, duress and necessity. There were also sentencing implications to be borne in mind. SALRI’s two Reports drew on our wide research and consultation and covered these various issues.
The role and work of SALRI was acknowledged in the parliamentary debate. The Attorney-General noted that the Act implements the preferred recommendations in SALRI’s two reports. The Hon Connie Bonaros said: ‘I would like to commend and thank SALRI for its outstanding work and the work it has undertaken in the development of this Bill.’
MPs from all parties supported the Act and highlighted the faults of the previous law during the debate.
The Attorney-General, the Hon Vickie Chapman MP, commented that the defence of provocation has been criticised for being ‘complex, gender biased and encouraging victim blaming’. It is also at odds with community expectations that, regardless of the degree of provocation, ordinary people should not resort to lethal violence and, in particular, the ‘gay panic’ defence, was ‘offensive and unacceptable’. The Attorney-General noted: ‘The reality is that women who have received sexual advances from men have not been able to avail themselves of this absurd scenario of being able to kill somebody as a result. If they had, frankly there would be a lot of dead men around.’
The Hon Tammy Franks MLC welcomed the abolition of provocation and described it as an ‘historic day’ for South Australia and noted that: ‘Provocation is not a proud part of our history. It is something deeply rooted in the idea of a man's honour being more important than another person's life.’
The Hon Ian Hunter MLC observed:
The words ‘gay panic’ do not appear on any of the Bill's 10 pages, yet the likely passage of this Bill will have the effect of, at long last, abolishing the archaic, harmful and discriminatory defence for murder known as the gay panic defence. The so-called gay panic defence… is in every way deeply discriminatory. The defence is built on the idea that a same-sex advance is so reprehensible and so distressing that it could be expected to lead to murder… SALRI's report articulates in great detail, the current law of provocation is not fit for purpose. Among other issues, it suffers from intrinsic gender bias to the extent that it has been described as misogynist. In the same way that LGBTIQ people have faced inequities under the current law, so too have women. It is right that this has to be addressed. I… support the Bill and the new framework it introduces. With those brief remarks, I support the abolition of the defence of provocation, gay panic and all.
The Statutes Amendment (Abolition of Provocation and Related Matters) Act 2020 will come into operation on a date to be fixed in the New Year.
Dr David Plater noted that a strength of SALRI’s work on this reference was the valuable input of the Law Reform class. A number of Law Reform students contributed in various ways.
Meg Lawson spoke of her work and experiences on this reference:
During my degree, I was part of the law reform class at the University of Adelaide in 2016, during which I was exposed to the vexed partial defence of provocation and more generally had an opportunity to develop a deeper understanding of how law and policy intersects with social values, political context and the practical effect it has on vulnerable groups. Since then I have been fortunate enough to continue to work closely with SALRI. I was one of the co-authors of the Stage 2 Report and prepared a paper entitled Homicide Sentencing: Background Research which was published alongside the Report. The legislation now passed in South Australia was introduced as a direct consequence of SALRI’s recommendations in the Stage 2 Report. It is an incredible feeling to have contributed to effecting such an impactful and important reform to the law, especially for the LGBTQI community. It is a reminder that anyone, whether you are a law student or at the peak of the profession, has the ability to effect real positive change.
Olivia Jay spoke of her experience in helping the project:
I was a member of the law reform class in 2018. As a student, I completed work that ended up getting used in SALRI’s reports, and I saw my fellow students complete work that was directly used in the Provocation report. Since being a student, I have worked with SALRI on the provocation reference and resulting Bill (and now Act). As a not yet admitted lawyer, it has been incredible to see the way that I and other students have been able to contribute to this important reform so early in our careers. It shows that, with passion, you don’t need to be a professional to make a tangible impact. I am proud to be a part of SALRI, and am amazed at the impact that the team has been able to make through the work on this reference.
Professor Williams noted that SALRI’s examination of provocation was part of a comprehensive wider reference by SALRI into discrimination on the grounds of sexual orientation or gender. Professor Williams emphasised the importance to SALRI’s of its consultation:
SALRI’s work on this reference was made possible with the help of the South Australian community, who engaged thoughtfully and generously, and provided stories of how these laws impacted their lives and families. I would like to thank the many parties who kindly contributed to SALRI’s important work.