Why the hell do we still have the 'gay panic defence'?

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Photo: Getty Images. Posed by model unrelated to story.

The recent Trayvon Martin case sparked outcry across the US because,  irrespective of the legal nuances, millions read it as endorsing racist paranoia as a murder defence.

Here in Australia we don't have Florida's concealed-carry permits, or stand your ground laws, but we do have our own special absurdity that makes prejudice an excuse for violent crime.

It's called the gay panic defence.

Actually, its legal name is the homosexual advance defence (HAD), but irrespective of title, it's a law that allows murder to become manslaughter because of a victim's sexual orientation. As Greens MLC Tammy Franks said earlier this year, it "effectively suggests that homophobia is OK".

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It isn't used all that often, although in 2009 it helped two men in Gympie, Queensland, downgrade a murder charge for beating to death 45-year-old Wayne Robert Ruks in a churchyard. That same year in New Zealand a similar law was successfully used to downgrade the murder charge of Ferdinand Ambach, a Hungarian tourist who beat a 69-year-old gay man to death with a banjo.

Ten years ago it was also used in NZ to help a homeless drug dealer with 56 priors downgrade a murder rap for beating David McNee to death. McNee was a celaebrity interior designer and former host of My House, My Castle who had made unwelcome sexual advances to his killer during a paid-for masturbation show.

The homosexual advance defence essentially rests on a little-known form of psychosis called Kempf's disease – or homosexual panic. It posits that a brief reactive psychosis can be suffered by those who receive an unwelcome sexual advance.

Effectively Kempf's disease happens when someone is sent temporarily insane by gayness.

Victoria, Western Australia, Tasmania, ACT and NT have all recently abolished the law, recognising that a bit of gay flirting isn't an excuse for violent crime. In NSW a parliamentary inquiry this year recommended scrapping the defence. In South Australia, the Greens have introduced a bill to eradicate it.

But in Queensland HAD still stands.

Trayvon Martin's killing and HAD are infuriating and depressing for similar reasons – they both seem to take us back to the dark ages, when courts mainly protected the entitlements, fears and emotions of privileged men.

The Trayvon Martin killing is, at least in the popular imagination, a Tom Robinson case – where the legal system has seemingly endorsed the demonisation of blacks. Except, unlike in To Kill a Mockingbird, the young black bogeyman has been executed in advance.

The gay panic defence, however, is draconian in a different way. It's effectively one of the last legal supports for men to carry out honour killings – an historical anachronism harking back to the age of duelling foils, pistols at dawn, offence and satisfaction.

As Thomas Crofts and Stephen Tomsen wrote in an article for The Conversation  last year, the homosexual advance defence is an offshoot of the provocation defence, a peculiar legal loophole "linked to a tradition of male social honour, a breach of which tended to provoke an angry response".

"Behaviour seen by criminal courts in the past as an affront to male honour included insults arising from drunken fights or a wife's adultery," they said.

Most of those defences died with the age of chivalry (unfortunately though, as in the case of Chamanjot Singh, some haven’t).

But the gay panic defence remains. The imputed slight to male honour is clear – if a man makes a sexual pass at you as another man then he's suggesting that you could be exhibiting feminine characteristics or even a flirtatious nature.

He's suggesting that you yourself might be a little g... g... gay.

This creates a fissure in the 'victims' previously unassailable masculinity, a crack which the courts accept can send a man momentarily berserk, amok, postal, as it reveals the heterosexual monolith to have a previously unrecognised and spooky plasticity. Unnerving revelations of this sort must be rebutted or corrected with violence.

Of course, this is utterly ludicrous.

Any woman who has been hit on by a dogged, sex-starved meat axe, wolf whistling and perhaps even grabbing his lonely junk through his pants will recognise that – despite being propositioned by a clothed teratoma – the likelihood of finding empathy in the courts for blasting a hole between the culprit's tightly grouped eyes is ZERO. Women aren't allowed to panic in the face of lackwits and male chauvinists.

More broadly, the connection of sex with murder in the gay panic defence, and in any provocation defence, sends out a number of awful messages to the community.

1. The appropriate response to unwanted but non-violent sexual attention is murder.

2. Gay men should stick to their own tribe and deserve to be assaulted for hitting on straight men.

3. Honour, and more specifically a man's sense of total control over his sexuality, is more precious than life.

In the end, it all seems to boil down to the courts trying to find ways to forgive those in the cultural mainstream for crimes committed against those on the fringes.

There is a terrible irony to all this as it related to the Trayvon Martin case. In his last minutes alive Trayvon phoned a friend, Rachel Jeantel, who suggested the man stalking him might be a rapist.

His tussle with George Zimmerman may have been triggered by the fear that he was being hit on by a man, and his belief that the right thing to do was respond with violence (as has been pointed out with glee by Rush Limbaugh).

It only shows how distant we are from each other, and how society encourages many of us to imagine the worst of strangers. How totally terrified and scared we all are of things that are unusual to us.

And why violence of any kind, in almost any situation, is absolutely the wrong response.

68 comments

  • "Trayvon Martin's killing and HAD are infuriating and depressing for similar reasons – they both seem to take us back to the dark ages, when courts mainly protected the entitlements, fears and emotions of privileged men."

    This is made even more interesting when you think that women have been unwillingly put upon by men since time began, fending off unwanted sexual advances. Had a woman attempted to kill the person making these advances, she wouldn't have the same legal avenue as a man alleging an unwanted sexual advance from another male. Just another example of the double standard as well as the rampant homophobia in our society.

    Commenter
    JJ
    Date and time
    July 29, 2013, 8:23AM
    • But why do you see the hetro sexual advances the same as homo sexual advances?

      Commenter
      cranky
      Location
      pants
      Date and time
      July 29, 2013, 9:08AM
    • Not really. Physical repudiation by women of unwanted advances is widely applauded. We have even had legislative reform in Victoria with the publicly stated purpose of providing a robust and less questioning "self defence" legal defence for women who kill a person threatening or perpetrating unwanted sexual / violent acts.

      Commenter
      well
      Date and time
      July 29, 2013, 9:21AM
    • Cranky I think the question is more why do you see homosexual advances as different to hetro? Last time I checked it's not illegal to be gay so why should a gay person making a sexual advance be any different to a straight person?

      Some of the sexual advances I had to put up with from men back in my younger days were downright disgusting and I would have liked to have hit the idiots over the head but I didn't. Men are just as capable of exercising the same self control and walking away.

      Commenter
      Loxxy
      Date and time
      July 29, 2013, 10:16AM
    • Cranky, in what way is a heterosexual advance different to a homosexual one? In this case, they are both unwanted sexual advances.

      Commenter
      Confuzzled
      Date and time
      July 29, 2013, 10:32AM
    • @ well,

      The difference would seem to be that the HAD defence does not require the victim to have been acting violently. It's enough that they made any sexual advance at all. This situation needs to change immediately. It's one thing to respond violently to a threat of physical violence, quite another to respond with violence just because you feel psychologically threatened by the idea that someone has perceived you as being gay.

      Commenter
      Red Pony
      Date and time
      July 29, 2013, 11:22AM
    • In answer to Well - not true. A slap or a shove might be applauded, but if a woman was in the dock defending the beating of a man to death with a banjo, in an attack that included throwing him down the stairs and ended with the broken neck of the banjo shoved down his throat (as in the case quoted in this article, the killing of Ambach), can you imagine the reaction if her defence was 'I went back to his place when he invited me for drinks, but then he made a move on me' - which was his killer's defence?
      This was one of the cases used to abolish New Zealand's 'provocation' defence, and rightly so - although too late for Ambach's killer to be found guilty of murder. Yes, his defence was successful.

      Commenter
      KipT
      Date and time
      July 29, 2013, 1:06PM
  • Madness. Next they'll be looking for a loophole for revenge porn. I was privately prosecuted for stalking by a privileged man who denied there was anything between us - then played sex recordings of my voice in court in an attempt to humiliate and portray me as sexually deviant. Nothing surprises me anymore.

    Commenter
    Kimberley Morrison
    Date and time
    July 29, 2013, 9:21AM
    • Nice thoughts until the last para. I don't think a 'rapist' stalking you is the same as a man hitting on you. If you are a 17 year old boy walking home and a older man (with a gun), bigger is stalking you and 'wants' to rape you, I don't think there is Trayvon had any choice but respond with violence. What was he meant to do?

      Commenter
      urban hipster
      Date and time
      July 29, 2013, 9:24AM
      • Trayvon Martin responded with violence because he was a thug. Zimmerman is not gay. Zimmerman did not proposition or flirt with Martin.

        The Zimmerman - Martin case has nothing at all to do with a homosexual advance defence. It was never even suggested during the trial.

        It's just another case of a left wing journalist making stuff up, when the facts don't match his ideology.

        Commenter
        Greg
        Date and time
        July 29, 2013, 2:33PM

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