'An unjust law is no law at all': Homophobia and QLD's Defence of Provocation

In 2008, when Wayne Ruks made sexual advances towards two men outside a church in Gympie, he was unaware that his actions would invoke a response that would cost him his life. The defence that was successfully relied upon to reduce the charge from murder to manslaughter is known as the homosexual advance defence, which is a form of provocation.

In 2003, Tasmania abolished the defence of provocation for murder with Victoria doing the same in 2005. Although all other Australian jurisdictions still allow this defence, New South Wales and the Northern Territory have excluded non-violent sexual advances from this defence. The current law in Queensland is stated in section 304(1) of the Criminal Code Act 1899 (Qld):

“When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool, the person is guilty of manslaughter only.”

Critics of the defence argue that it was relevant prior to the defence of manslaughter being introduced so that those accused could escape the previous punishment of the death penalty. This being the case, the question raised is whether or not this defence serves a purpose in modern criminal law and whether it’s application in cases such as Green v R (1997) is extending the definition too far.

The Reasonable Person

The general test that has been applied throughout common law (R v Sabri Isa [1952]) is that of the reasonable person. More specifically, what was the effect of the provoking actions, not on the individual but rather on a reasonable and objective person? Gibbs J extended this in Moffa v R (1977) to say that the reasonable person is not one who acts reasonably, but rather one who has reasonable powers of self-control. Basically, would an objective third party believe that it was reasonable for the accused to act in that manner?

The opposition to this is that it is impossible to create a model of reasonableness when it comes to provocation, as one must be able to view the characteristics of the accused in order to truly understand why they acted in the way that they did. Although it is reasonable to suggest that the characteristics of the accused be taken into account, a major issue that arises is does this defence protect people who are inherently violent and easily provoked? When someone is easily provoked due to any number of characteristics, the chances of this defence being used are increased. Additionally, it is very difficult to prove and understand how each individual person reacts to different actions. This then has a negative impact on the victim because their killer is given a lesser sentence due to the fact that they reacted to words or actions differently to what a reasonable person generally would.

Although the reasonable person test may go against the rights of the accused, the objective test is the most suitable test to apply due to the fact that it is generally consistent with the views of wider society.

The Homosexual Advance Defence

The homosexual advance defence is a form of provocation in that following a sexual advance; the accused loses control and kills the person who made the advance. Although being used in a handful of New South Wales cases previously (R v McKinnon (1993) and R v Bonner (1995)) the full extent of the homosexual advance defence was seen when it was upheld by the High Court in a 3:2 split in Green v R (1997). In this case, a close friend made a gentle advance (rubbing the groin and backside) towards the accused and this then evoked memories of sexual abuse that occurred between his father and sisters. Because of this, the accused lost control and repeatedly punched the victim’s face and then proceeded to smash his head against a wall causing large cuts on the victim’s head. As if this wasn’t enough, the accused then grabbed a nearby pair of scissors and stabbed him upwards of ten times. During this attack the victim was never able to defend himself. This attack was in no way proportional to the actions of the victim. This mans homophobia caused him to kill one of his friends, and then because of the reasons behind the death, he was able to reduce his charge. The most famous line from this case is when the accused said “yeah I killed him, but he did worse to me” and upon being asked why he killed him the response was “because he tried to root me.” 

On the issue of the reasonable person, McHugh J commented that in this instance it should be viewed as a reasonable person who was subjected to a sexual advance by a close friend that was aggravated by the attackers sensitivity to sexual assaults. From the dissenting view, Gummow J argued that as the acts of sexual abuse we towards his sisters rather than himself, the actions were insufficiently related to the actions of the deceased that caused the provocation. This then raises again the question of whether or not the characteristics of the accused should be taken into account. On this, the other dissenter, Kirby J argued that as a society, Australia is not that homophobic that the response to a non-violent advance would be to brutally murder the victim. Although there are members of society who are genuinely that homophobic, as a whole, most Australians would not see this as a proportionate response.

More recently, in 2008 two men outside a church in Gympie beat a man to death. As the man had made sexual advances towards them, they successfully used the homosexual advance defence. Following the attack outside his church, Father Paul Kelly began a petition to eliminate the gay panic defence from Queensland law. This petition as garnered much support much support including that of British comedian Stephen Fry. The growing public support against the defence shows as a society, views towards homosexuals have improved dramatically and the reasonable person test would not extend to this form of provocation.

Those who oppose the homosexual advance defence claim that it is only used to protect homophobes and there could not be a reasonable justification for allowing it. The defence of provocation is also available for charges of assault, and although the same issues apply, it is more reasonable to see how someone could lose control to the extent of assault. Because even though they have lost control, they still have the self-control to know when to stop, however this is still bad. When the homosexual advance defence is used, it has been in cases of non-violent sexual advances; it has not been in cases where the actions of the victim have been enough to incite a violent response. 

This then raises the question of, is it possible for someone to be so overcome with panic upon being ‘hit on’ that they lose control to the extent that the result of their actions is death? Although there are still many instances of homosexuals being attacked, it is mostly done out of pure homophobia as opposed to responding to sexual advances. It is difficult to say whether or not it is impossible for this level of panic to occur; however even if it is possible for an accused to legitimately lose control and beat someone to death because of homosexual advances, this is not something that society accepts as reasonable or acceptable behaviour. 

It was raised in the dissenting judgement of Green v R that the defence should be abolished “because it reinforces the notion that fear, revulsion or hostility are valid reactions to homosexual conduct.” When allowing a defence like this to exist, it sends the message that this type of reaction is acceptable and this is a contradiction of the views that are held by our modern society.

Kirby J raised one of the biggest arguments surrounding this defence in his dissenting judgement. It was put forward that this defence seems to only apply to homosexual advances as opposed to advances by heterosexuals. He argued that if a woman who had non-violent sexual advances made against her, tried to use provocation as a defence for murder, it would extend the definition of provocation would be unreasonably extended. If it is unreasonable to extend the definition of provocation to non-violent heterosexual advances then why do we continue to allow this defence to be used for homosexual advances? The fact of the matter is that provocation should extend to neither as it is extremely unreasonable that someone should be able to claim that they lost control of their actions when the supposed provoking actions were non-violent sexual advances.

What are the alternatives?

Although there are major problems with the provocation defence, some say that there are certain crimes where the defence should be allowed; such as domestic violence where the accused is reacting to violent situations. In response to this I still recommend that the defence of provocation for murder be removed however in addition to this, I suggest the, what some would call controversial, step be taken and the mandatory life sentence be removed from the charge of murder and allow for the judge to use his or her discretion when it comes to sentencing. In doing so it allows for judges to take into account mitigating factors but without reducing the sentence of murder to manslaughter. It is completely reasonable to charge this people with murder because even if they have ‘lost control’, when one viciously attacks a person to the point of death it is difficult to argue that they lacked the required intent to cause death or grievous bodily harm.

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Andrew Suffern is a 2nd year Law/Justice student at Queensland University of Technology. He previously took a year of Film, of which he retains a keen interest. He is particularly interested in questions of legal ethics, especially surrounding the death penalty debate in the US. He is a keen debater.