Gay panic defence

The gay panic defense is a legal defense, usually against charges of assault or murder. A defendant using the defense claims they acted in a state of violent temporary insanity because of unwanted homosexual advances from another individual. The defendant alleges to find the same-sex sexual advances so offensive and frightening that it brings on a psychotic state characterized by unusual violence.

Trans panic is a similar defense applied in cases of assault, manslaughter, or murder of a transgender individual, with whom the assailant(s) reportedly engaged in sexual relations unaware of the victim's gender identity until seeing them naked, or further into or post coitus.

In Australia, it is known as the homosexual advance defense (HAD). Of the status of the HAD in Australia, Kent Blore wrote:

Although the homosexual advance defence cannot be found anywhere in legislation, its entrenchment in case law gives it the force of law. [...] Several Australian states and territories have either abolished the umbrella defence of provocation entirely or excluded non-violent homosexual advances from its ambit. Of those that have abolished provocation entirely, Tasmania was the first to do so in 2003.

Victoria passed similar reforms in 2005, followed by Western Australia in 2008 and Queensland in 2017 (with a clause to allow it in 'exceptional circumstances' to be determined by a magistrate). In a differing approach, New South Wales, the ACT and Northern Territory have implemented changes to stipulate that non-violent sexual advances (of any kind, including homosexual) aren't a valid defence.

South Australia was the first Australian jurisdiction to legalise consensual homosexual acts in 1975, however as of April 2017^[update] it was the only Australian jurisdiction not to have repealed or overhauled the gay panic defence. In 2015 the South Australian state government was awaiting, the report from the South Australian Law Reform Institute and the outcome of the appeal to the High Court from the Court of Criminal Appeal of South Australia.In 2011 Andrew Negre was killed by Michael Lindsay bashing and stabbing him. Lindsay's principle defence was that he stabbed Negre in the chest and abdomen but Negre's death was the result of someone else slitting Negre's throat. The secondary defence was that Lindsay's action in stabbing Negre was because he had lost self control after Negre made sexual advances towards him and offered to pay Lindsay for sex. The jury convicted Lindsay of murder and he was sentenced to life imprisonment with a 23 year non-parole period. The Court of Criminal Appeal upheld the conviction finding that the directions to the jury on the gay panic defence were flawed, but that every reasonable jury would have found that an ordinary person could not have to lost self-control and acted in the way Lindsay did. The High Court held that a properly instructed jury might have found that an offer of money for sex made by a Caucasian man to an Aboriginal man in the latter's home and in the presence of his wife and family may have had a pungency that an unwelcome sexual advance made by one man toward another in other circumstances would not have. Lindsay was re-tried and was again convicted of murder. The Court of Criminal Appeal upheld the conviction, and an application for special leave to appeal to the High Court was dismissed. In April 2017 the South Australian Law Reform Institute recommended that the law of provocation be reformed to remove discrimination on the basis of sexual orientation and / or gender, but that the removal of a non-violent sexual advance as a partial defence to murder be deferred until stage 2 of the report was produced.

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