Gay panic defense

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 a purported psychiatric condition called homosexual panic. 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 towards cases where the victim is a transgender or intersex person.

In Australia it is known as the homosexual advance defense (HAD) strategy. 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including homosexual) aren't a valid defense.South Australia remains the only jurisdiction within Australia to have not repealed or overhauled the gay panic defence, however the state government is awaiting the outcome of an appeal from the convicted killer of Andrew Negre before reviewing law.

Guidance given to counsel by the Crown Prosecution Service of England and Wales states: "The fact that the victim made a sexual advance on the defendant does not, of itself, automatically provide the defendant with a defence of self-defence for the actions that they then take." In the UK, it has been known for decades as the "Portsmouth defence" or the "guardsman's defence" (the latter term was used in an episode of Rumpole of the Bailey made in 1980).

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