Queensland is finally taking action to repeal the Homosexual Advance Defense from their criminal code. The Homosexual Advance Defense, commonly abbreviated as HAD or “gay panic,” is a provocation defense where a defendant can claim temporary insanity as a result of a homosexual advance. The defense, which has been evoked in several cases involving murder, has been in place since the 1990s.
Currently, Queensland is one of two Australian jurisdictions that have not repealed or amended the defense, the other one being South Australia. Tasmania, Victoria, and Western Australia repealed provocation defense in 2003. New South Wales, the ACT and the Northern Territory amended provocation to exclude non-violent sexual advances. In the U.S., gay panic is explicitly banned as provocation in some states.
Attorney-General Yvette D’Ath promised her government would amend the Criminal Code to “strike the right balance between protecting the community while also protecting the rights of the individual accused.” The amendments were originally presented by former Attorney-General Paul Lucas, recommended by an expert committee in 2012. They would make it so gay panic is no longer provocation for murder.
“Queensland’s criminal code must not be seen to condone violence against the gay community, or indeed any community.”
The effect of the change will not only be legal, but likely also social in combatting homophobia and transphobia. One petition on Change.org started by priest Father Paul Kelly against gay panic writes:
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I am also concerned that even when cases are not formally and specifically pleading the ‘gay panic’ defense, the mere bringing in of suggestions that the victim made a non-violent homosexual advance, (whether true or not), poisons the waters and taps into deep-seated homophobia and bigotry and ought not be brought up at all in any way in the hearing of a jury. The victim is not on trial here.
Legislation to remove the defense is expected to arrive later this year.
