What the ‘gay panic’ defence is really about

A change.org petition against #gaypanic is currently in the news. The petition started by Catholic priest Fr Paul Kelly claims that a loophole in Queensland law upholds the idea that a person can be panicked enough by gay and lesbian people to justify murder.

It is a fallacious presentation of a legal problem, and here’s why:

The Criminal Code (Section 304) does not specifically provide a partial defence for provocation on the basis of a non-violent homosexual advance. Assault of any kind – physical or sexual, heterosexual or homosexual – is a crime. There is no logical reason to make distinctions among various kinds of assault.

Many persons from all sections of the community are victims of violent crime, and there is much concern that the law is too lenient with such offenders. That is a justifiable cause for concern. There is no need to single out “gay victims”.

So-called “gay panic” legislation refers to the legal position of those who are victims of sexual assault from a homosexual, and who, in an act of self-defence, kill an assailant.

A man may be a victim of a knife-wielding offender, whom he punches in self-defence. The offender falls and strikes his head on a sharp stone, resulting in his death. In such a case the charge is downgraded from murder to manslaughter. This is just, as there was no intention to kill, but merely to repel an assault in self-defence.

A question may arise that the degree of violence exercised in repelling an assault was greater than necessary to achieve its object. That could be a valid consideration, and can only be judged on a case by case basis. This is a matter for the council for the defence and the court.

As Attorney-General Jarrod Bleijie says, “I think we have to get this misconception out of everyone’s mind that this [is a] gay panic defence. It’s a Criminal Code defence open to any Queenslander regardless of sex.”

See Section 304 of the Queensland Criminal Code, which makes clear the provocation defence is a general defence available to anyone accused of murder.  It is not a specifically “gay panic” defence.