May20

Provoking Justice

CREATED ON // Tuesday, 20 May 2014 Written by // Sam Butler

A rare case of our elected representatives behaving collaboratively for the greater good was sadly buried last week beneath the dirt pile of lies, broken promises and spiteful cuts that was the Abbott government’s first Budget.

The passing in NSW of the Crimes Amendment (Provocation) Bill – which enjoyed the support of the overwhelming majority of both houses of parliament – means, finally, an end to the reprehensible “homosexual advance defence” under which accused murder victims could have their charge downgraded to manslaughter (and therefore receive a more lenient sentence) if they could prove they were “provoked” into their violent action by the victim’s non-violent sexual advance.

Not that the bill was introduced with a view to advance LGBTI rights. It was introduced, in fact, as a private member’s bill by none other than Fred Nile himself – hardly a friend of the gays. And the bill wasn’t introduced in response to the murder of a gay man – it actually came out of a 2012 case in which a husband who slit his wife’s throat several times was found guilty by a jury of manslaughter rather than murder because he successfully argued he’d been “provoked” by his wife into losing self-control by certain things she said to him.

The bill actually removes the partial defence of provocation in cases involving non-violent sexual advances from both men and women. The problem was that provocation in such cases had only ever been invoked when one male had received advances from another man and responded accordingly with fatal violence.

The retired High Court Justice Michael Kirby lamented the homosexual advance defence all the way back in 1997 in his dissenting ruling in the landmark case of Green v R. Back then he argued that “if every woman who was the subject of a ‘gentle’, ‘non-aggressive’ although persistent sexual advance ... could respond with brutal violence rising to an intention to kill … the male importuning her, and then claim provocation after a homicide, the law of provocation will be sorely tested and undesirably extended…”

It was an insight Nile himself quoted when introducing his bill; he even went so far as to say he “respectfully agreed” with Kirby J’s observation that “the ‘ordinary person’ in Australian society today is not so homophobic as to respond to a non-violent sexual advance by a homosexual person as to form an intent to kill or inflict grievous bodily harm”.

This is probably just about the most tolerant and respectful we can ever expect Fred Nile to be towards gay men. Perhaps the rev’s mellowing in his old age.

Regardless of Nile’s original motivation to sponsor the bill, or the MPs to vote it through the parliament, the important thing is that they did and a bad piece of common law has been struck down in this state for good.

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Sam Butler

Sam Butler

Sam Butler has been SX's resident snarky political writer since 2005. When not slamming MPs in Evo Media magazines he's a scribe of the will-write-for-food variety, subeditor, punctuation princess and big fan of Hitchcock films, Sondheim musicals, red wine and travelling. You can usually find him lurking on twitter (@samsonjbutler) or in a gym pretending to enjoy training for good health and fitness but secretly wishing there were a miracle pill for it.

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