POLITICS
Bashing Queensland's revolting gay panic laws
Moira Rayner August 08, 2012
My dad had just picked me up from night studies in the law library when we heard the screams. A chunky boy raced past, shirt tail flying, crying. I held out my arms but he pushed past and ran through. Then I heard shouting, yelping and laughing, and three young men flew past in pursuit. My dad just said, come on, and I said, what was that, and he said, we're going to the police.
I didn't know then what a beat was until we got to the station, a couple of blocks away, nor why, when I told the sergeant what we had just seen and that I thought someone might get killed, he didn't get excited or even out of his chair: until, that is, my dad said, aren't you going to do anything? And he said, drily, I've made a note.
This was my first experience of gay-bashing, and of the unofficial law-enforcement view of it.
Homosexuality was illegal then, but murder was, too.
In 1997 a Queensland man successfully defeated wilful murder charges after a 'touch' from a gay man supposedly 'provoked' him into ramming his head into a pulp, then stabbing him. 'Yeah, I killed the guy,' he told police, 'but what he did to me was worse.'
When John Rusk was beaten to death in a Maryborough Catholic church's grounds in 2008 the men charged with his murder successfully pleaded that they had been provoked into it, because the victim (a drinking companion) made a homosexual suggestion. They were convicted of manslaughter rather than murder.
On 12 January this year the then Queensland Attorney General said he would change the law so 'gay panic' couldn't be raised again in like circumstances, as an expert committee recommended. A week ago, the new Attorney General Jarrod Bleiijie said that his (Campbell Newman) government wouldn't be changing it after all.
Homosexual men and women perceive, as do law reform bodies around the world, that legitimating a specific form of sexual-advance as 'provocation' creates a social climate in which 73 per cent of gay and lesbian Queenslanders say they have been subjected to physical violence and verbal abuse because of their sexuality.
This 'gay panic' defence is one particularly revolting aspect of how the law works in those few states which have not abolished this loophole in the law protecting the sanctity of life.
Provocation is a component of the criminal codes of both Queensland (Maryborough) and Western Australia (where I was studying law in 1967, and first encountered the afforementioned homophobia wearing a policeman's hat). Provocation is a complete defence to assault, and a partial defence to a wilful murder or murder charge, reducing conviction to manslaughter or involuntary killing.
The idea is that the victim has done something that a 'reasonable man' can accept was likely to have the effect of either a momentary loss of control, or a temporary incapacity to control your own actions or appreciate the wrongness of an act, short of full legal insanity.
When the codes were created in the late 19th century homosexuality was a crime and homophobia sanctioned even by Christians (though Jesus was never recorded as speaking in favour of any rejection other than of self-righteous and sanctimonious religious leaders). Now a Catholic priest, Paul Kelly, whose church grounds were the scene of Rusk's slaughter, has revived a petition to have this defence legally excised from the Code.
Back in the 1960s, that thrashing I witnessed in the grounds of my law school, and its condonation by the cop who had once charged me with buying a beer under-age, left me in no doubt that law is not justice.
A couple of years after it, an Anglican office-holder in Perth who had been charged with (consensual) homosexual sodomy and committed to the Supreme Court killed himself the night before the trial.
More than ten years later, homosexuality was decriminalised: now even Tasmania, the last state to do that, proposes to be the first state to legitimise gay unions.
Yet a man can legally seek to persuade a jury that he lost the power to make rational judgements if he felt sexually propositioned by another man. A woman on the other hand usually can't persuade a court that she was provoked into killing a man who beat and raped her as a matter of domestic habit.
This, of course, is the much 'lesser' defence of the 'battered wife', who apparently should be used to it and therefore is more likely to be a cold-blooded killer.
And the law makers of Queensland walk backwards to Christmas, like Katter (who promised to so back up his claim that 'there are no homosexuals' in his electorate), because the hateful habits of old are a good enough basis for law regulating the permissible levels of inter-personal violence in the new.
Moira Rayner is a barrister and writer and former Victorian Equal Opportunity Commissioner. To sign the petition to eliminate the 'gay panic' defence from Queensland law, click here.
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SUBMITTED COMMENTS
Pam09 Aug 2012
Having spent my childhood and teenage years in Queensland, I can relate to your article Moira. I think that endearing (?) term for Queensland - "deep north" - has remnants to this day (Katter et al). And NSW also has a fine history of homophobia. Sydney's Gay and Lesbian Mardi Gras came into existence because, in part, decriminalisation of homosexuality occurred as recently as 1984. That a man can legally seek to persuade a jury that he lost the power to make rational judgements if he felt sexually propositioned by another man, and yet a woman usually can't persuade a court that she was provoked into killing a man who beat and raped her as a matter of domestic habit, confirms that the law makers unevenness ia almost comic.
kathleen anderson09 Aug 2012
I wish I could sign the petition; but, as an USA citizen it is not my prerogative.This is appalling. Are the supporters among the self-righteous ones that Christ chastised so many hundreds of years ago. And what is doubling appalling is that an abused woman can be charged with murder - and convicted - yet a "provoked"man can be charged with only manslaughter. My opinion of Australia is lowered. Kudos to you Ms. Rayner, for writing the article and bringing this to the attention of the world. Likewise, kudos to the Jesuits for their courage to support such revelations. Social justice may yet prevail due to the courage of individuals.
Thank you.
Brian Haill - Melbourne09 Aug 2012
"Now a Catholic priest, Paul Kelly, whose church grounds were the scene of Rusk's slaughter, has revived a petition to have this defence legally excised from the Code."
Goon on Fr Paul Kelly...but how much inspiring t would have been to have seen the legal community head up such an initiative!
Still time for that. Any takers in the said legal community..law societies...some judges even?
No? I thought not.Don't lose heart Fr Kelly.
Julie09 Aug 2012
The ability to proclaim Christian morality as a guiding life-force and then beat up on 'the other' physically and legally is mind-boggling.
Moira, you are a light of the world - thanks for this clarity.
The irony is that when my husband was on a Queensland tour with the Marionette Theatre of Australia in 1967 he was assaulted twice in Ayr and spat and elbowed off the kerb in Blackall, with the threat that there were 10 blokes who were coming to his room to beat the poofta up. He wasn't gay, but the rest of the company were, but they were all very conservative, suited, short haired gay men!
Perhaps Roy had longer hair, or wore a shirt like Mick Jagger in Carnaby St. but it did scare him out of the country to hit the 'hippy trail'
Why the new Government would want to perpetuate this kind of culture and criminality in 21st century Queensland is perplexing?
ErikH09 Aug 2012
Seems Newman's government is showing its true colours. This and their stance on the NDIS show they are truly a moral vacuum.
Frank09 Aug 2012
Thanks for this even if it does make the blood boil.
But people had better remember that the democratic process in Qld elected their government with a massive majority, so there is no one to cry stop. It should be a warning to the rest of the country of what will happen if Abbott and Hockey, Joyce and Pyne and the rest are elected as the next Australian government.
Trent09 Aug 2012
A very narrow one-sided article of emotion by the author, without going into the logical and complex issues involved. The article seems more like a poliical attack on Queensland's new government and all who are not of a leftist bent.
Jo dallimore09 Aug 2012
I grew up within the catholic community where gay bashing (name calling and jokes) was common place. I was part of this way of seeing the world until I became aware that a school friend of my sister was gay. A lovely young man whose life journey ended when he died of AIDS. His sister married into my husband's family. I so remember the silence in the families when news of his illness then death came our way. No shared grieving, his sister was alone in her grief. The disgust that one 'good' catholic family showed was,'his fault, he was a poofter.' When challenging this shameful behavior, I was ignored and vilified.
Twenty five years on, it is hard to believe that the law in western Australia and Queensland still allow the 'gay panic' defence. Being a grandmother of two little ones whose parents are gay, I have much at stake in fighting these 'hateful habits of old', Moira. And its not just the law that requires immediate change, a change of heart is required by all of us.
partiZancritic09 Aug 2012
A misleading article, which skilfully weaves cristophobic and heterophobic arguments and the use of selective examples to yet again portray the gays as being victimised by the rest of society. The reality is that society has come a long way from the dark ages of discrimination, and there is no reason why behaviour and advances from a gay (or straight) person which someone may find disgusting and abhorrent should not be treated as provocation. I don't advocate violence, discrimination, and certainly murder should be treated as murder - but I do think your kind of story-spinning is incredibly biased. If you think gays are such a nice and peaceful lot, then I invite you to do a bit of comment reading on any blog or youtube thread where someone is daring to utter some Christian value. And you (as you no doubt know) are just dead wrong about Jesus not speaking against it - actually, he said: "Do not think that I have come to abolish the Law or the Prophets; I have not come to abolish them but to fulfill them" (Matt 5:17) - to my mind, such laws include (Leviticus 18:22).
Liz Munro09 Aug 2012
As a lesbian, if a man makes a verbal or physical advance to me am I justified in attacking him?
Charles Boy09 Aug 2012
Trent - 'the logical and complex issues involved'?? Is that a joke? If not please do enlighten us.
bernie introna09 Aug 2012
Thank you for the article.
I had no idea such cruel and wicked laws existed in our country. I am shocked!!
It is like living in the worst aspect of the dark ages. It is so important, and courageous, that someone like you Moira bring these evil aspects of our country out into the light.
We will be forewarned when voting time comes around.
We do live in a democracy. People can be kicked out of office, or at least challenged to change these unjust, abominable laws...
AURELIUS10 Aug 2012
PARTIZANCRITIC, with the so-called "Christian" logic you have displayed here, I'm sure you would expect a tirade of angry answers on blogs from anyone - it's not because "us gays" are horrible people, it's just that we expect to be treated equally under the law - secular and church.
Anna10 Aug 2012
Get a heart Trent; get a heart.
AURELIUS10 Aug 2012
Trent, I fail to see how you can take left/right political approach to a law which excuses the bashing of another individual. Even honour killings of women supposedly caught in adultery are illegal under Afghani law.
Marie-Louise10 Aug 2012
Partizancritic, can you enlighten me? Does the edict "Thou shalt not kill" also fall into the category of law which we should uphold? Or do we modify it to read "Thou shalt not kill unless thou be provoked with dubious reason"?