A Gay Labour MP in New Zealand has praised the decision by the country’s Law Commission to remove the “gay panic defence.”
Charles Chauvel said that the defence, which allowed a person charged with murder to claim that they were driven into a state of violent temporary insanity by a sexual advance from the victim, was unacceptable.
The defendant rarely wins acquittals but if pleaded successfully the murder charge is reduced to manslaughter.
Evidence of provocation must be shown before the judge allows the jury to consider it an acceptable defence, but according to Chauvel:
“The threshold test that the judge has to apply is extremely – unacceptably – low.
“If a man is on the receiving end of an unwanted advance from another man then he needs to learn to say ‘no.’”
Recognising the problems inherent in the defence, the Law Commission’s president Sir Geoffrey Palmer has championed the change to the relevant part of the law.
“Section 169 of the Crimes Act 1961 must be repealed,” he said.
“We do not believe that such circumstances offer a valid excuse for murder.
“Intentional killing in anger in any circumstances is inexcusable.”
The “homosexual panic” defence often sparks outrage from the gay community around the world because it places the burden of blame on the victim.
It has also been used in cases of violent against transgender or transsexual persons.
There is also no equivalent defence relating to heterosexual encounters.
The defence is most frequently used in the United States, particularly in areas where homophobia is widespread.
In the UK, where it is also referred to as the “Portsmouth defence” or “guardsman’s defence”, the Crown Prosecution Service states that:
“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 take place.
“Often, the sexual advance made by the victim will not involve any physical act of touching, and the reaction of the defendant is borne out of anger rather than any real belief that they were acting to protect themselves from an assault.”