tag:theconversation.com,2011:/fr/topics/gay-panic-3666/articlesGay panic – The Conversation2017-05-01T20:05:52Ztag:theconversation.com,2011:article/769282017-05-01T20:05:52Z2017-05-01T20:05:52ZChange Agents: David Buchanan and Fr Paul Kelly on ending the gay panic defence<figure><img src="https://images.theconversation.com/files/167315/original/file-20170501-13007-1gsonvj.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">David Buchanan and Fr Paul Kelly have spearheaded pushes to abolish the gay panic defence.</span> <span class="attribution"><span class="source">Forbes Chambers/ABC/Supplied</span></span></figcaption></figure><p>The gay panic – or homosexual advance – defence has allowed people literally to get away with murder. It’s given them a way to convince juries they were provoked to kill because a homosexual person propositioned them. </p>
<p>In an alarming number of cases, juries were convinced that an advance by a gay – or supposedly gay – man was sufficient provocation for killing him. Juries have opted instead to convict the defendant of the lesser offence of manslaughter.</p>
<p>Over the past 14 years this practice has been abolished across Australia’s states and territories; Queensland is the <a href="http://www.abc.net.au/news/2017-03-22/gay-panic-defence-scrapped-by-queensland-parliament/8374758">latest state to do so</a>. In this episode of Change Agents, Andrew Dodd speaks to Catholic priest Fr Paul Kelly and Sydney barrister David Buchanan, SC, about how they did it.</p>
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<p><em>Change Agents is a collaboration between The Conversation and the Swinburne Business School and Swinburne University’s Department of Media and Communication. It is presented by Andrew Dodd and produced by Samuel Wilson and Andrew Dodd, with production by Heather Jarvis.</em></p><img src="https://counter.theconversation.com/content/76928/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In this episode of Change Agents we look at the abolition of the gay panic defence across Australia.Andrew Dodd, Program Director – Journalism, Swinburne University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/610852016-06-16T03:42:09Z2016-06-16T03:42:09ZWhy are we still scared of seeing two men kissing?<figure><img src="https://images.theconversation.com/files/126844/original/image-20160616-19959-onrube.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Gay men are sharing pictures of themselves kissing in an act of defiance in the wake of the Orlando shooting. </span> <span class="attribution"><span class="source">Twitter/@barbarosansalfn </span></span></figcaption></figure><p>Although details remain uncertain, the father of Omar Mateen has claimed that his son’s murderous acts in Orlando’s Pulse nightclub last Saturday may have been inspired by <a href="http://www.latimes.com/nation/la-na-orlando-nightclub-shooting-live-omar-mateen-got-very-angry-seeing-two-1465749495-htmlstory.html">the sight of two men kissing</a>. </p>
<p>In response, a <a href="http://www.abc.net.au/news/2016-06-14/orlando-shooting-social-media-responds-with-two-men-kissing/7507938">twitter campaign</a> with the hashtag #TwoMenKissing has encouraged men to tweet photographs of themselves kissing another man. This is an act of pride and defiance in the face of violent oppression. It also reveals the ongoing politics of men kissing in public.</p>
<p>In countries like the United States and Australia, where variant sexualities are increasingly accepted, showing affection in public continues to carry risk. A long <a href="http://www.utexaspressjournals.org/doi/10.7560/JHS24204">history of censorship</a> and erasure has weighted the gay kiss with meaning and often excluded it from view.</p>
<p>Those of us who grew up watching TV and going to the movies were fed a constant diet of heterosexual fare, in which the sight of straight couples kissing was so common as to go unmentioned. </p>
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<p>The entire premise of stories that became films like Snow White and The Little Mermaid is that a kiss from a man will save a woman (or girl). This is accepted as appropriate children’s entertainment because the desire these kisses convey is heterosexual. But similar acts between two men continue to be framed as something from which audiences must be shielded. </p>
<p>The growing presence of gay characters on television has not necessarily indicated growing comfort with displays of same-sex affection. Popular 1990s soap <a href="http://www.imdb.com/title/tt0103491/">Melrose Place</a> (1992-1999) was known for its steamy romances, but gay character Matt only ever participated in an occasional manly hug.</p>
<p>Whenever it looked like he might be about to kiss, the camera panned away discreetly. Sit-com <a href="http://www.imdb.com/title/tt0157246/">Will and Grace</a> (1998-2006) went several seasons before gay character Will ever kissed a male partner. <a href="http://www.imdb.com/title/tt1442437/">Modern Family</a>’s Cam and Mitchell live together and have adopted a child, but it wasn’t until season two that they exchanged even the most innocent of kisses. Australian television has been equally reticent. Long-running soap opera <a href="http://www.imdb.com/title/tt0088580/">Neighbours</a> (1987-) waited 27 years before showing two of its male characters kissing. </p>
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<a href="https://images.theconversation.com/files/126843/original/image-20160616-19932-1kzy9jm.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/126843/original/image-20160616-19932-1kzy9jm.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/126843/original/image-20160616-19932-1kzy9jm.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=292&fit=crop&dpr=1 600w, https://images.theconversation.com/files/126843/original/image-20160616-19932-1kzy9jm.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=292&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/126843/original/image-20160616-19932-1kzy9jm.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=292&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/126843/original/image-20160616-19932-1kzy9jm.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=367&fit=crop&dpr=1 754w, https://images.theconversation.com/files/126843/original/image-20160616-19932-1kzy9jm.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=367&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/126843/original/image-20160616-19932-1kzy9jm.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=367&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Cam and Mitchell kiss for the first time on Modern Family, in the second episode of the second season.</span>
<span class="attribution"><span class="source">20th Century Fox</span></span>
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<p>In cinemas, the first gay kiss seen in Australia may well have been in the British film <a href="http://www.imdb.com/title/tt0067805/">Sunday, Bloody Sunday</a> (1971), released locally in 1972. But the arrival of that first gay screen kiss didn’t mean that things had changed forever.</p>
<p>As late as 1993, the film <a href="http://www.imdb.com/title/tt0107818/">Philadelphia</a> focussed on a gay male couple, one of whom was dying of AIDS. The lovers dance together and hug, but they never kiss. Director Jonathan Demme argued that a kiss might have repelled audiences, <a href="http://www.rollingstone.com/movies/features/the-rolling-stone-interview-jonathan-demme-19940324">telling Rolling Stone</a> in 1994:</p>
<blockquote>
<p>It’s just shocking imagery and I didn’t want to shoe-horn it in. </p>
</blockquote>
<p>In light of the horror of Orlando, discussing Will and Grace seems trivial. I certainly don’t mean to suggest some causal link between American sitcoms and the acts of a mass murderer.</p>
<p>Rather, my point is that a long history of excluding same-sex affection from public view and the refusal to see or reveal queer lives has had specific effects on lesbian, gay, bisexual, transgender and queer (LGBTQ) people. </p>
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<p>If queer acts of affection on screen have been positioned as unseeable perversions from which children must be protected, what are the consequences when those acts are attempted in real life? What lessons have we taught queer kids about themselves?</p>
<p>Whatever <a href="http://www.smh.com.au/world/orlando-gunman-omar-mateen-political-extremist-or-repressed-homosexual-20160615-gpjooz.html">drove the violence</a> of Mateen – twisted fundamentalist beliefs, the fear of his own desires or something else entirely – his acts have brought to light on an horrific scale the bigotry which, in much smaller ways, continues to shape the lives of LGBTQ people.</p>
<p>A <a href="https://www.humanrights.gov.au/face-facts-lesbian-gay-bisexual-trans-and-intersex-people">study</a> by the Australian Human Rights Commission found that, through the year 2012, verbal abuse had been experienced by a quarter of all gay men and lesbians, 47% of trans men and 37% of trans women.</p>
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<p>In response to the threat of abuse, almost half of LGBTQ people had chosen to hide their identity when in public. This requires constant awareness of one’s behaviour. It means living your life like you’re in a 1990s soap opera, having to wait for the camera to pan away before you can kiss someone hello.</p>
<p>The point of homophobic, biphobic and transphobic violence is to enforce the continued invisibility of LGBTQ people. It is the rejection of our right to equal participation in public space. The #TwoMenKissing twitter campaign has responded with a refusal to hide. </p>
<p>LGBTQ people <a href="http://theconversation.com/orlando-shooting-is-the-latest-chapter-in-the-global-fight-for-lgbt-rights-61010">continue to fight</a> against stigmatisation, demonisation and bigotry. We’ll know we’re winning when the sight of two men sharing a simple kiss no longer looks like a political act. </p>
<p>Perhaps one day, a Disney prince will kiss his prince and they’ll live happily ever after.</p><img src="https://counter.theconversation.com/content/61085/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Scott McKinnon does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>On screen or in public, why does the sight of men kissing continue to provoke controversy, censorship and even violence?Scott McKinnon, Postdoctoral Research Fellow, Urban Research Centre, Western Sydney UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/83882012-08-23T23:36:14Z2012-08-23T23:36:14ZHomicides, homosexual advances and male honour: will NSW act on provocation law?<figure><img src="https://images.theconversation.com/files/14205/original/59ypfdvn-1344838681.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Queensland Attorney-General Jarrod Bleijie is resisting pressure to make changes to the state's provocation laws. </span> <span class="attribution"><span class="source">AAP/Dave Hunt</span></span></figcaption></figure><p>Murder is the most serious of all violent crimes, and needs a determined criminal justice response. If there are circumstances in which a killing might be seen as wholly or partly excusable, then this is of interest to all citizens - particularly if these circumstances weigh unevenly against a specific social group. </p>
<p>Provocation is a defence that signals reduced culpability for an intentional killing by replacing a murder conviction with one of manslaughter. Historically it differentiated killings worthy of the death penalty from less heinous killings committed “in the heat of passion” without premeditation. </p>
<p>This was linked to a tradition of male social honour, a breach of which tended to provoke an angry response. Behaviour seen by criminal courts in the past as an affront to male honour included insults arising from drunken fights or a wife’s adultery. Unfortunately, the latter situation is still seen by some, such as <a href="http://www.theaustralian.com.au/news/nation/infidelity-a-defence-for-murder-say-christians/story-e6frg6nf-1226448727922">Christian lobby group FamilyVoice Australia</a>, to be an acceptable defence to murder today. The perpetuation of such views is partly the reason why provocation has been subject to so much criticism and why some jurisdictions have abolished provocation.</p>
<p>An affront to male honour which in recent decades has been used to argue a case of provocation is the so-called “homosexual advance defence” (HAD), sometimes incorrectly referred to as the “gay panic” defence (which is actually a failed US version of the defence strategy). </p>
<p>Since the 1990s, gay and lesbian activists have expressed serious concerns about homicide cases in which an accused male killer or killers pleads provocation on the basis of an alleged unwanted sexual advance from the victim who was known or assumed to be homosexual. </p>
<p>The argument is that a man who is the subject of an unwanted sexual pass by another man finds this so provoking that he loses self-control and kills. According to the law, if an “ordinary” person could have reacted the way that the offender did by losing their self-control in the face of victim’s behaviour, then the charge of murder will be reduced to manslaughter. </p>
<p>This strategy relies on negative courtroom depictions of the homosexual victim. The logic is that the perpetrator is a “regular” masculine man or youth whose goodwill is pushed to the limit by being propositioned or even sexually touched by a homosexual “nuisance”. </p>
<p>The use of this defence strategy in the NSW case of <a href="http://netk.net.au/Australia/Green.asp">Green v The Queen</a> in the 1990s reached all the way to the most senior judges in the land. A majority ruling by the Australian High Court favourably viewed the accused killer’s appeal against a murder conviction and paved the way for his eventual securing of a much lighter sentence for manslaughter. </p>
<p>The Green case was subject to much criticism because the court allowed claims of a homosexual advance to substantiate a claim of provocation. In reaching this decision the majority of these judges did not take the opportunity to rule that no ordinary person could be provoked to kill by a non-violent sexual pass. In fact, several comments were made which suggested that such extreme violence may often be expected. </p>
<p>The High Court result in Green mobilised gay and lesbian lobbyists nationwide. It spurred an official <a href="http://www.lpclrd.lawlink.nsw.gov.au/lpclrd/lpclrd_publications/lpclrd_reports.html#criminal">Attorney-General’s Working Party Inquiry</a> in NSW which in 1998 recommended that a non-violent sexual advance should be barred from forming the basis of a provocation defence. Nothing came of those recommendations. </p>
<p>More general feminist opposition to provocation because of the way in which it has traditionally privileged male violence and not worked for females has to an extent been more successful and led to provocation being abolished in <a href="http://www.theage.com.au/news/National/Government-abolishes-provocation-defence/2005/01/20/1106110863452.html">Victoria</a>, <a href="http://timeline.awava.org.au/archives/509">Tasmania</a> and <a href="http://www.abc.net.au/stateline/wa/content/2006/s1644462.htm">Western Australia</a>. </p>
<p><a href="http://www.parliament.nsw.gov.au/Prod/parlment/publications.nsf/0/F2BA1BFEED2D87EECA257A4800001BD7">Other jurisdictions</a> have retained the defence of provocation but amended it with the aim of removing its more problematic aspects. For example, amendments in the ACT and Northern Territory bar the use of provocation on the basis of a non-violent sexual advance. Queensland also retains provocation but bars the defence of provocation in response to the ending or changing of a domestic relationship. Parallel to this reduction in the scope of provocation Queensland has also introduced a specific defence of <a href="https://theconversation.com/domestic-violence-how-the-law-treats-women-who-kill-a-violent-partner-6983">killing for preservation in an abusive domestic relationship</a>. </p>
<p>The result of these changes is that NSW and Queensland are the only jurisdictions that still retain provocation and have no legislative bar against provocation claims based on a sexual advance (in South Australia provocation is a common law defence and is not found in statute). Two <a href="http://www.onlineopinion.com.au/view.asp?article=13795">recent cases</a> in Queensland in which provocation was used successfully to reduce charges from murder to manslaughter have once again ignited concern about allowing the defence on the basis of sexual advance. </p>
<p>The ensuing campaign for change led to the creation of a working party in 2011 to examine the operation of the homosexual advance defence and a government pledge to amend the Queensland Criminal Code to, in the words of the <a href="http://news.ninemsn.com.au/national/8408650/qld-to-close-gay-panic-legal-loophole">former Attorney-General Paul Lucas</a>:</p>
<blockquote>
<p>make it crystal clear that someone making a pass at someone is not grounds for a partial defence and by no means an excuse for horribly violent acts. </p>
</blockquote>
<p>But a change in government means there is now no commitment for reform in Queensland, as stated by the <a href="http://www.thechronicle.com.au/story/2012/07/17/no-changes-gay-panic-bleijie/">current Attorney-General, Jarrod Bleijie</a>.</p>
<p>Meanwhile, things might be about to change in NSW. In the fifteen years since the Attorney-General’s Working Party recommended changes to the law, successive governments have reneged on their promises of reform or ignored this issue. Now, however, a <a href="http://www.parliament.nsw.gov.au/provocationcommittee?open&refnavid=CO3_1">select committee</a> has been established to inquire into provocation in NSW, and is currently accepting submissions.</p>
<p>This review was sparked by the case of <a href="http://www.smh.com.au/nsw/six-years-for-killing-sparks-call-for-law-review-20120607-1zz2r.html">Chamanjot Singh</a>, who was sentenced to six years imprisonment after being found guilty of manslaughter rather than murder of his wife on the basis that he had been provoked by verbal abuse. </p>
<p>It remains to be seen whether NSW will join Tasmania, Victoria and Western Australia in abolishing provocation outright, or whether it will make amendments to remove more controversial elements such as its use in HAD claims. </p>
<p>What sort of signals about male interaction and violence does the legal status of the homosexual advance defence send to men and boys? If the answer to this question suggests physical and even fatal violence as the acceptable response, rather than a simple declaration of non-interest, then we should consider why our society would not tolerate a similar violent reaction from women who are subjected to routine unwanted overtures from men. </p>
<p>The ongoing failure to scrap the homosexual advance defence and the partial excuse it provides to certain forms of male violence is an embarrassment and an injustice for the citizens of Queensland and NSW. </p>
<p>The politicians of NSW now have the chance to change this and we should all hope they do not fail a second time. </p><img src="https://counter.theconversation.com/content/8388/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Murder is the most serious of all violent crimes, and needs a determined criminal justice response. If there are circumstances in which a killing might be seen as wholly or partly excusable, then this…Thomas Crofts, Associate Professor, Sydney Law School, University of SydneyStephen Tomsen, Professor of Criminology, Western Sydney UniversityLicensed as Creative Commons – attribution, no derivatives.