Howe, Adrian --- "More Folk Provoke Their Own Demise (Homophobic Violence and Sexed Excuses - Rejoining the Provocation Law Debate, Courtesy of the Homosexual Advance Defence)" [1997] SydLawRw 19; (1997) 19(3) Sydney Law Review 336
[*] Adrian Howe is Senior Lecturer in Law and Legal Studies, La Trobe University. She thanks Wayne Morgan, Peter Johnston and Sam Fradd for their kind assistance. She also thanks Joanna Howse and the Sydney Law Review for their generous support. Finally, thanks to the anonymous referee who was so enthusiastic about this project.
[1] Mison, R, Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation (1992) 80 Calif LR 133 at 134.
[2] Kiley, D, I Panicked and Hit Him With a Brick (1994) 1 Law/Text/Culture 81 at 89.
[3] Adams, K, quoted in Comstock, G, Dismantling the Homosexual Panic Defence (1992) 2 Law and Sexuality 81 at 100.
[4] See the discussion in Colvin, E, Exculpatory Defences in Criminal Law (1990) 10 Oxf J Leg Stud 381. Provocation is not clearly marked as an exculpatory defence in Colvins discussion, but it appears to lie on the cusp of exculpatory/non-exculpatory defences.
[5] Edwards, S, Provoking Their Own Demise: From Common Assault to Homicide in Hanmer, J, and Maynard, M (eds), Women, Violence and Social Control (1987) at 159.
[6] Victorian Law Reform Commission, Homicide, Discussion Paper No 13 (1988) paras 7, 133- 36; Victorian Law Reform Commission, Homicide, Report No 40 (1991) paras 156-59.
[7] New South Wales Law Reform Commission, Provocation, Diminished Responsibility and Infanticide Discussion Paper No 31 (1993) paras 3.127-3.142.
[8] For a recent example see Yeo, S, Sex, Ethnicity, Power of Self-Control and Provocation Revisited [1996] SydLawRw 15; (1996) 18 Syd LR 304.
[9] Stingel v R [1990] HCA 61; (1990) 171 CLR 312 and Masciantonio v R [1995] HCA 67; (1995) 129 ALR 575.
[10] New South Wales Attorney Generals Working Party on the Review of the Homosexual Advance Defence, Review of the Homosexual Advance Defence (1996) (Hereafter Discussion Paper).
[11] See Howe, A, Provoking Comment: The Question of Gender Bias in the Provocation Defence A Victorian Case Study in Grieves, N and Burns, A (eds), Australian Women: Contemporary Feminist Thought (1994) at 225.
[12] For example Smart, C, Feminism and the Power of Law (1989); Smart, C, Laws Power, the Sexed Body and Feminist Discourse (1990) 17 J L and Soc 194; Smart, C, Law, Feminism and Sexuality: From Essence to Ethics? (1994) 9 Canadian J L and Soc 15.
[13] Smart, C, The Woman of Legal Discourse (1992) 1 Social and Legal Studies 29; Duncan, S, Laws Sexual Discipline: Visibility, Violence and Consent (1995) 22 J L and Soc 326.
[14] Kiley, above n2; Morgan, W, Queer Law: Identity, Culture, Diversity, Law (1995) Australian Gay and Lesbian Law Journal 1; Dobber, M, Hegemon: Tracing Power Through Bodies of Law (1995) 2 Law/Text/Culture 61.
[15] Derrida, J, Force of Law: The Mystical Foundation of Authority (1990) 11 Cardozo Law Review 5; Troup, M, Rupturing the Veil: Feminism, Deconstruction and the Law (1993) 1 Australian Feminist Law Journal 63; Moran, L, Sexual Fix, Sexual Surveillance: Homosexual in Law in Shepherd, S and Wallis, M (eds), Coming on Strong (1989); Moran, L, Violence and the Law: The Case of Sado-Masochism (1995) 4 Social and Legal Studies 225.
[16] Herman, D and Stychin, C (eds), Legal Inversions: Lesbians, Gay Men and the Politics of Law (1995); Morgan, W, Identifying Evil For What it is: Tasmania, Sexual Perversity and the United Nations [1994] MelbULawRw 10; (1994) 19 MULR 740.
[17] My Foucauldian perspective is elaborated in Howe, A, Punish and Critique: Towards a Feminist Analysis of Penality (1994). Foucaults notion of a history of the present is discussed in chapter three.
[18] Bendall, A and Leach, T, Homosexual Panic Defence in And Other Family Values (1995) at 9.
[19] Ibid.
[20] Bagnall, R et al, Burdens on Gay Litigants and Bias in the Court System: Homosexual Panic, Child Custody and Anonymous Parties (1984) 19 Harv Civil Rights Civil Liberties Law Review at 499.
[21] Id at 508.
[22] For Foucault, genealogical research combines the erudite knowledge of the critical scholar with the localor popular memories and knowledges of hostile encounters and struggles: Foucault, M Two Lectures in Gordon, C (ed), Michel Foucualt: Power/Knowledge (1980) at 82-3.
[23] Comstock, above n3 at 82-4.
[24] Wainwright Churchill quoted in id at 81.
[25] Bagnall, above n20 at 499.
[26] Foucault, M, About the Concept of the Dangerous Individual in 19th Century Legal Psychiatry in Weisstub, D (ed), Law and Psychiatry (1978).
[27] Bagnall, above n20 at 508-10. At the very least, courts should require the defence to (1) show the defendant to be latently gay and to have suffered a history of severe psychological problems due to confused sexuality; (2) establish that homosexual panic is a mental defect or disease, and not a mere psychological disturbance; and (3) prove that the defendant did not consensually engage in any homosexual activities: Bagnall, id at 514.
[28] Editors, Sexual Orientation and the Law (1990) 103 Harv LR 1 at 34.
[29] Bagnall, above n20 at 515.
[30] Above n28 at 34.
[31] Ibid.
[32] Ibid.
[33] Id at 38.
[34] Id at 36.
[35] Id at 37.
[36] Ibid.
[37] Comstock, above n3 at 84.
[38] Id at 84-5.
[39] Id at 86.
[40] Id at 87.
[41] Id at 88.
[42] Ibid (his emphasis).
[43] Id at 89.
[44] Ibid.
[45] Ibid. As for the linking of acute homosexual panic with self-defence pleas, Comstock found this to be as problematic as its linking to insanity or any other plea, and for the same reason, patients with the disorder are typically self-punishing, withdrawing and passive: Id at 94-5. In brief, self-punishment, not self-defence, is the usual mode or reaction to the onset of homosexual panic.
[46] Id at 97. This point is misquoted in the Discussion Paper above n10, para 44.
[47] Comstocks preoccupation with questions of scientific validity extended to recognising the gender exclusivity of the legal defence compared to the gender-inclusivity of the psychiatric disorder. That is, the case studies reported male and female patients, yet the HPD has only been used to defend male perpetrators. Comstock surmised that the absence of women homosexual panic defendants might be due to the lack of anti-lesbian murder by women, id at 89. But his main concern was to insist that [i]f only some are driven to murder, the defence should be pressed to present a scientific, medical explanation for the differential behaviour, id at 90.
[48] Leader-Elliot, I, Battered But Not Beaten: Women Who Kill in Self-Defence [1993] SydLawRw 38; (1993) 15 Syd LR 403 at 406. 30 Above n28 at 34. 31 Ibid. 32 Ibid. 33 Id at 38. 34 Id at 36. 35 Id at 37.
[49] Discussion Paper above n10, paras 55-67.
[50] Mison, above n1 at 136.
[51] Id at 146-47.
[52] Id at 148.
[53] Id at 158.
[54] Id at 161 (his emphasis).
[55] Ibid.
[56] Id at 167-69.
[57] Id at 173.
[58] Id at 174.
[59] Id at 178.
[60] See Dressler, J, Rethinking Heat of Passion: A Defence in Search of a Rationale (1982) 73 J Crim L and Criminology 421 and Dressler, J Provocation: Partial Justification or Partial Excuse (1988) 51 Modern LR 467.
[61] Dressler, J, When Heterosexual Men Kill Homosexual Men: Reflections on Provocation Law, Sexual Advances and the Reasonable Man Standard (1995) 85 Crim L and Criminology 726 at 728. Dressler admits to being sensitive to such criticism, having been taken to task for ignoring feminist perspectives on a previous occasion. He now acknowledges that gender influences anger: Id at 728, citing Coker, D, Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill (1992) 2 Calif Rev of Law and Womens Studies 71.
[62] Dressler, id at 729.
[63] Id at 754 (his emphasis).
[64] Id at 754-5.
[65] Mison, above n1 at 159.
[66] Tomsen, S, Hatred, Murder and Male Honour: Gay Homicides and the Homosexual Panic Defence (1994) 6 Criminology Australia 2 at 5. While Tomsen claims that North American courts now appear to dignify the fear or hatred of a specific minority group with legal status as an acknowledged defence to murder, it is notable that no appellate court in the United States has explicitly upheld homosexual panic as a basis for acquitting a defendant, at least not to 1990: Harvard Editors, above n28, 32-3.
[67] R v Murley (Supreme Court of Victoria, Teague J, 28 May 1992).
[68] Johnston, P, More Than Ordinary Men Gone Wrong: Can the Law Know the Gay Subject? [1996] MelbULawRw 23; (1996) 20 MULR 1152.
[69] R v McKinnon (New South Wales Supreme Court, 24 November 1993).
[70] Farrelly, B, Roll a Fag and Go Free, Sydney Star Observer 10 Dec 1993.
[71] McKinnon was not actually the first case to provoke outrage in the gay press in Australia. The Victorian Murley case was reported under the Headline: Free to Kill! cut gay mans throat, gets off in Melbourne Star Observer, 12 June 1992.
[72] Govt Must Act On Gay Sex Advance, Sydney Star Observer 22 December 1993. As part of the campaign to bring pressure on the Attorney General to act, the gay press began to report on gay-hate killings in New South Wales. According to one report, 17 cases of gay murder a quarter of all stranger murders in the state--were documented by New South Wales police from 1989 to the end of 1993: Tomsen, S, The Political Contradiction of Policing and Countering Anti-Gay Violence in New South Wales (1993) 5 Current Issues in Criminal Justice 209 at 210.
[73] Bendal and Leach, above n18 at 1.
[74] Id at 2.
[75] R v Bonner (Supreme Court of New South Wales, 19 May, 1995).
[76] Above n10.
[77] Id para 9.
[78] Id at paras 10-11. The Working Party also noted the problems arising from unsworn dock statements. However, as dock statements were abolished in New South Wales by the Crimes Legislation (Unsworn Evidence) Amendment Act 1994, they did not form part of the Working Partys inquiry.
[79] Id at para 15.
[80] Id at para 42. It was acknowledged that the operation of the defence could be partly attributed to community notions concerning the protection of male honour and masculinity, para 44.
[81] Id at para 48.
[82] R v Dunn (New South Wales Supreme Court, 21 September 1995).
[83] R v Turner (New South Wales Supreme Court, Grove J, 14 July 1994).
[84] R v Green (New South Wales CCA 8 November 1995, Priestley JA, Smart J, Ireland J).
[85] Id at 26.
[86] New South Wales Law Reform Commission, Provocation, Diminished Responsibility and Infanticide, Discussion Paper (1991).
[87] Discussion Paper, above n10 at para 63.
[88] Id at para 1. This direction follows almost verbatim the one suggested by Dressler, above n61 at 761.
[89] Id at para 2.
[90] Id. For other responses see Galbraith, L, He Touched Me!, Outrage March 1994, 14 and He Made me Do It, Your Honour, Melbourne Star Observer 24 December 1993.
[91] Id. For others however, it was too sweeping and unpragmatic to say that the problem was homophobic juries or that claims of unwanted advances were always false. Such a claim was unrealistic and cant possibly be true. David Buchanan quoted in Hindmarsh, G, Homosexual Panic Defence: Getting Away With Murder, Sydney Star Observer 17 June 1994.
[92] Tomsen, S, The Political Contradictions of Policing and Countering Anti-Gay Violence in New South Wales (1993) 5 Current Issues in Criminal Justice 209 at 214.
[93] Above n2 at 84.
[94] Id at 85-6.
[95] Id at 86.
[96] Id at 89.
[97] Id at 90.
[98] Evidence Act 1958 (Vic) s25, as amended by Evidence (Unsworn Evidence) Act 1993 (Vic) s3; Crimes Legislation (Unsworn Evidence) Amendment Act 1994 (NSW).
[99] Johnston, above n68 at 1165. This option is no longer available to defendants in Victorian criminal trials. See above n98.
[100] Id at 1168. See above n98.
[101] Ibid.
[102] Id at 1169.
[103] Id at 1170.
[104] Zecevic v DPP [1987] HCA 26; (1987) 71 ALR 641.
[105] Johnston, above n68 at 1171-2.
[106] Id at 1174.
[107] Id at 1174-77.
[108] Id at 1154.
[109] Id at 1166.
[110] Id.
[111] Tomsen, above n66 at 4
[112] Id at 5.
[113] Ibid.
[114] Johnston, above n68 at 1178 (citing Howe above n11).
[115] R v Murley, Above n67 at 5.
[116] For examples of gay-killing cases which rely on homophobic defences (if not always HAD) see Pritchard v R [1991] VicRp 8; (1990) 49 A Crim R 67; Stiles v R (1990) 50 A Crim R 13; R v Grmusa [1991] VicRp 54; (1990) 50 A Crim R 358; R v Preston (1992) 58 A Crim R 328; Whittaker v R (1993) 68 A Crim R 476.
[117] The 1988 National and Gay Lesbian Task Force Violence Project quoted in Kendall Thomas, Beyond the Privacy Principle (1992) 92 Columbia Law Review 1431 at 1463.
[118] Id at 1467 (Kendalls emphasis). On the brutality of homophobic killings in the United States see Comstock, G, Violence Against Lesbians and Gay Men (1991); Herek, G and Berill, K, Hate Crimes: Confronting Violence Against Lesbians and Gay Men (1992); Herek, G, The Context of Anti Gay Violence: Notes on Cultural and Psychological Heterosexism in Cleaver, R and Myers, P (eds), A Certain Terror: Heterosexism, Militarism, Violence and Change (1993).
[119] Ashworth, A. J, The Doctrine of Provocation (1976) 35 Cambridge Law Journal 292 at 296.
[120] Id quoting East.
[121] For example, Johnston, above n68 and Tomsen above n72.
[122] I am borrowing from Naffines argument about the traditional possessive form of erotic love underlying the modern law of rape: Naffine, N, Possession: Erotic Love in the Law of Rape (1994) 57 Modern LR 10.
[123] Moffa v R (1977) 13 ALR 295.
[124] R v Gardner (1989) 42 A Crim R 279.
[125] R v Romano (1984) 36 SASR 283.
[126] Moffa is paradigmatic.
[127] Howe, above n11. The article, which is a critique of the Victorian Law Reform Commissions findings in its Prosecutions Study that provocation law was not gender-biased, is cited in New South Wales Law Reform Commission, above n7.
[128] Allen, H, One Law For All Reasonable Persons? (1987) 16 International Journal of the Sociology of Law 419 at 428.
[129] Ibid 429. A non-exhaustive list of feminist contributions to the provocation/self-defence debate include Greene, J, A Provocation Defence for Battered Women Who Kill [1989] AdelLawRw 10; (1980) 12 Adel LR 145; Tarrant, S, Something Is Pushing Them to the Side of Their Own Lives: A Feminist Critique of Law and Law Reforms (1990) West Australian Law Journal 573 at 585-605; Tolmie, J, Provocation or Self-Defence For Battered Women Who Kill? in Yeo, S, (ed), Partial Excuses For Murder (1991); Young, A, Conjugal Homicide and Legal Violence: A Comparative Analysis (1993) 31 Osgoode Hall LJ 761; Bandalli, S, Provocation A Cautionary Note (1995) 22 J L and Soc 398.
[130] R v John Hugh Cook (Supreme Court of Queensland, 23 March 1995).
[131] Lovec v R (1987) 27 Aust Crim R 40.
[132] Id at 41.
[133] Id at 42-3.
[134] Id at 43-4.
[135] R v Radford (1985) 42 SASR 266 at 269.
[136] Id at 269.
[137] Id at 277. Interestingly, Bollen J dissented on the provocation issue, declaring that he could not agree that it was open to the jury to take the view that a person of ordinary self-control in the position of the appellant would have lost his self-control to the extent to have killed. Nor did he think that the conduct of the deceased amounted to provocation at law: Id at 277.
[138] McGhee v R (Tasmania Supreme Court, Green CJ, Wright J, Zeeman J, 17 March 1994).
[139] Ibid (Zeeman J at p 8 of his judgment).
[140] Id at 21.
[141] A case in point is the fleeting reference in the Attorney Generals Department Discussion Paper to the fact that females(read: women) do not react violently to non-violent sexual advances, and that a female who did so would not be able to rely so easily on provocation or, for that matter, self-defence as males have in HAD cases: above n10 at para 62. Contrast the approach of the participant in the Homosexual Panic Defence Forum who argued that the entire issue was linked to gender as demonstrated by a comparison of the way courts treated mens sexual advances on other men with mens advances, including violent sexual assaults, on women: Bendal and Leach, above n18 at 7.
[142] Above n66 at 5. For examples of critical studies of law which are informed by theoretical developments which have had a transformative impact on the study of gendered or sexed relations see above n11-17.
[143] Above n61 at 763 (citing Coker, above
[144] Id at 735 (his emphasis).
[145] Id at 736.
[146] Id at 737.
[147] For example, HAD cannot be both a misguided application of provocation theory and a direct outgrowth of provocation theorys roots in mitigating the punishment for a defendants behaviour based on the behaviour of the victim: Mison, above n1 at 147. Logically, it has to be one or the other, and I would argue that the evidence of provocation pleas suggests strongly that HAD typifies a provocation defence.
[148] Id at 149.
[149] My point is not to capitalise on Misons faltering on the lesbian question. After all, if feminist legal scholars see only men, homosexuals and women, why should masculinist law scholars be expected to register the existence of lesbians? See Zetlein, S, Lesbian Bodies Before the Law: Chicks in White Satin (1995) 5 Australian Feminist Law Journal 49 at 58.
[150] Above n1 at 161.
[151] Quoted in id at 164.
[152] Above n61 at 737.
[153] Id at 747 (his emphasis).
[154] Id at 747-8 (my emphasis).
[155] Id at 748 (his emphasis).
[156] For examples of forays into this debate see Ashworth above n119 and Colvin above n4.
[157] Dressler above n61 at 749. For a critique of thoughtful scholarship on provocation which assumes that a wifes adultery is a natural category of provocation, citing Dressler as an example, see Taylor, L, Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defence 33 UCLA LR 1679 at 1695.
[158] Dressler above n61 at 754.
[159] Above n10.
[160] Horder, J, Provocation and Responsibility (1992) at 3.
[161] Dressler above n61 at 729.
[162] See for example, Yeo, S, Provoking the Ordinary Ethnic Person: a Jurors Predicament (1987) 11 Crim LJ 96; Yeo, S, Ethnicity and the Objective Test in Provocation [1987] MelbULawRw 4; (1987) 16 MULR 67; Yeo, S, Lessons on Provocation from the Indian Penal Code (1992) 41 International and Comparative Law Quarterly 615 and Leader-Elliot, I, Sex, Race and Provocation: In Defence of Stingel (1996) 20 Crim LJ 72.
[163] See also Horder, J, Sex, Violence and Sentencing in Domestic Provocation Cases (1989) Criminal LR 546.
[164] Horder, above n160 at 194.
[165] Id at 196.
[166] For another abolitionist argument see Matthew Goode, The Abolition of Provocation in Yeo above n129.
[167] See for example, Yeo above n8 at 307 and 322. As for the New South Wales Attorney-Generals Departments Working Party, no mention is made of Horders work in its Discussion Paper, above n10.
[168] Above n10 at para 63.
[169] New South Wales CCA 8 November 1995.
[170] Id at 10-11. It was argued that the alleged homosexual advance triggered memories ... of his belief that his sister had been sexually abused by his father: Id at 1. Perhaps this was just too remote even for a masculinist court.
[171] Id at 22.
[172] Id at 22-3.
[173] [1990] HCA 61; (1990) 171 CLR 312.
[174] [1995] HCA 67; (1995) 129 ALR 575.