Provocation and `Homosexual' Advance: Masculinized Subjects as Threat, Masculinized Subjects Under Threat
| Date | 01 September 2003 |
| Author | Allyson M. Lunny |
| DOI | 10.1177/09646639030123002 |
| Published date | 01 September 2003 |
| Subject Matter | Journal Article |
PROVOCATION AND
‘HOMOSEXUAL’ ADVANCE:
MASCULINIZED SUBJECTS AS
THREAT, MASCULINIZED
SUBJECTS UNDER THREAT
ALLYSON M. LUNNY
University of Toronto, Canada
ABSTRACT
By applying queer and critical gender theories to the notion of the masculinized
subject, this article theorizes the complexities of the ‘homosexual’ threat within the
Canadian legal domain of the provocation defence. The article remarks that most
‘homosexual’ advance defences at the appellate level are rejected while only some are
successfully believed. It argues that the extent to which appellate decisions have
recognized this defence is predicated upon a logic of (hetero)normativity in which the
threat of the ‘homosexual’ advance is not homosexuality per se, but rather, symbolic
feminization. This notion of symbolic feminization is theorized and tested through
its application to appellate cases. The ‘homosexual’ advance defence is most often
rejected because it has the potential to destabilize the fiction of a (hetero)normative
masculine subject as impenetrable. Nevertheless, in some appellate cases, the threat
of symbolic feminization was ruled to be imminent and its deadly defence worthy of
the court’s consideration. In a unique case, R. v Valley (1986), the court located
‘homosexual’ threat by recasting the violence of emasculation through the figure of
the ‘S-M homosexual’. Fleshed out as predatory, sexually aggressive and hyper-
masculinized, the ‘homosexual’ could now pose an imaginable threat to normative
masculinity.
I am of the opinion that the accused perceived this [i.e. a ‘homosexual’ advance]
as a real threat and as a danger to him, both physically and emotionally, in his
perceived image of himself as a male person. (Comments made by trial judge,
Miller J., in R. v Fraser (1980): 507)
SOCIAL &LEGAL STUDIES 0964 6639 (200309) 12:3 Copyright © 2003
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
www.sagepublications.com
Vol. 12(3), 311–333; 034849
PROVOCATION IS a partial defence to murder. As defined by section 232
of the Canadian Criminal Code,1it is ‘[a] wrongful act or insult that is
of such a nature as to be sufficient to deprive an ordinary person of the
power of self-control [. . .] if the accused acted on it on the sudden and before
there was time for his passion to cool’. In reviewing the critical literature on
the informal defences of ‘homosexual advance’ and ‘homosexual panic’2(see
for example, Banks, 1997; Comstock, 1992; Department of Justice Canada,
1998; Howe, 1997; MacDougall, 2000; Mison, 1992; New South Wales
Working Party, 1998), the issue of provocation raises the spectre of homo-
phobia.3Legal advocates for the reform of the partial defence of provocation
argue that the homosexual advance defence is a ‘misguided application of
provocation theory and a judicial institutionalization of homophobia’ (Mison,
1992: 136). As expressed by Kathleen Banks, ‘[t]he “homosexual panic”
defence is a form of institutionalized homophobia that perpetuates paranoia
of gay men and lesbians and justifies extreme violence in the face of a “homo-
sexual confrontation”’ (1997: 371). Banks’ impassioned rhetoric blurs the
accuracy of what she is arguing – as there is no ‘homosexual panic’ defence
per se in Canadian law. Like the American legal scholar Robert Mison, I
have not located a single reported case in which a female defendant invoked
the homosexual advance defence after being accused of killing an alleged
lesbian attacker (Mison, 1992: 135, ftn. 7). However, the term ‘homosexual
panic’ does encapsulate the homophobia that lies at the heart of such a
defence. Hyperbole aside, the issue of provocation by a homosexual advance
produces a figure of homosexual threat against which it is excusable to use
lethal force as long as the accused can prove that he was legally, and reason-
ably, provoked.
In order to comprehend the complexities of the ‘homosexual’ threat within
the legal domain of the provocation defence, it is necessary to ask a series of
theoretical questions that explore the frailties of the masculinized subject
position. As noted in the epigraph, what is this perception of male person-
hood to which Judge Miller refers in R. v Fraser (1980)? How is it that a
‘homosexual’ advance is constituted as a threat to masculinity? How is it that
words or gestures between men can be perceived as a provocative ‘wrongful
act or insult’ worthy of law’s sanction? Why are some ‘homosexual’ advance
defences rejected and others believed? Within this theoretical paradigm of the
masculinized subject position, how do we understand reasonable ‘homo-
sexual’ threat when both the deceased and the accused have had a sexual
history with men? As in the case of R. v Valley (1986), where and how can
‘homosexual’ threat be located in a sexual advance between ‘homosexual’ men?
As a starting point, I offer this observation: the sexual advance defence has
been used successfully and exclusively in cases involving sexual advances and
their lethal responses between men. Commenting on the ways in which the
informal provocation defence of sexual advance has been used in US criminal
law, Mison remarks that ‘[t]his sexual-advance defense [sic] could be used by
a male or a female who claims that he or she killed in reaction to the victim’s
sexual advance. As the law now stands, however, only a homosexual advance
312 SOCIAL & LEGAL STUDIES 12(3)
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