Provocation and Non-violent Homosexual Advances
| Author | Sarah Oliver |
| DOI | http://doi.org/10.1177/002201839906300632 |
| Published date | 01 December 1999 |
| Date | 01 December 1999 |
| Subject Matter | Article |
Provocation
and
Non-violent
Homosexual
Advances
Sarah Oliver
Robert
Gordon
University
Some controversial areas of provocation have
been
developed to a
significant
extent
in foreign jurisdictions before migrating to England
and
Scotland. The most obvious example is
that
of
the
'battered
women
defence' which modifies acrucial aspect of
the
plea for
the
particular and
unusual
situation in
hand.
The same point can be said of
the
so-called
'non-violent homosexual advance' defence,
which
has received a sig-
nificant
amount
of coverage (most notably in Australia)
but
has yet to be
discussed in
any
detail here. The particular aspect of provocation dis-
cussed here is
the
relevance of
the
proportionality requirement in cases
of homosexual advance.
Given
the
lack of
comment
on
this area in
the
UK, it is helpful to
outline some cases
and
terminology. In general, cases involve
non-
violent advances
made
by homosexual men. The kind of advance
made
differs widely,
but
in all instances
the
result has
been
to provoke a fatal
attack, usually of a violent, if
not
frenzied kind. The accused is often
described as having
entered
astate of mind labelled 'homosexual panic'.
Examples of
the
provocative act
and
response
can
be found across most
jurisdictions. In
the
English case of R v
Howard,
)
the
deceased
had
enticed Howard back to his flat
and
grasped
him
by
the
testicles, prompt-
ing a fatal attack
with
ahammer.
In
a Scottish case,
the
deceased
had
put
his
hand
on
the
accused's thigh
and
asked for a klss.? Examples from
the
Commonwealth include
the
Australian case of
Green
v
R,3
where
the
deceased
had
slid into
bed
naked with
the
appellant
and
started touch-
ing his groin,
whereupon
the
appellant attacked
him
with
a pair of
scissors. In New Zealand,
the
defence was allowed
where
the
deceased
had
placed his
hand
on
the
accused's thigh and smiled at him, triggering
a flashback to childhood sexual abuse."
Contrasting approaches
to
the
proportionality
requirement
The classicdoctrine of provocation requires
that
the
response following
the
provocative act bears some proportionate relationship to
the
provo-
cation, although exact equivalence is
not
required. This raises prohlems
in relation to provocation by homosexual advance. As will be shown, it
1 7 Cr App R (5) 130.
2
Robertson
v HM
Advocate
1994 JC 245.
3 High Court of Australia.
unreported-available
at
h//p://WMY.austlii.edu.au/au/cases/cth/high_ct/unrep349.html.
4 R v
Campbell
[1997J 1
NZLR
16. available from Lexis.
586
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