The homosexual advance defence in Australia: An examination of sentencing practices and provocation law reform
| Author | Rebecca McGeary,Kate Fitz-Gibbon |
| DOI | 10.1177/0004865817749261 |
| Published date | 01 December 2018 |
| Date | 01 December 2018 |
Article
The homosexual advance
defence in Australia: An
examination of sentencing
practices and provocation
law reform
Rebecca McGeary
Deakin University, Australia
Kate Fitz-Gibbon
Monash University, Australia
Abstract
In May 2015, the judgment of the High Court of Australia in Lindsay v The Queen reignited
debate surrounding the use of the partial defence of provocation in cases involving a non-
violent homosexual advance. Lindsay re-established the legal possibility that a man provoked
enough to lose self-control and commit lethal violence in response to a non-violent homo-
sexual advance could be convicted of manslaughter by reason of provocation rather than
murder. The judgment arrived in the midst of two decades of national law reform activity,
whereby all Australian jurisdictions have either introduced or proposed reform to abolish or
restrict the application of the controversial partial defence of provocation. In doing so, cases
involving a homosexual advance defence are increasingly shifting to the realm of sentencing.
This article offers a timely analysis of the sentencing of homosexual advance defence cases in
New South Wales and Queensland. In doing so, it examines the judicial treatment of a
defendant’s claim of a ‘special sensitivity’ to a homosexual advance, problems arising from
the private nature of an alleged homosexual advance and the treatment of intoxication in
sentencing. It reveals that reform of legal categories alone may not be sufficient in ensuring a
just legal response to homicides incited by alleged homosexual advances.
Corresponding author:
Kate Fitz-Gibbon, School of Social Sciences, Faculty of Arts, Clayton Campus, Monash University, Clayton, Victoria
3800, Australia.
Email: kate.fitzgibbon@monash.edu
Australian & New Zealand
Journal of Criminology
2018, Vol. 51(4) 576–592
!The Author(s) 2018
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0004865817749261
journals.sagepub.com/home/anj
Keywords
Homicide law, homosexual advance defence, law reform, partial defence of provocation,
sentencing
Date received: 1 June 2017; accepted: 23 November 2017
On 6 May 2015, the High Court of Australia’s judgment in Lindsay v The Queen
reignited debate surrounding the use of the partial defence of provocation in cases
involving a non-violent homosexual advance (Lindsay v The Queen [2015] HCA 16,
hereinafter Lindsay HCA). In Lindsay, the victim, Andrew Negre, allegedly offered to
pay Michael Lindsay for sex (Lindsay HCA, at 10) to which Lindsay responded by
punching and kicking the deceased while he was on the floor, then repeatedly stabbing
him. Following a contested trial in the South Australian (SA) Supreme Court, the jury
found Lindsay guilty of murder, despite being directed by the judge to consider prov-
ocation on the basis of the homosexual advance made towards the accused (Lindsay
HCA, at 10). On appeal, Justice Peak dismissed Lindsay’s appeal, stating the need to
recognise contemporary attitudes expected in 21st-century Australia and ruling that the
trial judge ‘was incorrect to leave the partial defence of provocation to the jury in this
case’ (R v Lindsay [2014] SASCFC 56, at 236). While for many in the SA legal com-
munity, the Court of Appeal decision appeared to remove the homosexual advance
defence (hereinafter HAD) from the confines of the provocation defence, the 2015
High Court judgment overturned the decision of the Appeal Court and in doing so
re-established the legal possibility that a man provoked enough to lose self-control and
commit lethal violence in response to a non-violent homosexual advance could be con-
victed of manslaughter by reason of provocation rather than murder. In doing so, it
reaffirms the need to reconsider the law’s treatment of the homosexual advance defence.
The HAD arises where a defendant raises the partial defence of provocation by
arguing a loss of self-control when confronted by a homosexual advance. If successfully
raised, the partial defence of provocation reduces a charge of murder to manslaughter in
cases where it is found that a defendant lost their self-control in response to the alleged
provocative conduct. While the legislation of each Australian state and territory juris-
diction varies, generally in order to claim provocation, three requirements must be
established:
•There must be evidence of something constituting provocation
•The accused must have lost self-control due to the provoking incident
•The provoking incident must be sufficient enough to cause an ordinary person to lose
self-control and form an intent to kill or cause grievous bodily harm. (Victorian Law
Reform Commission, 2004, p. 23)
The latter requirement involves the application of the ordinary person test, which
‘assesses the gravity of the provocation with reference to relevant characteristics of the
McGeary and Fitz-Gibbon 577
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