A reminder that gay panic is still a valid defence for murder in South Australia

Parliament House, Adelaide (eGuide Travel via Flickr)

The Government of South Australia continues to delay the repeal of the problematic “gay panic” defence for murder, despite having promised that the legislation would be abolished before the end of 2019.

The gay panic defence is not explicitly named as such in law, but has been enacted through precedent cases, and is founded on the notion that a fear of real or perceived homosexual advances can provoke a person into killing. It forms part of the murder defence of provocation, which is not a complete defence, but can be used to reduce the severity of a charge from murder to manslaughter—a charge used more generally to cover unintentional killings.

South Australia remains the last jurisdiction in Australia to allow gay panic to remain a part of state criminal legislation.

In a statement last week, a spokesperson for the South Australian Attorney-General's Department did not commit to a firm timeline for the removal of the gay panic provision, and made no mention of whether the law of provocation would be repealed in its entirety, writing: “While the Government had hoped to finalise legislation before the end of the year, there are still matters that need to be resolved. The Government is aware this is an important matter, however it is also a complex one which could have a number of unfortunate consequences if handled incorrectly."

"In addition, given the implications on the prosecutorial work undertaking [sic] by the Office of the Director of Public Prosecutions, the Government has been keen to hear the views of the incoming DPP, who commenced work in mid-November."

"Consultation with key stakeholders is continuing and it’s hoped legislation will be introduced to Parliament this year."

South Australia's Attorney-General, Vickie Chapman, called a press conference in April 2019—several weeks after this publication questioned her office as to why the gay panic defence remained part of South Australia's criminal legislation—to explicitly promise that the gay panic aspect of provocation legislation would be abolished before the end of last year.

The statement Chapman gave at that press conference gained attention around the country, as media outlets reported that South Australia had committed to abolishing the law, joining every other Australian state and territory.

Chapman has established a years-long record of unfulfilled promises to repeal gay panic and provocation law in South Australia, after making repeal of the law one of her election campaign promises in February 2014, then promising again, 10 months later, in South Australian Parliament, that her party would “take action” to remove the law in early 2015, before promising yet again, in April 2019, to repeal the law.

The South Australian State Government has already undergone a lengthy consultation process on provocation law, with the Government commissioning the South Australian Law Reform Institute—an independent, non-partisan, law reform body based at the Adelaide Law School—to write two reports on the law over several years, the first of which was published in April 2017, and the second, in April 2018.

Chapman has previously stated publicly that the provocation defence is “left over from the dark ages of giving usually men an excuse for their behaviour which is a result of their uncontrolled temper.”

Read the South Australian Law Reform Institute reports on provocation here:

Stage 1 Report: Provocation (April 2017)

Stage 2 Report: Provocation (April 2018)