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ADRIAN HOWE*
The homosexual-advance defence is a misguided application of provocation theory and a judicial institutionalisation of homophobia.[1] Remember, the truths irrelevant. The fact that most of the cases associated with homosexual panic are in reality gaybashing in that long productive Australian tradition: thats besides the point. What we have to ask is why the defensive fictions of apocalyptic poofs work so well.2 If every woman killed every man who made unwanted physical advances toward them, there would be a lot of dead men around.[3]
Exculpatory defences, so-called because they negative or mitigate criminal culpability, tend to provoke comment. Some, for example, self-defence or duress, confer immunity from penal liability; others, notably provocation, change the nature of that liability, from say, a murder to a manslaughter conviction.[4] No wonder that they incite debate. The provoking gesture can be a case which occasions outrage or, perhaps, a case which appears to signal a shift in judicial understandings of one of the defences. Or it can be a perception, based on a reading of a class of cases, that an exculpatory defence is operating in a biased way. Recent critical commentaries on the question of gender bias in the provocation defence are a case in point. Is the defence available to women on an equal footing with men? Does it operate as a partial excuse for men who kill their wives? Have the dead women provoked their own demise?[5] Indeed, could it be said that in all cases where provocation is raised successfully, the victims have provoked their own demise? And what is the message when a defendant is acquitted after successfully arguing self-defence and provocation that the victim deserved to die because of some legally sanctioned reason, or at the very least, that the victim contributed to their own death, this time because of a legally mitigating reason?
Exculpatory defences have attracted considerable attention from Australian law scholars and government bodies in recent years. For example, when the Law Reform Commission of Victoria was given the task of formulating proposals which would provide a more just law of homicide in the late 1980s, serious consideration was given to calls for the abolition of the provocation defence.[6] Even more currently, arguments for the abolition of the provocation defence have also been put to the New South Wales Law Reform Commission, which has yet to release its final report on partial defences.[7] And law journals continue to groan today under the weight of debate about the law of provocation.[8] Does the provocation defence carry an ethnic or gender bias? Should it be reformed? Should provocation be tested objectively or subjectively? On this last point, the objectivists appear to have won the day over the subjectivists on the one hand, and the abolitionists on the other. Two High Court decisions in the space of five years have given a firm imprimatur to the objective standard.[9] But just when the Australian law on provocation appears to have been settled, along comes a new contender to unsettle it all again. The new kid on the block is the so-called Homosexual Advance Defence, which is currently arousing considerable concern in some quarters and which is destined to rekindle debate about exculpatory defences in this country.
The homosexual advance defence (HAD) has received a lot of publicity lately, especially in New South Wales where a review has recently been conducted by the Attorney Generals Department.[10] The review arose because of public outrage (or rather, gay press outrage) over a number of recent murder trials in which male defendants have alleged that they acted in self-defence or under provocation in response to a sexual advance made by another male. In August 1996, the New South Wales Attorney Generals Departments Working Party on the Review of the Homosexual Panic Defence issued a Discussion Paper calling for comment on its proposals. This article could be read as just such a comment, but it is more than that. The discovery of the operation of HAD in Australia provides an excuse to revisit the provocation defence in order to reinforce my argument that provocation operates as a deeply sexed excuse for murder and should be abolished.[11]
While it is well to concede that I am driven by a desire to lurch back into an attack on the law of provocation, this article is also motivated by a commitment to the gay and lesbian struggle against the laws complicity with homophobia. To that end, the analysis has been informed by a reading of the local and overseas critical literature on HAD as well as by a range of theoretical analyses produced under the sign of poststructuralism Foucauldian analyses which dispute the self-evidence of law, sexuality and sexed identity;[12] feminist analyses of the way law works as a gendering strategy to sex and discipline legal subjects;[13] queer legal theories which problematise laws complicity in heterosex;[14] Derridian readings, including gay readings, of law as violence,[15] and finally, gay and lesbian legal studies, especially those which explore the ways in which law plays a constitutive and symbolic role in representing and thus forming specifically gay and lesbian sexed identities.[16] However, these theorisations will not intrude into the discussion because I do not want them to get in the way of my two main arguments first, that HAD operates in Australian courts in demonstrably homophobic ways and second, that the operation of this defence provides further evidence that the provocation defence should be abolished. From another perspective, an always already Foucauldian perspective,[17] my aim here is to provide a brief history of the present of HAD, but such a history needs to be accessible if it is to assist in working against HAD and the law of provocation.
So: I am deeply concerned about the inherent violence of demonstrably homophobic defences such as HAD. That is, I am adamantly opposed to laws representation of homosexual men as having provoked their own demise, a representation made possible by a successful provocation plea reducing murder to manslaughter in HAD cases. But then, I am just as adamantly opposed to laws enabling of killers of women to benefit from exculpatory defences. Moreover, to make my case against the law of provocation, I am prepared to go so far as arguing that killers of heterosexual men should not be able to plead provocation.
When Australian gay activists set about researching the operation of HAD in Australia, they discovered that it had a history. In a previous incarnation it was the Homosexual Panic Defence (HPD), a label invented by gay activists in the United States in the 1980s in order to get a handle on a group of cases in which male defendants pleaded self-defence or provocation in relation to a sexual advance by another male. Moreover, the Australian analysts found that these cases had disturbingly similar scenarios and similar outcomes to a cluster of cases in New South Wales in the 1990s.[18] Their research also revealed that HPD originally had a very narrow scope. It referred to defendants whose repressed homosexuality allegedly led to a neurotic reaction when confronted by a homosexual advance.[19] They learnt too that HPD took the form of an insanity defence or, in jurisdictions that still had the rule, a diminished capacity defence. According to the logic of HAD, a sexual advance by a gay victim triggered a violent psychotic reaction in the latent or repressed homosexual defendant, causing him to temporarily lose the capacity to distinguish right from wrong, thereby absolving him from criminal responsibility.[20] And in some cases the defendants panicked at the mere suggestion of homosexual activity.[21] Australian analysts of HAD are indeed fortunate to be able to draw on North American studies tracing the transformation of a diagnosis of homosexual panic into a legal defence. For these studies which might be read as Foucauldian genealogical digs[22] have provided this defence with a critical history. That history begins with Edward J Kempf, the clinical psychiatrist who discovered (that is, invented) a psychological order which he called homosexual panic, or rather acute homosexual panic in 1920.[23] Surveys of the early North American HPD case law reveal that homosexual panic was first treated as a mental defect and raised in an insanity or diminished capacity defence. It also includes examples from the 1960s through the 1980s of what today are called HAD cases cases where juries have been asked and sometimes persuaded to bring in not-guilty verdicts in murder trials where male defendants have alleged that they have been a supposed victim of homosexual seduction, even though the law did not provide for such a defence.[24] And this critical history has even discovered the first judicial mention of homosexual panic, in a 1967 case where the defendant claimed that his violent assault resulted from acute homosexual panic brought on him by the fear that the victim was molesting him sexually.[25] No doubt Foucault would have been impressed that North American scholars have traced the origins of todays HAD defence back to its psychiatric beginnings, for that was precisely the path he followed in his genealogical research on the psychiatrisation of criminal danger.[26] However, he would have been less than impressed that some of these early critics tended to accept the psychiatric language of latent homosexuality and of disorders relating to homosexuality. For example, the argument that psychiatric disagreements about homosexual panic suggest that courts lacking expertise in this area should refrain from accepting the defence until it is refined, is too self-limiting for any self-respecting Foucauldian. It can only lead to an insistence that courts entertaining the defence should require a threshold of proof of the defendants latent homosexuality to prevent any defendant invoking the defence when he killed a homosexual man.[27] From a Foucauldian perspective, what is required for an analysis of HPD and HAD is not proof of latent homosexuality, but rather a thorough genealogical excavation of the controlling discourses which constitute homosexuality as a disorder and make such defences possible. These caveats notwithstanding, the early critiques of HAD do make an important contribution to the argument against HAD and, by extension, against the provocation defence. For in the process of unpacking HADs history, the North American commentators not only highlighted the inherently homophobic nature of the defences, they also identified a host of theoretical, evidentiary and sociological problems attached to these defences[28] problems which warrant consideration here.
The main concern of the early critics was to show that courts which accepted a homosexual panic defence when they would not accept a black panic or sexual panic defence, were reinforcing homophobia by sending out a message that disproportionate violence against gay men would be excused, if not countenanced by law.[29] To this end they set about demonstrating how the classification of homosexual panic as a mental defect or form of insanity was theoretically problematic, based as it was on the premise that self-discoveries of homosexuality take the form of a psychological disorder. As the American Psychiatric Association had declassified homosexuality as a mental illness, it was unclear why someone who was latently gay or lesbian should be classified as mentally disturbed.[30] Furthermore, the underlying premise of homosexual panic that latent homosexuality is provable implicated fundamental assumptions about human sexuality which were themselves unproven. For example, according to the theory that sexual orientation is a continuum, anybody not acting on their homosexual impulses could be classified as latently homosexual. In any event, proof of latent homosexuality was highly manipulable by defendants.[31] Clearly, legal recognition of homosexual panic as a mental disease or defect not only diminished individual responsibility for the consequences of bias and prejudice, it also reinscribed such behaviour as unchangeable and thus unavoidable.[32]
Evidentiary questions also arose in relation to the alleged homosexuality of the victim. In particular, the introduction of evidence of a victims homosexuality could be more prejudicial than probative. Cases where courts had permitted defendants to introduce such evidence to support claims of self-defence to a homosexual advance by the victim demonstrated just how inflammatory such evidence could be to a jury. It followed that,
because of its prejudicial impact, evidence of a victims sexual preference should not be admissible unless it is essential to prove a victims previous use of force in sexual encounters.[33]
Equally problematic, the so-called gay advance defence had resulted in reductions in sentences for convicted offenders, mitigation in the degree of offence for which a defendant was convicted, and acquittals.[34] Referring specifically to cases where the gay advance defence had been invoked to reduce murder to manslaughter by proving provocation, critics insisted that a gay advance should not qualify as heat of passion under accepted standards standards requiring a defendant to have acted in the heat of passion caused by provocation sufficient to cause a reasonable person in similar circumstances to lose his or her control: Merely experiencing fear or hatred of gay people in response to a homosexual overture should not suffice to provoke a reasonable person to lose his or her selfcontrol and resort to deadly force.[35]
In this connection, courts should not reinforce anti-gay prejudices held by ordinary citizens. As for the use of the gay advance defence to show self-defence, this was similarly flawed in that the self-defence standard requires defendants to have had a reasonable fear, given their objective circumstances, regardless of their particular mental abnormalities or value systems.[36] Clearly, a defendants violent response to a non-violent gay advance was unreasonable and did not satisfy that standard.
As if all this is not enough argument against HPD and HAD, one critic, Gary Comstock, set about dismantling HPD by examining its origins in Kempfs theory of acute homosexual panic, which Kempf defined as a panic due to the pressure of uncontrollable sexually perverse cravings.[37] Tellingly, in none of Kempfs nineteen cases did a sexual advance or attack by another person cause the panic or trigger retaliatory physical violence. Kempfs patients were consistently selfpunishing, not outwardly violent.[38] The implication was clear:
As a psychological disorder which neither sexual advance to the patient by another person nor violent attack by the patient of another person are causal or symptomatic, acute homosexual panic would seem to be inappropriate as the basis of a legal defence for men who claim to have killed another man to ward off his sexual advance.[39]
In short, there was a considerable discrepancy between cases reported in the psychiatric literature and the cases involving immediate reaction or sudden panics described in the legal defences. Patients diagnosed with acute homosexual panic demonstrated a helplessness, passivity and inability to be aggressive far removed from the picture of the explosively violent man constructed by lawyers deploying a HPD defence.[40] The legal argument that this disorder was likely to result in extreme violence therefore had no psychiatric basis.
Not only is the panic, as the psychiatric discipline understands it, not prompted by a sexual advance or assault, but the patients response is not one of retaliation or self-defence.[41]
This suggests that lawyers had either misappropriated the disorder or failed to distinguish between a predominate sexual drive and a predominate aggressive drive. In Comstock's estimation, men suffering from the latter for example, men who respond violently to a sexual advance from another man should properly be said to be suffering from an acute aggression panic.[42] It follows that men who claim to have acted violently because of a sexual advance would seem to have a firmer basis in a legal defence based on acute aggression panic disorder in that they have lost control of their aggressive drive not their sexual drive.[43]
Comstock then asks, apparently without irony, why lawyers have not pursued an argument based on acute aggression panic. He suggests, again without apparent irony, that it is because a legal defence perhaps has more credibility if it can attach itself to a disorder such as the homosexual panic disorder which is generally recognised within the psychiatric profession. He then speculates can this really be without irony? that this defence manoeuvre can be explained by the lawyer's assumption that juries are more likely,
to sympathise with a defendant who claims to have killed because of confusion and rage experienced during a same-gender sexual attack than with one who claims to have difficulty controlling his violent behaviour generally.[44]
Well, yes. While it seems extraordinary that Comstock could really be shocked that lawyers are shaping homosexual panic to suit the needs of their clients,[45] he does make more headway delineating the problematic effects of HPD once it is transformed into HAD. In particular, he notes that defence attorneys tend to exaggerate the alleged threat and courts do not appear to be interested in establishing the difference between a sexual advance and a sexual attack. Also problematic, some judges and jurors seem to share a bias that a sexual advance by a gay man poses a danger meriting retaliation.[46] Such a bias, as we shall see, appears to be shared by some Australian judges and jurors as well.
So much then for the early North American critiques of HPD and HAD which tended to focus on questions pertaining to the scientific status of the disorder and its unscientific perversion by the legal system.[47] It might be noted that the preoccupation of the commentators with HPD rather than HAD cases, reflects the predominance of HPD-cases in the United States, which in turn might be seen as reflecting what one Australian commentator calls the American tendency to overcome deficiencies in the law of self-defence and provocation by invoking mental illness or incapacity.[48] We might note too that recent North American commentaries have moved away from HPD to a consideration of HAD and its relationship with the law of provocation and self-defence in the United States. The ensuing debate about whether a non-violent homosexual advance should constitute sufficient provocation to incite an ordinary person to lose control and kill, and thereby to be convicted of manslaughter in lieu of murder, has informed the recent Australian discussion of HAD.[49] The debate therefore warrants a close analysis.
HPD and HAD cases have a history in the United States, a history long enough to incite comment on the implication of law, especially provocation law, in the defences. The case against a nonviolent homosexual advance being permitted to constitute sufficient provocation to mitigate murder to manslaughter has been made by Robert Mison. In his view, HAD is a misguided application of provocation theory and a judicial institutionalisation of homophobia.[50] For Mison, the main problems with rationalisations of the provocation defence whether they follow a provocation as justification or provocation as excuse analysis is that they focus on the wrongfulness of the victims behaviour.[51] The wrongfulness in these cases, however, is homosexuality. Mison worries that a homosexual advance might be considered an affront to the prevailing norms capable of offending a reasonable man[52] and that,
the typical American juror a product of homophobic and heterocentric American society will evaluate the homosexual victim and homosexual overture with feelings of fear, revulsion and hatred.[53]
In Misons view, courts must insist that what is germane is not that the ordinary person would not be provoked by a homosexual advance, but rather that a reasonable person should not be provoked to kill by such an advance.[54] That is, homophobia should not be permitted to play a role in the law of provocation because it undermines the fairness and rationality of jury decisionmaking, blames gay victims instead of their victimisers, and frustrates positive social change.[55]
Thus, HAD should be rejected because of its inherently homophobic nature, but this does not exhaust Misons list of objections. Other factors to be considered include HAD's enormous potential for abuse by defendants who did not act in the heat of passion in their killing frenzy; its generation of a mini trial highlighting the sexual orientations of the victim and (in the United States) the defendant, thereby distracting the jury from the crucial issue the defendants guilt; the introduction of highly prejudicial and often irrelevant evidence which diverts the jurys attention.[56] And as if all this were not enough, Mison suggests that the continued acceptance of HAD as legally sufficient provocation subverts legislative initiatives condemning hate-motivated violence.[57] Finally, when defendants in HAD cases are not convicted of murder, courts and juries reinforce the view that homosexuality is culpable behaviour and that gay men do not deserve the respect and protection of the criminal justice system.[58] It follows that the continual acceptance of HAD is an unacceptable affirmation of homophobia.[59]
Misons argument has provoked a rejoinder by Joshua Dressler, a North American law academic with a long standing interest in the law of provocation.[60] As Dressler makes clear, the question of whether a non-violent homosexual advance (NHA) should mitigate a homicide raises issues which go beyond the subject of prejudice against gay males. It raises fundamental questions about the rationale of the provocation defence and, tellingly, about the extent to which the defence is more-than-ordinarily male-orientated and, therefore, subject to heightened criticism from a feminist perspective.[61] Dressler is surely right on both counts: Misons argument that a homosexual advance is insufficient provocation does raise the broader question of the provocation defence and of the heightened feminist criticisms of that defence. For as Dressler correctly points out, Misons arguments against the application of the provocation defence in NHA prosecutions could be used to justify the abolition of the provocation doctrine. Dressler, an advocate of the provocation defence, is alarmed by such a prospect. Admittedly, he does find certains aspects of the defence troubling: notably, what it says about humanity is unappealing, and while violent loss of self-control is a human failing, he concedes that it is particularly a male weakness. But the provocation defence has deep roots in Anglo-American jurisprudence and Dressler wants to see it remain so rooted.[62] Simply, the law differentiates between more and less serious offences, and one important way that it does so is by recognising excuse defences. Moreover, as far as Dressler is concerned, most men, including heterosexuals and gay men would justifiably become indignant if subject to an unwanted sexual advance.[63] So, contrary to Misons view that HAD is inherently homophobic, there is a valid, non-homophobic basis for recognising a partial excuse in many sexual-advance cases.[64] In short, Dressler believes that HAD is a valid defence.
As we shall see, Dresslers argument for retaining HAD wins the day in the New South Wales Attorney Generals Working Party Discussion Paper on the homosexual advance defence. However, as I suggest below, Dresslers argument is problematic. Certainly, Dressler is right when he says that Misons argument leads logically to the abolition of the provocation defence. But he does not pursue his own logic. Furthermore, I will suggest that Mison is right, (although for inadequately expressed reasons), when he claims that judges should hold as a matter of law that a homosexual advance is not sufficient to establish a provocation defence.[65] But first let us consider the appearance of HAD in Australia.
The homosexual panic and advance defences have not been elevated to the status of separate pleas in Australian criminal law. Indeed, as far as HPD is concerned, it appears that killers have not been able, or in some cases even needed, to resort to this American-style defence, based as it is on a claim that an exceptional psychological state led to their violent attack.[66] But while these defences have no formal status, the concepts underlying them have been incorporated into pleas of provocation and self-defence in a number of recent Australian murder trials. One such case is the 1992 Victorian case of R v Murley,[67] analysed recently by Peter Johnston.[68] The Australian HAD story however, properly begins in New South Wales which boasts the first and largest number of HAD cases.
In late 1993, the Sydney gay press responded with alarm and outrage to the acquittal of Christopher McKinnon who had been charged with murdering a homosexual man.[69] He had pleaded not guilty, claiming that his victim had made homosexual advances. Despite evidence admitted in court that McKinnon had discussed the killing with friends, telling them he had rolled a fag, the jury acquitted him, apparently accepting that he had acted in self-defence. Under headlines such as Roll a Fag and Go Free, the gay press protested that in bringing down a unanimous verdict, the jurors had accepted McKinnons version of events, given in an unsworn dock statement, that he had been attacked by his victim, thereby ensuring that he left the court an innocent man in the eyes of the law.[70]
The McKinnon case, the first of several in New South Wales identified as a HAD murder case,[71] was to become the catalyst for demands for a government inquiry into the use of a victim's sexuality as a defence to violent crimes and specifically into cases where juries had acquitted killers of gay men who had alleged that their victims made advances. Responding to protests about what one MP called McKinnons manifestly absurd acquittal, the Attorney-General declared that HPD was not a defence known in law and that he had not heard of it until the gay press rang his office for comment.[72] He was soon to hear a great deal about HAD from the gay press and from gay activists who held a Forum on the Homosexual Panic Defence in April 1999 4. Drawing heavily on the North American literature discussed above, the forum participants canvassed the use of the defences in recent Australian cases.[73] Attention was drawn to the fact that most of the defendants in the Australian cases did not rely on a claim of insanity or diminished responsibility, arguing their cases instead on the basis of self-defence or provocation on the part of the victim who was, in most cases, conveniently dead.[74] The proceedings of the forum, which were published in May 1995, contained an extensive list of reported but mostly unreported New South Wales cases and some Victorian and South Australian cases. It also contained an appendix drawing attention to yet another HAD case, R v Bonner,[75] decided in May 1995, in which a man charged with murder was acquitted following a successful HAD defence.
By now the evidence was overwhelming that HAD had arrived in Australia and two months later, in July 1995, the Attorney General directed that a Working Party be established to review the operation of HAD in Australia. A year later, the Working Partys Discussion Paper was published, complete with an appendix listing thirteen cases in which a homosexual advance had been alleged in New South Wales between November 1993 and May 1995.[76] Noting that defendants in HAD cases relied on self-defence and/or provocation as opposed to insanity or diminished responsibility and also that the term HPD had negative connotations which might suggest that panic was a legitimate response to homosexuality, the Working Party began by adopting the term HAD.[77] Then after referring to research indicating that anti-gay violence was increasing in Australia, it set about examining the key legal issues raised by this defence. These were first, whether an allegation of a homosexual advance, without more, ought to be sufficient to raise self-defence and/or provocation. Second, there was the difficulty in disproving such an allegation, given that the accused is usually the only witness to the circumstances giving rise to the victims death. Third, HAD cases raised broad issues relating to the treatment of homosexuality by the criminal justice system and the community.[78]
Significantly, the legal issue which most taxed the Working Party was that of provocation. Examining the thirteen New South Wales HAD cases a number said to be sufficiently high to warrant concern[79] the Working Party noted that in all the cases which had resulted in acquittals or verdicts of manslaughter, the jury had been directed in relation to both self-defence and provocation. The law of selfdefence, however, did not pose much of a problem for the Working Party which noted that the main criticism levelled against the operation of self-defence in HAD-type cases in the United States centred on its failure to differentiate a sexual advance from a sexual attack.[80] The New South Wales cases were seen to be complicated by the defendant's allegations that the sexual advance had been followed by a violent struggle in which the victim was the primary aggressor. In each of the cases, the prosecution had argued that the actions of the victim were insufficient for self-defence, but ultimately, the question of whether self-defence had been disproved was a matter for the jury to assess on the whole of the evidence. The Working Party therefore concluded that there was no difficulty with the content of the law of self-defence, and that self-defence was capable of producing a just result in HAD cases.[81]
The law of provocation, however, was another matter entirely. In as much as juries had returned verdicts of manslaughter in two of the New South Wales cases, Dunn[82] , the question was fairly raised as to whether a non-violent homosexual advance should constitute sufficient provocation to incite an ordinary person to lose control and kill. Noting that the North American commentators were divided on this question, the Working Party took stock of the recent decision of R v Green,[84] in which a majority of the New South Wales Court of Criminal Appeal took the view that a non-violent homosexual advance was not sufficient to meet the objective test. In Green the alleged advance consisted of the victim getting into bed with the accused and touching his body and groin. The accused responded by repeatedly punching and stabbing the victim and was convicted of murder. On appeal, Priestley JA, with whom Ireland J concurred, said that on the evidence before them, the jury could hardly have come to any different conclusion. However,
This is not to say that the behaviour of (the victim) up to the point where the appellant lost self-control was not offensive and provocative. It is easy to see that many an ordinary person in the position of the appellant when (the victim) was making his amorous physical advances would have reacted indignantly, with a physical throwing off of the deceased, and perhaps with blows. I do not think however, that the ordinary person could have been induced by the deceaseds conduct so far as to lose self-control as to have formed an intent to inflict grievous bodily harm ....[85]
The ordinary person, in this view, is entitled to ward off a non-violent sexual (or is that a specifically homosexual?) advance with physical, but not murderous blows. But the sexed specificity of the kind of offensive and provocative advance which warrants violent retaliation is lost on the Working Party. Sheltering behind this latest Australian judicial pronouncement on the insufficiency of a HAD to ground a provocation defence, and also behind the excuse that it was not appropriate to suggest major changes to the substantive law at a time when the New South Wales Law Reform Commission had yet to release its final report on provocation, diminished responsibility and infanticide,[86] the Working Party declined to recommend that provocation should not continue to apply in HAD cases. The most it could recommend was that where provocation was raised, there was a strong need to limit the role that prejudice, if any, might play in a HAD trial and jury deliberations, as well as a need to emphasise the difference between sexual advances and sexual attacks.[87]
To this end, it suggested a judicial direction which is to be given in murder trials where provocation is raised on the basis of an alleged homosexual advance by the victim. This direction, which is based closely on one suggested by Dressler, is to follow the standard direction on the ordinary person. That is, the jury is to be instructed that the ordinary person would not act violently as a result of homophobia and that,
In this regard, the law does not treat a homosexual advance if you find one was made by the deceased as an act of provocation to any lesser or greater degree than if he had made a comparable sexual advance upon a woman.[88]
The Working Party has also proposed a judicial direction, designed to curb homophobia in the jury room, to the effect that if jurors disagree morally with the deceaseds behaviour and sexual orientation, they need to remember that this is a Court of Law and not a court of morals; that prejudice and emotion have no place in a court of law; that everyone is equal before the law; that, on the question of sexuality, a person's background is not of the slightest relevance, and that there should be no prejudice against the deceased or the accused on the basis of sexual orientation.[89]
Thus, as far as the New South Wales Attorney Generals Working Party is concerned, the provocation defence is here to stay and HAD can be curtailed by tinkering with jury directions in HAD cases. But the question is: how adequate are its proposals? What would a theoretically-grounded critique make of them? And how convincing are the North American arguments on which they are so closely based?
While HAD and HPD have attracted considerable attention in the gay press and now the Attorney Generals Department in New South Wales, critical theoretical analyses are only just beginning to emerge in Australia. Early explanations of the emergence of the defence tended to blame homophobic juries. For example, a coconvenor of Sydneys Lesbian and Gay Anti-Violence Project suggested that:
In the minds of some jurors is maybe the idea that men are seen as sacred when it comes to sex. People say if a man assaults a woman thats almost natural but if a man attempts to do it to another man, that is unnatural and abhorrent and all hell should descend on the perpetrator.[90]
The answer is to educate potential jurors about homophobia.[91] For others however, the problem lies just as much with the legal system, in as much as homophobic attacks were condoned by current police practices and judicial findings.[92] Few however, have pursued Dean Kileys example in pinpointing law itself, specifically, the law of self-defence and provocation, as the crux of the problem, a problem which in his view warrants the distribution of the following very Brief Guide for the Perplexed Juror: panic > self-defence <=> acquittal: rage < provocation <=> mitigation.[93] In an impassioned, poststructuralist approach to homosexual panic and advance defences, or simply, homophobic defences, Kiley unpicks the loop-hole, or glory-hole in legal procedure which permitted lawyers to appeal to jurors homophobic prejudices:
With tactics aforethought. With professional, perhaps even personal, knowledge of the power of such an appeal and the extra-legal un-logical responses it would elicit.[94]
Thanks to the hermetically sealed unideological nature of the legal system, a man can be killed and all the old homophobic myths are brought back from the dead so the deceased can be gaybashed all over again in the safety and privacy of the courtroom.[95] Kiley is unrelenting in his attack on the exculpatory defences deployed in gaybashing cases:
Remember the truths irrelevant. The fact that most of the cases associated with homosexual panic are in reality gaybashing in that long productive Australian tradition: thats beside the point. What we have to ask is why the defensive fictions of apocalyptic poofs work so well.[96]
The defensive fiction at issue is the one built on the phrase unwanted homosexual advances, a phrase heard so often that it is on its way to becoming a legal cliche which is crying out for interrogation:
Would you like to tell the court your definition of this phrase? Well? Come on ... Does it refer to certain homosexual gestures? Or phrases? The touching of your person in a certain way, and if so, what way, where, how? What does it mean, since your defence rests on an unambiguous specifically sexual advance so threatening, so indistinguishable from assault, that you temporarily lost control and were forced to defend yourself with a level of violence no reasonable man would countenance?[97]
The problem is that such interrogations have not always been forthcoming from prosecutors in these cases. Admittedly, unsworn dock statements, the preferred mode of providing evidence in HAD cases and in provocation cases generally, have in the past severely curtailed the testing of the defendants evidence. Now that unsworn evidence has been abolished in Victoria and New South Wales,[98] this limitation on testing the evidence has been removed, but the question remains whether the legal cliche of an unwanted homosexual advance will be properly challenged in court. Certainly, notably lukewarm prosecutions in HAD cases give rise to concern.
Take for example the prosecution effort in the Victorian case of Murley, a case which serves to highlight all the problems identified by critics of HAD. Murley was charged with the murder of sixty-five year old Godfrey. It was not in dispute that Murley had accepted an invitation to Godfreys flat after drinking with him in a hotel or that he had subsequently attacked Godfrey with a knife, almost decapitating him, before robbing him and setting his flat alight. His defence team argued self-defence and provocation. As Peter Johnston points out in a recent article, the evidence supporting these defences was unimpressive. Because the defendant gave unsworn evidence, the Crown could not cross-examine him.[99] But the prosecution could and should have put up a strong challenge with other evidence that the defendent had said he wanted to roll a queer. It should also have challenged the evidence that the defendant had an alleged phobia about homosexuals.[100]
This alleged phobia was to become the core of the defence strategy. Rather than focussing on a stigmatising HPD, which required the defendant to show that he reacted violently to homosexual advances because of insecurities about his own latent homosexuality, the defence opted for a HAD-type strategy, a far preferable defence in terms of keeping ones masculine identity intact.[101] To ground this strategy, the defence concentrated on evidence of Murley's alleged fear and hatred of homosexuals evidence that he had been propositioned constantly by men since he was ten, that he was sick and tired of these advances, that he had grown a beard to disguise his boyish good looks, evidence from a forensic psychologist that he was obsessed with stopping any further homosexual advances being made to him.[102] But as Johnston points out, this evidence was flimsy it related to five incidents over a twelve year period, none of which involved actual sexual abuse and none of which were proved to be sexually motivated. As for the expert psychological evidence that an extraordinary aspect of the defendants personality was that he had an intense or excessive detestation or abhorrence of homosexual advances being made towards him, this opinion was formed on the basis of three consultations. Yet the prosecution did not bother calling their own psychologist, nor did they contest the defendants expert witness. In short, as Johnston says, the homosexual advance theory was never discredited during the trial.[103]
So: would the defendant have been acquitted if the prosecution had properly challenged this evidence? Johnstons suggestion that the acquittal was a perverse verdict, reflecting the jury's sympathy for the accused, is based on his assessment of the defence teams arguments. For self-defence to succeed, the jury has to be satisfied that the defendant believed on reasonable grounds that it was necessary to use deadly force in self-defence.[104] But how were the requirements of necessity and reasonableness met here? Even on the most generous reading of the facts for the defendant, it was questionable whether an acquittal based on self-defence was credible. A twenty-two year old man needs to stab a drunk sixty-five year old man, bash him senseless, leave him lying unconscious on the floor to get a towel to cover his head while he cut his throat, all to repel an alleged non-violent advance? The jury viewed this ultra-violent response as reasonable.[105]
As for provocation, the acquittal raised questions about the neutrality and effectiveness of the objective test. If an ordinary person had lost self-control in the defendants position, what does that tell us about the objective standard? Was an objective assessment enabled by the defence counsels submission to the judge that this was an attack where hes going to be sodomised, which is almost as grave as a lethal attack?[106] And even if the accuseds characteristics are attributed to the ordinary person in order to assess the gravity of the provocation, as the law now requires, would the ordinary person have reacted in the extraordinarily brutal way that the accused did? Or is the ordinary person a homophobe? Has the ordinary man been constructed as the ordinary man with an added hatred of homosexuals? Given pervasive homophobia in Australia, could it be excusable, even justifiable, for an ordinary man to be provoked by a non-violent homosexual advance to the point of killing the deceased?[107] Evidently, the jury thought so, but it did not stop there it acquitted the defendant of all charges.
Johnstons stated aim was to use the Murley case to demonstrate how a heterosexist and homophobic legal system allows defendants to literally get away with murder.[108] He also wanted to show how law constructs the homosexual in profoundly negative ways, and he does so in this harrowing reading of the trial transcript:
All we know about Godfrey is that he was a 65 year old former sailor, who had been married, but was now a loner, who drank at the local footy club where he was a cleaner. In the hundreds of pages of transcript this is basically all we ever know of him as a human being.[109]
The body of the dead homosexual is always constituted in memory through the trial discourses and forensic photographs, but he is otherwise erased as a person. He is painted by the defence as a sexual predator who attacks innocent, vulnerable young men. Yet we do not even know if Godfrey is homosexual and, crucially, the prosecution refers to homosexuality at best as an aberration not meriting assault.[110] By default, the Crown gave every indication that it shared with the defence and, ultimately the jury, a cultural assessment that an allegation of a homosexual advance can be a deadly serious and thus exculpatory matter for some men, no matter how feeble the evidence for the victims homosexuality, the defendants phobia or even the purported advance.
In this way, Johnston deepens the critique of HAD, a critique which has sought to locate the social meanings and social origins of gay-hate killings. According to Stephen Tomsen, such killings need to be framed against a history of homophobic violence and oppression of gays and lesbians and a history of male violence.[111] The issue of male honour and, conversely, the dishonour which follows from a homosexual pass must be taken into account as concern about masculine identity and honour appears to motivate many of the killers of gay men in HAD cases. Moreover, this masculinist logic also seems to have a degree of courtroom acceptance, creeping into the logic of the criminal law itself. Tellingly, Tomsen gives the example of the provocation cases in which men kill their women partners and then claim in defence one of the range of slights permitted by Anglo-American case law, such as female infidelity.[112]
Yet while Tomsen notes the parallels between provocation pleas in gay-hate and intimate homicide cases, and while he goes so far as to acknowledge feminist research which has demonstrated the group disadvantage to women that follows from the use of provocation in intimate homicides cases,[113] he stops short of calling for the abolition of the provocation defence. Johnston stops short of this too. Acknowledging feminist arguments for the abolition of the defence, Johnston refrains from expressing an opinion, concluding instead that in HAD cases, judges should refuse to let provocation go to the jury in cases where the evidence does not warrant it and: Whatever solutions are proposed, a homosexual advance should rarely be sufficient per se to justify a verdict based on either self-defence or provocation.[114]
As we have seen, the New South Wales Attorney Generals Department Working Party also chose this less radical option. At this point it might be pertinent to note that during the preliminary discussion in the Murley case, the defence counsel took the opportunity to warn the judge that in relation to provocation it would be a very brave judge who didn't leave it.[115] On the evidence of Australian commentaries to date, it would seem that if it takes a brave judge to withdraw provocation from a jury, it takes an even braver commentator to advocate its abolition. So that is what I will do now, suggesting that HAD cases assist in the making of a cumulative case against the provocation defence.
The discovery of HAD cases in Australia has been greeted with understandable outrage.[116] Here as in the United States, the defence is being used with various. degrees of success in murder cases in which sickening brutality has been inflicted on men for allegedly making a homosexual advance on another man. North American studies report that injuries to gay male victims of homophobic violence frequently involve torture, mutilation and beatings which evince an absolute intent to rub out the human being.[117] One study found that in most cases of homophobic murder, the victims were not just killed, they were frequently mutilated and strangled after being killed, leading one commentator to speculate that this overkill was a species of violence whose form conveys its expressive content: the medium is the message.[118] Australian gay-killing cases are measuring up to their North American counterparts. In the McKinnon case for example, in which the defendant was acquitted, the victim was punched before having his head rammed repeatedly against a wall. In Green, the victim was stabbed at least twenty times. And of course there is Murley, the near decapitation case. Such extreme violence, I suggest, should serve as a reminder of the old authorities which held that a particularly brutal mode of killing might restore the presumption of malice, thereby displacing the provocation.[119] Surely the violence inflicted in HAD cases is outrageous in its nature and beyond all proportion to the offence, and as such to be considered as the effect of a brutal and diabolical malignity, rather than of human frailty.[120] Unfortunately, juries do not always think so.
As we have seen, Australian critics of HAD cases have properly drawn attention to the wider context of violence against homosexual men and lesbian women.[121] They have also pointed to the laws complicity in this violence the complicity that is, of permitting provocation and self-defence pleas to go to juries on the basis of spurious and usually unsworn evidence (at least in the old cases), and thus of condoning homophobic violence. An acquittal in a typical HAD case, one involving repeated bashing or multiple stab wounds, exonerates the killer while a manslaughter conviction sends out a message that the killing is at the lower, less heinous end of the scale. No wonder then that acquittals and manslaughter convictions incite outrage in HAD analysts.
Reading the cases and the critiques, I have a sense of deja vu. Where have I heard it all before? I remember: in all those well-known Australian provocation cases in which it has been said that the woman victim provoked her own demise. Some aspects of the cases are different the woman victim is known to her killer and the violence, at least the violence of the final murderous act, may not be quite as sickeningly brutal as that reported in HAD cases. A single gunshot wound or blow to the head, or perhaps a quick strangling usually satiates the man provoked by his woman. But the court scripts of the provoked killers of gay men and possessed or once-possessed women are strikingly similar.[122] The script is an unsworn, untested statement in which a male defendant tells the court how his wife (or defacto or former wife) provoked him to lose self-control by telling him she wants to leave,[123] by leaving and/or commencing another relationship,[124] by taunting him even to the point of confirming his irrational fears of her adultery[125] and, of course, by confessing adultery.[126] Such provocations mitigate murder to manslaughter in the eyes of countless sympathetic juries. The defendants killing rage is excusable; an ordinary person in his place might have done the same.
I have argued elsewhere that nowhere, except perhaps in rape cases, is the gendered or, more accurately, sexed nature of law more apparent than in socalled domestic homicide cases in which men kill women and then claim provocation. I do not intend to rehearse that argument here.[127] Suffice it to say that countless provocation cases across all western jurisdictions indicate that laws grand-standing efforts to endow itself with a genderless ordinary person standard have failed miserably. All these cases confirm the view expressed so lucidly by Hilary Allen in her now classic analysis of English provocation cases:
The fact of sexual division is taken as a fundamental a priori of legal reasoning; it structures the legal argument from within, not simply at the level of particular cases, but at the deeper level of the legal logic itself.[128]
Further, the laws betrayal of its notion of a neutral legal person and, by extension, its fiction of a gender-neutral provocation defence, occurs at a still deeper level than that of legal argument. It seems that law cannot even allow itself to think or conceive of gender-neutral provocation such provocation is simply unthinkable.[129]
By extension, we might now ask: do HAD cases demonstrate that law betrays its fiction of an objective neutral person when it comes to considering allegations of non violent homosexual advances? Do HAD cases expose law's inability to even conceive of a gender-neutral sexual advance? Can a feminist analysis of HAD cases add anything to the provocation law debate?
The first feminist gloss which I would give to the HAD critiques is that it is not only gay men who are constituted as deserving victims when violent men invoke a homophobic defence. It seems to have escaped all HAD commentators that lesbian women are also killed by men who subsequently rely on homophobia to mitigate their sentences. Whether or not these are provocation cases, they provide further evidence of laws complicity in the homophobic construction of sexed subjects. Only this time, that complicity takes the form of reinforcing the view of a defendant in a recent Queensland stalking case that: the only good lesbian is a dead lesbian.[130]
Reclaiming some of these unheralded lesbian cases helps to strengthen the case against the provocation defence. In the 1987 South Australian case of Lovec,[131] a man was convicted of the murder of his six year old son, but not held to account for the killing of his former wife and her lesbian partner. Not unnaturally, as the judge put it, this homosexual relationship caused the man considerable concern, but he did not take action until his sense of mixed outrage and love for his son drove him to protect him from the immoral behaviour by killing him.[132] The issue before the court was the correct test for setting a non-parole period. Were the additional deaths to be regarded as aggravating circumstances? The judges dilemma was not facilitated by the Crowns concessions that the deaths of the two women were to be recognised as manslaughters only and that they should not be taken into account as aggravating circumstances. The judge, to his credit, regarded these concessions as extremely generous and accepted them with severe reservations, yet he still found the murder of the son to be at the lower end and probably the lowest end of the scale.[133] However, the two additional deaths (and the wounding of a man) complicated the issue in that he felt they should substantially counterbalance any mitigating factors. The judges predicament was not brought about by the killing of two women so much as the evidence of the applicants premeditation his taking a revolver to the caravan. In such circumstances, the judge felt beholden to ensure that the punitive and deterrent purposes of punishment be seen to be done.[134]
While the judge in the Lovec case felt severely compromised by the Crowns concessions, he remained committed to sentencing principles of punishment and deterrence, notwithstanding the fact that the victims were lesbians. Even so, the deaths of two lesbian women still went unprosecuted, and did not count as aggravating circumstances in the determination of a non-parole period for their killer. What hope then can there be for those cases where men kill their ex-wives or de facto women partners and then plead the provocation of their lesbian relationship? Not much. In the 1985 South Australian case of Radford,[135] a man successfully appealed against his conviction for the murder of his ex-wifes lesbian lover. The trial judge had refused to leave the issues of provocation and involuntary action by reason of non-insane automatism to the jury. According to the most favourable version of the facts open to the jury that based on the accuseds unsworn statement the appellant had gone to the house emotionally committed to a final attempt to salvage his marriage and his happiness and having failed in that attempt, was confronted by the woman upon whose influence and conduct he blamed the destruction of his marriage and of all that made his life worthwhile. As well, he was subjected by her to:
physical threat with a cricket bat, to screaming and to an infuriating taunt which asserted the deceaseds possession of the friendship of the wife to the exclusion of the appellant.[136]
In these circumstances, according to the majority judgment, it was open to the jury to find that a man would be provoked to kill.[137]
To take one more example: in McGhee[138] a man was convicted of the attempted murder of his former partner and the wounding of her lesbian partner. McGhee had gone to their house, pointed a rifle at his former partner Yvonne De Vries in the drive way, then went into the house, shot her lesbian lover and then searched the house for De Vries, saying repeatedly: She has got to die.[139] He appealed against the attempted murder conviction and the question before the court was whether provocation was available as a defence. The appeal was dismissed, but Zeeman Js dissenting view of the sufficiency of the provocation bears repeating:
Even though the appellant had for some days been aware of the lesbian relationship ... there was evidence upon the basis of which the jury could have found that the appellant came upon them in circumstances where they were kissing one another and thereby openly flaunting their sexual relationship. It would be a reasonable inference that the appellant might well have found that grossly insulting, Ms de Vries having only recently left him so that she might enter into that relationship ... Such an insult was capable of constituting provocation.[140]
If kissing in your own home (openly flaunting your sexual relationship) can constitute evidence of provocation such that a male trespasser who sees you can kill you and be convicted of mere manslaughter, can any non-homophobic and non-misogynist commentator still want to embrace the culturally-loaded provocation defence? The second feminist suggestion I would make is that HAD debates in the United States and Australia are not informed by sophisticated feminist theoretical work on sex/gender questions.[141] Indeed, aside from Tomsen, very few HAD critics refer to the feminist literature and, as we have seen, even Tomsen held back from exploring the full implications of the parallel between the group disadvantage to women which follows from mens successful provocation pleas in domestic homicides with the group disadvantage to homosexual men in HAD cases.[142] My point is that this neglect of the feminist literature deprives HAD critics of some powerful arguments against the provocation defence a point which returns us to the Mison/Dressler debate.
As we have seen, Dressler is an advocate of the provocation defence. Yet interestingly, he concedes that the strongest basis for challenging the defence may be the predominantly male-orientated assumption that there is a certain inevitability to the leap from provocation to anger to loss-of-control violence. Accordingly, Dressler advises critics to attack the provocation defence from a feminist, not a sexual orientation, perspective.[143] What is fascinating about Dresslers argument in favour of the provocation defence is the bizarre twist in which feminist arguments against the defence are deployed against Mison, but not against the provocation doctrine. Thus for example, Dressler insists that the gender-neutrality of the reasonable person disguises an important fact the provocation defence is a male-orientated doctrine in that men are its predominant beneficiaries. Even in a context where men are the primary beneficiaries of all criminal defences, it has to be said that if ever the criminal law follows boys rules, it does here.[144] Indeed,
One glance at the common law categories of adequate provocation shows that the defence has served a male interest, by mitigating the predominantly male reaction of retaliating for affronts and other injustices.[145]
As Dressler is aware, such self-evidences about the defence lead logically to a call for its abolition. After all, the defence provides a disincentive for men to learn self-control. So, in seeking the removal of NHAs from the list of provocations justifying a jury instruction on manslaughter, but in not calling for the abolition of the provocation defence a defence which at its core assumes that men will be men Mison gives away a lot.[146] Admittedly, Mison does not make the most convincing case against a homosexual advance being accepted as sufficient provocation at law. His argument is flawed and even contradictory,[147] and it does not advance his case to claim that the plight of the homosexual in American society is analogous to that of other minorities, including women.[148] The situation of disadvantaged groups is not analogous and besides, women are sometimes lesbian.[149] There is also no basis for saying that unreasonable jury prejudice and bias is especially great in a HAD case.[150] By what criterion does Mison distinguish juror prejudice against heterosexual women who provoke their own demise from juror prejudice against homosexual men who do the same, let alone against the forgotten category of lesbian women? Certainly, it is deplorable that a North American judge could declare in a HAD case where a jury returned a manslaughter verdict that the victim contributed in large part to his own death by his reprehensible conduct.[151] But what does Mison suppose has been the message of manslaughter verdicts in countless adultery-based provocation pleas? The barest glance at these cases indicates that homosexual men are not by any means the first group of victims to provoke their own demise by their court-defined reprehensible conduct.
Yet if Mison gives away a lot, Dressler gives away more. He gives away his entire feminist argument against the provocation defence. Despite the fact that male violence is nearly always inexcusable, all killings motivated by sexual advances, homosexual and heterosexual alike, should be treated as second-degree murder.[152] Why? Because such killings are the result of an understandable and excusable loss of self-control arising from anger.[153] In an unexplained shift, provocations reasonable person, who was earlier exposed as predominantly a male person, is suddenly transmogrified back into an ungendered human person:
Common experience teaches that, at some point, anger becomes so intense that people find it extremely difficult to control themselves and respond constructively, rather than violently, to the anger-producing stimulus.[154]
To prove his point about common experience, Dressler provides a hypothetical situation in which a woman tells a man she is not ready for a committed relationship but she continues to see him and then one day, the man goes to her apartment and finds her in bed with another man. Now while he is perhaps not justified in becoming angry, few people would disagree that M may be excused for being disturbed by the sighting. After all, an ordinary person would be likely to become overwrought in such circumstances, and so if M kills while in this state, the homicide may be partially excusable.[155]
How could Dressler come up with such a profoundly sexed hypothetical, one which flies in the face of his own account of the provocation defences gendered subject? Could he really imagine that the fact situation could be turned around so that the woman goes to the house and, overwrought, kills the man? How has he so quickly forgotten that the overwrought trespasser in this scenario is always already male? The slick answer is that he is so caught up in defending his provocation-asexcuse position in the tedious masculinist debate about whether provocation is a justification or an excuse that he has forgotten his feminist lessons.[156] But a deeper analysis suggests that he, like other masculinist commentators and judges, simply cannot think gender-neutral provocation. Even when they are apprised of feminist critiques, masculinist commentators remain saturated in an impenetrable web of presumptions which become, in effect, a common lived experience for them. That experience does not permit space for imagining what it might be like for a woman to be whistled at by a man as she walks down the street, let alone for entertaining the possibility that a reasonable jury might partially excuse her for killing him.[157] Simply, men kill women who refuse or slight them and they whistle at other women walking down the street. And if men kill in response to an unwanted sexual advance, and women do not, the difference may be that he is a he and she is a she.[158] That's the way it is and always will be, apparently. Can such a simplistic reinscription of what men do as an unchangeable fact of life stand as an explanation of deeply sexed killings? The answer is yes, as long as profoundly sexed relations are treated as self-evident and sexed excuses are never challenged. How quickly Dressler has forgotten, if indeed he ever really understood, his feminist lessons about boys rules, male-orientated assumptions and, most crucially, about the fatally flawed, hopelessly gendered men-will-be-men doctrine of provocation. As adverted to above, Dresslers argument on behalf of the provocation defence would matter less if it were not the one most heavily relied on by the New South Wales Attorney Generals Working Party.[159] That the Working Party could find nothing problematic in Dresslers profoundly sexed argument, one which takes for granted mens routine anger and womens habitual provocations, underlines my point that ignorance of feminist work in the field has impoverished both the HAD and the provocation debate in Australia. The task, and indeed the whole point of this article, is to work out how to enlighten the masculinist commentators who still dominates discussions of exculpatory defences. How, in short, can those discussions be effectively penetrated by critical understanding of sex/gender questions?
The kind of deep analysis which is required to break down masculinist resistance to abolitionist arguments can be found in Jeremy Horders detailed study of the early modern law of provocation a study he uses to ground his argument for the abolition of the defence. Horder traces provocations long history right back to Aristotle in order to expose the legal and theoretical wrong turnings which led to a taken-for-granted moral link between anger and retribution. Horder deconstructs this link from an orthodox ethical point of view and also from a feminist perspective.[160] While one might want to refuse this distinction between orthodox ethical perspectives and, presumably, non-orthodox ethical feminist ones, Horders history is a gripping one which provides a very convincing case against the validity of the provocation defence in its modern guise. It tells the story of the transformation of anger as outrage which, he argues, becomes the man of honour to anger as loss of self-control, which does not. Those like Dressler who seek support and solace in provocation laws assumed embeddedness in Anglo-American law,[161] have the carpet pulled from under them as Horder peels back the layers of historical rationales for the defence. Provocations reasonable man, one prone to violent losses of temper, emerges as a chameleon, a fiction incapable of carrying the heavy weight of the modern law of provocations expectations. Worse, he is exposed as having no originating status; he merely came into being to accommodate the self-justifying anger of men.
Horders analysis takes us back into history before sweeping us forward and well beyond the subjectivist-objectivist debate which preoccupies non-feminist legal scholars today.[162] Fittingly, this history ends with the evidence amassed by feminist scholars that the provocation defence operates as a profoundly sexed excuse for men who kill their women.[163] Horder surmises that even Aristotle would not have approved of such a development. Aristotle may have associated anger with the desire for retaliatory suffering, but for him acting in anger was an aspect of moral virtue.[164] At any rate, even though the desire for retaliatory suffering has moral value, this does not ground a right to inflict it personally. That right belongs to the state. Yet as we have seen in HAD and intimate homicide provocation cases, the state, or at least its law courts, labours under a debilitating confusion. As Horder explains:
The association between moral virtue and action in anger expressed through a desire for retaliatory suffering has stemmed from an unfortunate confusion of what is good and what is bad about our cultural and moral understanding of anger.[165]
Horders conclusion, and mine, is that it is best we try to fix this confusion, or at least try to disenable it, by abolishing the vehicle which makes it so possible the provocation defence.[166] It appears however, that such a conclusion is falling on deaf ears. Even when commentators are apprised of Horders work, they overlook the fact that his booklength history of the provocation defence is an extended argument for its abolition.[167] So ingrained is the habit of excusing mens violent outbursts that even a sustained, scholarly history such as Horders, one which annihilates any pretensions of the modern law of provocation to be historically-mandated, fails to pierce the masculinist legal mind.
I have argued that HAD defence and, by extension, the provocation defence should be abolished. Is that argument too ferocious? Does it displace room for optimism that a more minimalist approach, such as that of the New South Wales Attorney Generals Department Working Party, might work? Might a judicial instruction to a jury that a homosexual advance, if they find one, is not treated by the law as an act of provocation any differently than if the deceased had made a comparable sexual advance upon a woman[168] ensure justice for gay male victims (or for women victims, for that matter)? Would any juror believe that? I don't think so. Certainly, it is heartening to note that in Green,[169] the most recent Australian decision in a HAD case, the appeal court rejected an appeal based on two main submissions: first, that the trial judge erred in law in not leaving evidence of provocation to the jury evidence of the appellants special sensitivity to sexual interference and evidence of his family background going to that sensitivity; and second, that he erred in law in his directions as to the meaning of the ordinary person in the position of the appellant.[170]
However, the dissenting judgment in the case confirms my abolitionist view that evidence of provocation should never be left for a judges consideration, let alone for a jurys. According to Smart J, the deceaseds actions, as so narrated by the accused, were revolting and it was unreal to suggest that in such a situation the appellant should have got up and walked away. He was being grabbed and the deceased was making very persistent and determined sexual advances. And, if all this was not bad enough, there were further factors, such as the deceaseds betrayal of trust and friendship and his abuse of his hospitality:[171]
The provocation was of a very grave kind. It must have been a terrifying experience for the appellant when the deceased persisted. The grabbing and the persistence are critical.
And tellingly,
Some ordinary men would feel great revulsion at the homosexual advances being persisted with in the circumstances and could be induced to so far lose their self control as to inflict grievous bodily harm. They would regard it as a serious and gross violation of their body and their person.[172]
Thus is the ordinary man judicially inscribed as a violent homophobe.
The dissenting judgment in Green also confirms my view that the New South Wales Attorney-Generals Department Working Partys proposed antihomophobic judicial direction does not have much hope of success if homophobic attitudes are shared by members of the bench. Surely the best hope for minimising such public homophobic pronouncements is to abolish the provocation defence. I could rest my case with the dissenting appeal judgment in Green because it provides the clearest possible illustration of how the provocation defence enables a court to make homophobic pronouncements on the law of provocation. But just in case the possibility of homophobic verdicts or even homophobic dissenting judgments is not enough to clinch the case, I will conclude my case against the provocation defence with the strongest possible case available in Anglo-Australian law the provoked killing of a white heterosexual man by another white heterosexual man.
In Stingel,[173] such a defendant lost his temper, killed a man and was properly convicted of murder, his provocation defence having failed to meet the standard of self-control expected of the ordinary person. In Masciantonio v R,[174] the most recent High Court provocation appeal case, the defendant was also properly convicted of murder. The facts of the case are that he lost his temper and stabbed his son-in-law to death. Does it really matter why? Does it matter that on the account most favourable to the accused, the victim was not a particularly appealing character? The evidence was that the victim made the life of his wife, the appellants daughter, miserable. He demanded money from her, stole her property and then left her. In the view of the High Court majority, the trial judge erred in withdrawing provocation in relation to the stabbing which took place it should have been left to the jury to ascertain whether the appellant was provoked at law at all the relevant times of the stabbing, including the second stage of the attack, when he continued to stab the victim after he fell out of the car onto the ground while onlookers tried to intervene. With respect, I disagree, and not simply because the evidence of provocation was not sufficient to be put before a jury. I disagree and I do so, ultimately, for a very simple reason: a person who inflicts such brutal violence on another person, in circumstances which do not found a defence of selfdefence or duress, deserves to be convicted of murder. No matter what his sexed status is; no matter what the sexed status of his victim. This concludes my case against the provocation defence, courtesy of HAD. I look forward to taking on provocations most ardent Australian supporters in my next foray into the field of exculpatory defences.
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URL: http://www.austlii.edu.au/au/journals/SydLawRw/1997/19.html