‘Gay Panic Defence’ Creates a Stir in Queensland

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Try to imagine this, you are taking a walk, maybe on the way home or to run an errand. During your walk you come across one or more men, obviously drunk, what do you do? If you are female you would probably turn around and find another route to take. But if you are male you’d probably carry on, maybe even give them some sort of acknowledgement on the way past. After all you’re male they’re male, shouldn’t be a problem, no reason for alarm bells to ring.

One young man, Wayne Ruks probably felt no reason for alarm when he initially walked past two drunken men in a churchyard. But we will never know, for Wayne, taking a walk was the last thing he ever did, as he was brutally bashed to death by the two drunken oafs. The reason given for the horrific killing of a young man was they [the killers] said he made unwanted homosexual advances toward them.

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Father Paul Kelly in his office

The horror doesn’t stop there. The killers then used this reason as a partial defence in Wayne’s murder trial and eviler still. It was accepted and the charges downgraded to manslaughter, one of the killers served four years of an eight year sentence and is now back in the community.

And the reason for accepting the defence, Wayne lived and died in Queensland where there is a law more suited to the dark ages than 2012 called, THE GAY PANIC DEFENCE. This barbaric law exists in Queensland and NSW and permits an ALLEGED or PERCIEVED, NON- VIOLENT homosexual advance of even the most minor gesture to be used as partial defence in a murder trial.

Basically if you live in these two states you can kill someone, saying I thought they were gay and coming onto me and hey presto you get off, because obviously if someone of a different sexuality to yourself looks at you, it panics you enough to beat them to death.

I spoke to Father Paul who is spearheading a campaign to end this irresponsible law after his churchyard was turned into a crime scene; “On July 4th 2008 I was shocked when I received a call from the police telling me that my parish church of St Marys Maryborough (QLD) was a crime scene.

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The church at Maryborough

Father Paul had had CCTV cameras installed at key locations in the church grounds in response to numerous acts of alcohol related violence after hours; it was this CCTV footage that captured the events on the night of Wayne’s death.

“It was clear from that footage that, contrary to the claim by one of the accused killers, there was NO physical contact between the victim and the assailants, and that there was no evidence of any sexual advance as stated. In fact, from the view of the CCTV footage, it looked to me that the only “provocation” that occurred was that the victim Wayne Ruks ran away from them, the footage as far I was concerned, showed the attack for the vicious unprovoked attack that it obviously was.”

In October 2011 gay panic was raised again in the murder trial of Stephen John Ward. Stephen was allegedly bashed 20-30 times by the assailant who then dumped his body in bushland. The final decision in this case turned on other matters but the reason for the bashing being alleged gay panic was raised.

“It would be quite unacceptable if a man bashed a woman to death and then argued that he bashed her because she allegedly “came on to him ” and he reacted badly to it, it would be howled down as intolerable. So too should a claim that some kind of sexual advance by a member of the same sex could provoke extreme violence. If a woman could use the excuse that she bashed a man to death because she reacted violently to his advances, there would be a lot of very scared men around. It is “ludicrous.”

Father Paul wrote to the Attorney General’s office in Queensland twice about this barbaric loophole in the law. The reply he received directed that some changes were being looked at and applied. But they did not want to close the loophole because the laws about provocation that govern it, might be able to be used by a battered spouse, who defends themselves violently after an initial touching that they know from experience to be the harbinger of violence.

“The cases I have followed are nothing like that; the battered spouse defence could be taken up in areas of self-defence and proportionality. I did not believe that this was a sufficient action to close this dangerous piece of law.”

Father Paul followed up his letters by having a meeting with the Attorney General concerning the laws on provocation and the gay panic defence.

“In that meeting I got the opportunity to emphatically say that the homosexual advance is a real defence at common law. It is available under the Queensland law even if not expressly stated on the face of the provocation legislation, and no reasonable opinion could deny that. It would be highly misleading to suggest it does not exist. They are also misleading if they keep suggesting that we are saying the homosexual advance defence is the only thing wrong with provocation. It is not.

There are other problems in the provocation defence in that it has been used against racial minorities and by violent men to try and excuse their bashing of women to death by suggesting some provocation, so there is a lot wrong with provocation in addition to the homosexual advance loophole.”

Although some changes have been made they are evidently not adequate, “It is obvious from the two cases in Maryborough that they could still raise this defence after those changes because in both cases there was an alleged touching sexual advance, so that would still be able to be raised under the present state of the act. Although the onus of proof has now been reversed, the issue would still be raised in front of a jury. This in itself could potentially infect the considerations in relation to distorted potential prejudices of a hypothetical future jury.

The argument by the government that neither of those two Maryborough cases has anything to do with homosexual advance is misleading. The REASON for the horrific bashing death in both cases was given as an unwanted homosexual advance (alleged anyway). That was the reason heard by the judges and juries that was not something expressly told to be disregarded, and even if it theoretically could be instructed to be disregarded, who knows what effect it could have if potentially explosive prejudices were in a potential jury.”

Father Paul says that his intention is not to criticize judges and juries on past cases but to focus on the policy terms and the future fixing of these things.

If you, like I on hearing of this truly archaic law want it changed you can visit and sign up at the address below and write to the AG and Premier of Queensland and express your concern. Father Paul says, “Please don’t let them fob you off with rubbish like “the gay panic defence doesn’t exist’ and “we’ve changed it” – it DOES exist and it is still available, the changes have not changed enough, not nearly enough.”

http://www.change.org/petitions/eliminate-the-gay-panic-defence-from-queensland-law-gaypanic

Wayne’s mother, another victim in this heinous crime as she lost a son in tragically appalling circumstances, was compelled to state categorically that Wayne was not homosexual and had been in a long term heterosexual relationship at the time of his death.

The common law defence of homosexual advance is very real and is illustrated by the infamous case of Malcolm Thomas Green v The Queen [1997] HCA 50.It is real and the dissenting judge in that case was the then Kirby J who ably highlighted what was very wrong with the use of this argument, but he was in the minority.

Fiona Hammond is a journalist who graduated from the John Morris journalism academy. Fiona lives on the south coast of NSW Australia and writes human interest stories and opinions, about gardening, sustainability, fishing, the environment and our planet.