Homosexual Advance Defence

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WHAT IS THE "HOMOSEXUAL ADVANCE DEFENCE? (HAD).

DESCRIPTION AND DEFINITION

· HAD defence is not itself a legally recognised defence.

· Is pleaded when an accused person alleges that they acted either in self-defence or under provocation in response to a homosexual advance.Order Custom Homosexual Advance Defence paper

· Australia in the 10's, a number of men standing accused of murder, pleaded that they were provoked when their victims made a homosexual advance towards them.

· In some of these cases, such a defence has resulted in a complete acquittal (R V McKinnon 1; R v Bonner) .

· In other cases the defendants have been found guilty of manslaughter instead of murder and received reduced sentences (R V Green, 15; R V Turner, 14).

· Also called the "Homosexual Panic Defence" (HPD) which originated in the United States .

· Defence was used to support a plea of either insanity or diminished capacity.

· By reason of mental defect.

· The pathological dimension of the defendant's "acute homosexual panic".

· .This was triggered by the defendants repressed or latent homosexuality and cause a violent reaction.

HOMOSEXUAL ADVANCE DEFENCE IN AUSTRALIA.

· In the 10's there was an increase in the use of the HAD in Australia, particularly in NSW.

· NSW Attorney General commissioned a Working party to investigate HAD and its effects.

· Concerned about the treatment of homosexuals in society

· About the possible erosion of equality before the law,

Are Homosexual Men at Threat of Being Murdered?

Commission's report (LRC) (18)

· NSW Police service Ù that homosexual men were four times more likely than heterosexual men to suffer a physical assault in a 1 month period.

· Australian Institute of Criminology (AIC) Ù 7 male victims of gay-hate related homicide over a 10 year period (Mouzos & Thompsom 000)

· 8 murder cases in which HAD was pleaded, there were acquittals, 5 convictions of manslaughter (LRC, 18).

· In only 1 case was the accused found guilty of murder (LRC, 18).

What Are These Statistics Telling Us?

· Indicative of a general trend towards homophobic violence in Australia.

· The criminal justice system allowing HAD as a defence, was doing little to condemn this trend (Potter 001).

· The case of R V Green (15), an appeal to the high court for an overturn of murder to manslaughter conviction was successful on the grounds of provocation.

· The decision in Green condoned HAD, and secured a place for HAD in Australian Criminal Law.

· Between 1-18 there were 1 cases involving a HAD Defence.

· In most of these cases the accused presented his defence by way of a dock statement.

· A dock statement cannot be tested by cross examination. In NSW dock statements were abolished in 14.

HAD DEFENCE AND TRIAL FOR MURDER

THE LAW OF SELF - DEFENCE IN NSW

· The law of self - defence acknowledges that a person has a basic right to repel an unlawful attack.

· A finding that a person acted in lawful self - defence entitles him or her to be acquitted of the offence charged.

Has Two Components

1. The first is that an honest belief be held on the part of the accused.

. The second is that the belief be based upon reasonable grounds.

PROVOCATION AND SELF CONTROL

THE LAW OF PROVOCATION IN NSW

Section. () of the Crimes Act (NSW).

· The crime of murder may be reduced to manslaughter if the killing occurred in circumstances of provocation.

· There are two essential elements of provocation in a trial for murder that are common to all jurisdictions.

· Firstly, the act or insult of the deceased must be sufficient to cause a loss of self-control on the part of the accused.

· Secondly, the act or omission that caused the death of the victim must stem from that loss of self control.

· The level of self control required by the law is considered objective.

· The accused must convince the court that an ordinary person could have also lost self control.

HOMOSEXUAL ADVANCE IN THE CONTEXT

OF SELF DEFENCE.

· The primary concern about the operation of the defence of self defence centres upon the actual nature of the attack or perceived threat.

· The main criticism centres upon the failure to differentiate between a sexual advance and a sexual attack.

· In this context, the HAD risks treating a homosexual advance as a form of sexual aggression. Not because it is aggressive but because it is homosexual.

· In each of the NSW HAD cases the accused alleged that a struggle ensued between the accused and victim.

· On the version of the events given by the accused the sexual advance was a precursor to a violent struggle in which the victim was the primary aggressor.

· In HAD cases the deceased is often the only person present during the killing and so no contradictory version of events are available.

· The operation of self-defence in HAD cases can be partly attributed to community attitudes toward homosexuality.

· Particularly to notions concerning the protection of 'male honour' and 'masculinity' (Tomsen 14).

· NSW cases, the prosecution argued that the actions of the victim did not constitute such a threat to the accused as to call for the extreme response of killing, or inflicting injuries upon, the victim.

In The Following Cases The Jury Finds Not Guilty!

· R v McKinnon (NSW, SC, 1) McKinnon () had killed a homosexual man (46) by punching him and repeatedly ramming his head against a wall. While the victim lay unconscious, McKinnon also stole objects belonging to the victim including his car.

· The jury was directed in relation to both self defence and provocation.

· Despite evidence being admitted that McKinnon had discussed the killing with friends and told them that he had just "rolled a fag", he was acquitted, the jury having accepted, on the evidence presented in Mckinnon's unsworn statement, that he acted in self-defence.

The Advance

· McKinnon alleged that after entering the Victims bedroom to look at some marijuana, the Victim threw McKinnon onto the bed, pulled down his tracksuit pants and was on top of him.

· The prosecution argued that the Defendants actions in response to the victims actions were "over the Top" and that he could left the house rather than kill the victim.

· R V Bonner (NSW, SC, 15) Bonner (6) alleged in an unsworn statement that a casual acquaintance (6) had made a previous suggestion about sex to which Bonner replied with a comment that he was not homosexual. After drinking at a local hotel, Bonner invited the Victim back to his flat. He alleged that after asking the victim to leave the victim became angry, a struggle ensued and he stabbed the victim in the neck.

· The jury was directed by the trial judge in relation to both self defence and provocation.

The Advance

· Bonner alleged that after asking the Victim to leave due to the late hour, the victim became angry and started screaming at Bonner. A struggle ensued and the victim pushed the defendant up against the wall.

· The jury acquitted, having accepted, on the evidence presented in Bonners unsworn statement, that he acted in self-defence.

· The concern is that a jury may have equated a homosexual advance with a sexual attack. Making no distinction in their mind between an offensive, but nevertheless innocuous remark or action .

· This may stem from ill informed stereotypes of a homosexual men as predators/attackers (Pasquale, 00).

HOMOSEXUAL ADVANCE DEFENCE IN THE CONTEXT OF PROVOCATION

· The primary concern is whether a non-violent homosexual advance should constitute sufficient provocation to incite an ordinary person to lose self-control and kill.

· It is suggested that to allow a non-violent homosexual advance to amount to sufficient provocation reinforces the notion that fear, revulsion or hostility are valid reactions to homosexual conduct (Mison, 1, Tomsen, 14).

· A murderous reaction toward gay men should not be regarded as "ordinary" behaviour but as an "exceptional" characteristic of the accused (Mison, 1).

· When defendants who kill in response to homosexual advances are not convicted of murder, courts and juries reinforce the notion that homosexuality is culpable behaviour

· That gay men do not deserve the respect and protection of the criminal justice system (Mison 1, Howe 17).

In The Following Cases The Jury Finds Guilty of Manslaughter!!

· In R V Dunn (Wollongong, SC, 15) Dunn (1) killed the victim () by punching and kicking him and jumping on his head. Dunn also stole the victims keycard and cigarettes.

The Advance

· Dunn alleged that while cycling on a track he was confronted by the victim who said "I'm going to give it to you good". The Victim was dressed as a woman which made Dunn "feel sick". Dunn alleged that the victim had his penis in his hand and his "hands all over Dunn". After being kicked and punched repeatedly he stated that the victim jumped off the ground, spat in Dunn's face and said "is that all you've got".

· The jury was directed as to both self defence and provocation.

· Despite evidence being admitted that Dunn had returned to the scene of the crime, and had told others that he had "just bashed a rock spider" the jury accepted that he was sufficiently provoked and he was convicted of manslaughter.

· R V Turner (NSW, SC, 14) Turner (17) killed a homosexual man of (64) bashing his head with a door stopper (garden gnome) and stabbing him a number of times. Turner also stole the victims VCR and tried to sell it.

The Advance

· Turner alleged that While walking past the Victims home he was invited in for a drink. When he got up to leave after a 0 minutes the victim grabbed him on the bottom with both hands and "said something". Turner alleged that after pushing the victim away the victim punched him. A struggle followed and Turner bashed the victims head with the door stopper and then stabbed him.

· The prosecution argued that the alleged action of the victim (grabbing of the buttocks combined with

moaning) was not sufficient to ground self defence

· the jury accepted that he was sufficiently provoked and he was convicted of manslaughter.

THE TRIAL DISCOURSE IN THE COURT ROOM

THE VICTIM BECOMES THE SEXUAL PREDATOR AND THE ACCUSED BECOMES HIS PREY.

EVIDENCE ABOUT THE VICTIMS HOMOSEXUALITY

· Can inflame and bias juries as well as others involved in the conduct of a criminal trial.

· The victims are constructed as villains, recreations used as legal tactics aimed at reducing the implication of the accused acting with reason and intent in his actions against the victims (George, 17).

· The aim of reconstructing the victim is to convince a jury that the actions of the accused were in fact reactions against a dangerous individual.

For Example

· In the McKinnon trial, the victim was presented, by both the accused and defence and a closeted homosexual who prowled the streets looking for anonymous sex.

· In the Turner trial he was presented as 'a dirty old man' whose 'reputation' for an interest in 'sexual matters' was well known in the local community.

THE PHENOMENA OF THE SEXUAL ADVANCE

· In the courtroom the element of the "advance" is used to portray the supposedly aggressive and predatory nature of the victim.

· This advance is revealed in trial discourse as insatiable lusting and assault (Vaughan & Scott, 18)

Excerpts from transcripts display this vividly.

· R V Green (15) The victim despite being punched 5 times and having his head rammed against the wall, relentlessly pursued the defendant in an effort to satiate his apparently overpowering lust.

· Defendant stated "He still tried to grab me….he still tried to grope and talk to me".

· Similarly in R v McKinnon- The victim after being struck over the head with a wine bottle three times, and punched several times in the face, was described as persistent in his efforts to molest the defendant.

· Defence Counsel "What happened in the hallway between you and him?"

· Defendant "Well, we started struggling because he caught up to me again , because I stopped beating him…but he came towards me again".

PSYCHOLOGICAL TESTIMONY IN COURT

· 160's 170's in the U.S. "Homosexual Panic" was used in the insanity defence.

· Two defence psychiatrists testified

"At the time of the homicide, the defendant was suffering from a schizophrenic disorder or reaction, acute psychotic process or character neurosis….this emerges….as a violent emotional reaction to a homosexual situation stemming from a person's conscious. or subconscious. awareness of his own homosexual tendencies.

"The defendant was a highly delusional paranoid schizophrenic, who was a loner, with a basic distrust of people, a highly latent homosexual with strong feelings of inferiority…sever stress of any type could result in an acute schizophrenic reaction with accompanying amnesia

In Australia

· 14 Richard Leonard admitted killing Stephen Dempsey with a high powered cross bow, dismembering his body and storing it in his fridge for four months before disposing of the body at Pittwater. He claimed the deceased had approached him sexually at Deep Creek Reserve Narabeen.

· The jury took four and a half days to find Leonard guilty despite his guilty admission and the gruesome nature of the crime.

· Forensic Psychiatrist Dr. Bruce Westmore testified at the pre-sentence hearing that Leonard was a "psychopath" with a "severe disturbance in his sexuality". Subsequent interviews while incarcerated at Long Bay Gaol revealed that Leonard now identifies as homosexual".

· Dr Bruce Westmore explained why a young man of then 1 who suspected he was gay, would go to a known beat, and commit murder.

These included a number of factors;

· Alcohol and drug abuse, unemployment, & possibly homelessness.

"Often these young men are uncertain about their sexuality. If they go to beats, that is more sexually specific and the attacks are often more frenzied".

· Westmore believes that there is a relationship between a disturbed sexual identity and homosexual advance defence.

· However, homophobia in the general community, a culture of machismo and masculinity and the failure of society to deal with homosexuality as the driving force behind the problem.

In New Zealand

RV Campbell (17) a jury accepted expert witnesses testimony of memory in particular 'flashbacks' and 'post traumatic stress disorders as a defence of provocation to a charge of murder.

The young man was found guilty of manslaughter and given a five year sentence.

The facts pointed to a sequence of traumatic sexual abuse involving the accused as a victim at the age of seven. His apparent "compartmentalisation of memory", the "development of adverse side-effects" his "mask of self control" and the fatal consequences for another person 1 years later who resembled the original abuser in appearance and made and approach which "triggered the traumatic memory of the original terrifying abuse"

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