‘Yeah, I killed him, but he did worse to me … He tried to root me.’ Malcolm Green, upon turning himself into Mudgee police station for killing his friend Donald Gillies on 20 May 1993.

‘[W]hen defendants who kill in response to homosexual advances are not convicted of murder, courts and juries reinforce the notion that homosexuality is culpable behaviour and that gay men do not deserve the respect and protection of the criminal justice system.’ Mison R ‘Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation’ 80 Cal L Rev 133, 1992, p. 174.

Jason Pearce and Richard Meerdink had been drinking cask wine all afternoon before deciding to go to the Maryborough St Mary’s church so Pearce could smoke a bong. On their way up the street, Wayne Ruks joined them. Ruks was much drunker than Meerdink and Pearce – when he died a few hours later, his blood alcohol level was 0.338.

CCTV footage shows that the party entered the church grounds in good spirits. They sat down on a bench and Pearce started smoking. Meerdink refrained, as taking marijuana would have broken the conditions of his parole.

What happened next formed the basis of the trial.

Pearce claims that Ruks grabbed his crotch as part of a sexual advance. But camera footage does not show this, and the trial judge explicitly dismissed the claim. The judge did not, however, dismiss the claim that Ruks had made verbal overtures to Pearce, noting that Ruks had probably ‘provoked’ the accused by making some sort of sexual suggestion.

Over a period of several minutes, Pearce and Meerdink bashed the much drunker Ruks until he bled internally, taking turns kicking him in the abdomen and torso. Pearce was wearing steel-capped boots. Eventually, Pearce and Meerdink left Ruks lying in the church grounds. He died several hours later.

In 2009, Pearce and Meerdink were found not guilty of murder but guilty of manslaughter on the basis of what is commonly referred to as the ‘homosexual advance defence’. Pearce claimed that he was ‘fucked with as a kid’ and thus had reacted violently to Ruks’ advances. Meerdink claimed that he was just helping a mate out. The defence also claimed that the pair had intended neither to kill nor cause serious injury to Ruks (a requirement for a murder conviction).

The jury agreed.

Law and the privileging of the white, heterosexual norm

At the heart of this case is a familiar narrative of masculinity under attack. That an unwanted gay sexual advance can be considered sufficient provocation for a brutal and sustained attack is a disturbing example of entrenched social biases favouring straight men. Indeed, the successful use of the provocation defence here illustrates the institutionalised privileging of what is considered the heterosexual ‘norm’. It is, of course, merely one example of such ingrained social privileging. One need not look hard to identify further instances: the arguments against gay marriage, for instance, and the anger directed towards the teenage girl at the centre of the recent AFL photo scandal both highlight deep-seated male anxieties.

While provocation has now been abolished or amended in most Australian jurisdictions, a discussion of the defence provides important insights into the ways in which white, heterosexual males have been historically privileged by the legal system. Provocation implicitly condones both male aggression towards women and homophobic violence and, as former Victorian attorney-general Rob Hulls noted in 2005, ‘has no place in a modern, civilised society’. Yet, as the Pearce and Meerdink case illustrates, it is still applied, and by extension considered acceptable, in some Australian states.

Broadly, the partial defence of provocation provides that, where a defendant’s actions would normally amount to murder, the charge will be reduced to manslaughter if the death was brought about under circumstances that would cause a ‘reasonable person’ to lose self-control and to act in the way in which the accused did. The defence has been successfully invoked in instances where the killing resulted from a discovery of adultery, unwanted homosexual advances and, in some extreme cases, insulting words or gestures. Provocation differs from self-defence in that it does not require proof that the accused believed themselves to be in danger: merely that the victim did something sufficiently reprehensible that a reasonable person would have behaved as the accused did in the heat of their anger.

Tasmania abolished the partial defence of provocation in 2003. Victoria followed in 2005, in the wake of the outrage over the Ramage case (see below) and the subsequent release of the Victorian Law Reform Commission’s 2004 report on defences to homicide. In 2008, Western Australia also abolished provocation in an overhaul of its homicide laws. While the Northern Territory, ACT and South Australia still have provocation on the books, amendments have been passed that prevent the defence being invoked in the context of nonviolent sexual advances. Effectively, the ‘homosexual advance defence’ can now only be used in New South Wales and Queensland.

A 2008 review of provocation by the Queensland Law Reform Commission actually recommended retaining the partial defence due to the state’s mandatory sentencing regulations. Whereas in most states judges may impose a sentence based on the circumstances of an individual crime, in Queensland, South Australia and the Northern Territory a murder conviction carries mandatory life sentencing. For that reason, the commission recommended against abolishing the defence in order to ensure that mitigating circumstances of provocation can continue to be considered in relation to sentencing. The commission did, however, raise the possibility of excluding a ‘nonviolent sexual advance’, as has been adopted in some other jurisdictions, from a provocation defence – but this has not been legislated. Similarly, a decade earlier, the final report of the New South Wales review also suggested excluding nonviolent sexual advances. Again, though, the recommendation has not been implemented.

Thus, in at least two of the seven jurisdictions, it is still possible to take someone’s life – often through extreme violence – and avoid prosecution for murder.

Male anxieties and the homosexual advance defence

Citing an unwanted gay advance as an act of provocation has become known as the ‘homosexual advance defence’ (HAD) or, more colloquially, the ‘gay panic defence’. Technically, HAD is different from ‘gay panic’, which was originally known as ‘homosexual panic’, a psychiatric term coined in 1920 to describe the self-hatred a latent homosexual feels when confronted with the homosexuality to which he is morally opposed, a self-hatred that causes depression and suicidal thoughts. It has been successfully used by lawyers, especially in the United States, to claim diminished responsibility on the part of the accused, a kind of temporary insanity brought about by being sexually approached by a gay man. The HAD, by contrast, does not rely on psychiatry so much as a provoking incident involving common, garden-variety heterosexual male disgust at gay sex. In Australia, it is primarily the latter tactic that has been used to defend instances of homophobia-related violence: the prevalent perception that homosexuality is so abhorrent that an unwanted ‘homosexual advance’ (as it is known in the legal profession’s 1950s phraseology) constitutes an act of provocation, thus allowing the sympathetic jury to commute the sentence of a straight man to manslaughter.

Provocation differs from other defences in that it is intrinsically linked with dominant notions of masculinity. The innately gendered nature of the defence is evident in its reliance on the concept of the ‘reasonable person’, which in itself is always the white, heterosexual man. This reasonable person test, which is central to all provocation defences, is deeply problematic, with jurors consistently more likely to show sympathy towards someone with whom they identify. In the United States, it is well documented that juries are much more likely to find a white man not guilty than a black or Hispanic man. This ‘reasonable person’ bias also holds for women who face trial for homicide, with juries less likely to agree that a female defendant was provoked.

Provocation represents a clear example of the way the law privileges white heterosexual men above all others, allowing perpetrators to evade murder charges in contexts that reinforce their dominance: that is, men killing their female partners for cheating on them or leaving them or belittling their sexual prowess; white men killing men of colour after mistakenly assuming them to be dangerous; and, of course, straight men killing men who hit on them.

The defence was conceived in the 1600s in a context in which men fought duels to preserve their honour, and the mandatory sentence for murder was death. The defence could thus be used to allow a man to escape the death penalty in situations where he felt his honour had been sullied, and it is this concept of honour that still lies at the heart of provocation defences. They rely on the construction of the (male) citizen’s body as impermeable and active, vis à vis bodies that are defined either by their orifices (women and gays) or by their unreasonableness (in the case of non-whites). A straight man sexually approached by another man risks becoming the one who is penetrated, losing his privileged position as a sovereign body and thus being a non-man. The defence counsel in the 1992 Victorian case of R v. Murley, where Robert Murley stabbed Joe Godfrey seventeen times with a bread knife, hit him with a chair and slit his throat, put it like this: ‘[This attack] was not the usual case where he’s going to be killed; it’s an attack where he’s going to be sodomised, which is almost as grave.’

As has been noted, this concept of honour – and, more specifically, defending one’s honour – is intrinsically linked to dominant notions of masculinity. Not only does it privilege heterosexuality, it also involves an inherent gender bias favouring men. As even my Liberal-voting, beef-farming father pointed out, if every woman who was sexually harassed by a man killed him and then claimed provocation, half the men in Australia would be dead. Furthermore, where women who are sexually harassed or assaulted by men tend to find themselves the object of scrutiny (was she leading him on? what was she wearing?), men who kill other men in reaction to sexual advances are rarely subjected to similar questioning, not even in cases where the accused stole goods from the victim after the killing. In a world of predatory gays, slutty women and mad feminists, it is always the poor straight man who is the real victim.

This sex/violence-related bias towards strai-ght men becomes even more obvious when we consider the case of Heather Osland. Osland was convicted of murdering her husband despite pleading provocation in relation to repeated rapes and thirteen-and-a-half years of constant abuse, assaults and death threats against her and her children. Her son David was acquitted of all charges and released, even though he allegedly struck the fatal blow. In 2001, Osland’s appeal was rejected. The court found provocation and self-defence irrelevant to her case on the basis that the killing was premeditated – Osland had earlier dug the hole in which to bury her husband.

The stipulation that the reaction must be immediate for a successful provocation defence presumes that certain responses are less problematic than others: in particular, the reactions associated with someone physically powerful, someone already most likely to be in control of the situation. In provocation defences, the straight male defendant typically argues that something the victim did provoked him into losing control and committing extreme, deliberate violence. Pearce, for instance, claimed provocation because he was ‘fucked with as a kid’. In his trial, Justice Peter Applegarth instructed the jury to consider whether a reasonable person, with an acute sensitivity about such sexual conduct resulting from childhood experiences, would react in the same manner as Pearce.

In some jurisdictions, it is also possible to argue that something the victim said constituted provocation, though the ‘mere words’ rule is often contentious, not to mention fluid and manipulable. For instance, in the Julie Ramage case the defence argued that Ramage taunted her husband by telling him that sex with him repulsed her and that she had found a new man, with whom she had been having ‘sleepovers’. In response, it was argued, James Ramage lost control of himself, punched his wife and then strangled her to death.

The idea of a loss of control comes up time and again in such cases, including that of Pearce and Meerdink. The problematic nature of this concept is immediately evident in the anachronistic phrasing of the Queensland Criminal Code: ‘kills … in the heat of passion … before there is time for the person’s passion to cool’. Yet women who kill in response to abuse cannot, in most cases, take on their tormentor on the spur of the moment and so are more likely to use weapons or wait to overpower their partner (when the partner is asleep, for instance). Thus, the insistence that control must be lost in order to argue provocation presents a highly gendered notion of what is and is not a reasonable response to a supposedly provocative situation. Women who kill in response to long-term violence generally must plan their actions in advance to be successful, and such homicides are easily conflated with cold-blooded murder; men who kill someone weaker in the heat of the moment, however, are seen as at least partly justified.

This issue was recognised in Victoria which introduced in 2005, as part of a raft of amendments to laws related to homicide, a ‘battered wife defence’. These amendments removed provocation in favour of ‘defensive homicide’. Under the new regime, it is highly likely that Heather Osland would have succeeded in having her charge commuted to defensive homicide. Yet, according to the September 2010 review of the offence of defensive homicide, the thirteen people so far convicted were all males convicted of crimes against male victims, eleven of them in ‘one-off violent confrontations’. The Victorian Law Reform Commission had recommended the introduction of defensive homicide as a ‘safety net’ for women who kill in response to family violence, but the review notes that ‘to date, it is too early to tell if this “safety net” is necessary because no female defendants have been to trial under the new laws in relation to a domestic homicide’.

Nonetheless, whatever the problems with Victoria’s homicide laws, since provocation was abolished, there have been no cases as outrageous as those of Pearce and Meerdink, or James Ramage.

By contrast, Queensland in particular is in dire need of changes to its homicide laws. Of course, anyone facing sexual assault has a right to defend themselves, but in cases of self-defence the law requires that one must act with ‘reasonable’ force, while attempting, as far as possible, to escape the situation. In a large number of HAD cases, the defendant – or defendants – is physically stronger than the victim and continues to beat or stab the victim after he has already been incapacitated. Such was the evidence in the separate cases of Robert Murley and Malcolm Green, with Murley claiming, ‘Well we started struggling because he caught up to me again, because I stopped, and I thought, “well, I’ve just stabbed a man a couple of times in the back and I better stop, and say, ‘Listen, are you alright? I am not like that. Let’s sit down,’” but he come [sic] towards me again.’

It is hard to imagine a person sexually pursuing someone else after being stabbed multiple times – apart from the fear and the pain, repeated stabbing would likely immobilise the victim. But the quote highlights the homophobic stereotypes employed in such defences. With the victim not alive to tell his side of the story, the defence is able to play entirely into the jury’s fears about a masculinity compromised by homosexual advances.

HAD is not being employed anywhere near as much as during its peak in the 1990s, but the recent Ruks case demonstrates that, in Queensland and New South Wales, reform is still needed, and its eradication will be an important step towards addressing the institutionalised privileging of the heterosexual norm. Furthermore, such changes would not only send a message that homophobic violence is not acceptable under any circumstances but would also signal that it is never excusable for men to use violence in response to challenges to their masculinity. Provocation is, of course, only one example – albeit one of the most outrageous – of entrenched biases within the law and, by extension, society. Encouraging further discussion of these issues is vital to ensuring that all are afforded equal protection under the law.