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’til death do us part – the panic about gay rights

Married gay people will encourage others to be gay. Allowing same-sex marriage could increase gay public displays of affection. Gay people don’t deserve to be married.

Those three lines, those empty assertions, are some of what’s being aired out in the fight over legalising gay marriage. At this point in time marriage seems to have taken on the face of gay rights with major coverage in the media, significant discussion during the election and with international celebrities speaking out. Putting the high separation rate aside (one in three Australian marriages ends in divorce!) marriage can be a beautiful union of two people but, without trivialising the debate, there other significant aspects of the law that are anti-homosexual . These legal loopholes are not just discriminatory but also pose a grave threat to safety and justice for the gay community. 

Looking back over Australia’s legal history there has been an increasingly common defence in murder and other violent crime charges. The scenario: a heterosexual man is (reportedly) propositioned by a gay man; the heterosexual man believed he was under some sort of threat and used violence (sometimes lethal violence) as a defence from the gay man. This perceived threat on the part of the heterosexual man allows for greater leniency of charges and convictions. The defence in court is known as the Homosexual Advance Defence (HAD).

To give a clearer definition of HAD one should be aware of the Homosexual Panic Defence (HPD) which was first identified in the United States. HPD became a common defence when numerous returned soldiers engaged in violent behaviour towards gay men.  Lawyers defending the accused soldiers claimed the HPD was a legitimate defence as it was based on research conducted by the psychiatrist Edward J Kempf. Kempf’s research proposed that ‘a person with latent homosexual tendencies will have an excessive and uncontrollably violent response when confronted with a homosexual proposition’. This reaction is referred to as acute homosexual panic. The problem with using Kempf’s research as validation of the HPD (and later, HAD) is that the majority of his research subjects internalised their anger, fear and shame rather than acting violently.

In a HAD review by the NSW Attorney General’s office, it’s stated that

…the term ‘homosexual panic defence’ has negative and unjustified connotations, in that it could suggest that ‘panic’ is a legitimate response to homosexuality or a homosexual advance’.

The review also reveals

‘ …lesbians were at least six times more likely, and gay men four times more likely, than heterosexual women and men to suffer a physical assault in a 12 month period.’

In Australia there have been reduced charges from murder to manslaughter and two acquittals made using the HAD. One case where the accused was acquitted was the case of R v Murley. The victim in the case was 65 year old Joe Godfrey, who was nearly decapitated and brutally stabbed 17 times after allegedly making a pass at Murley. A reduced charge from such a murder would be shocking enough, but Joe Godfrey’s killer was acquitted – free to go! This judgement brought into serious question the homophobic nature of the public and, specifically, the jury who decided the verdict.

Gay marriage is one legal battle being fought to bring equality to all of Australia’s citizens. But, clearly, there is another battle ahead and the stakes are very, very high.

For more info on the HAD click here

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