[1] Michel Foucault, ‘Orders of Discourse’ (1971) 10 Social Science Information 7, 22.
[2] For a recent survey, see Stephen Tomsen, Hatred, Murder and Male Honour: Homosexual Killings in New South Wales (2002).
[3] For example, see Steve Tomsen, ‘Hatred, Murder and Male Honour: Gay Homicides and the “Homosexual Panic Defence” (1994) 6 Criminology Australia 2, who uses the term HPD to encompass what this paper refers to as the HAD. See also Anthony Bendall and Tim Leach, ‘Homosexual Panic Defence’ and Other Family Values (1995), 9. Interestingly, the Lesbian and Gay Legal Rights Service decided upon using the terminology ‘homophobic response defence’ in preference to the available alternatives. This is a compelling move, motivated in part by a desire to avoid the pathologising connotations of panic and also to relocate the focus of inquiry away from the (often conflated) acts and identity of the victim and towards the homicidal actions of the defendant. Although the main frame of reference adopted by this paper will be one based upon sexuality and its embodied construction, it is acknowledged that discourses of sexuality are always already structured by discourses of class, ethnicity, gender, race, and so forth. Accordingly, the terminology employed throughout this paper will be one of ‘homophobia-related violence’ (a term adopted from Gail Mason), in acknowledgement that homophobia alone does not deterministically structure the social field in the examples discussed infra. See Gail Mason, The Spectacle of Violence: Homophobia, Gender and Knowledge (2002), 6.
[4] According to Robert Bagnall, Patrick Gallagher, and Joni Goldstein, ‘Burdens on Gay Litigants and Bias in the Court System: Homosexual Panic, Child Custody, and Anonymous Parties’ (1984) 19 Harvard Civil Rights-Civil Liberties Law Review 497, 499, the first case in which the HPD was used was the 1967 Californian case of People v Rodriguez, 256 Cal. App. 2d 663, 64 Cal. Rptr. 253 (1967).
[5] See Edward J Kempf, Psychopathology (1920), 477 ff. For subsequent acceptance and consideration of Kempf’s condition, see Burton S Glick, ‘Homosexual Panic: Clinical and Theoretical Considerations’ (1959) 129 Journal of Nervous and Mental Disease 20; Robert J Campbell, Psychiatric Dictionary (6th ed, 1989), 328. For critical discussion, see Kara S Suffredini, ‘Pride and Prejudice: The Homosexual Panic Defense’ (2001) 21 Boston College Third World Law Journal 279, 288-92.
[6] Suffredini, above n 5, 288.
[7] Ibid 288-9.
[8] For a discussion of the use of the HPD in support of the separate legal defences of insanity and diminished responsibility, see Editors of the Harvard Law Review, ‘Developments in the Law – Sexual Orientation and the Law’ (1989) 102 Harvard Law Review 1508, 1543-6. As the Editors note, fewer than half of the United States state-based criminal jurisdictions accept the diminished responsibility defence. This is the case in New South Wales, where the defence of diminished responsibility provided for under s 23A of the Crimes Act 1900 (NSW) was replaced in 1997 with the defence of substantial impairment of mind. For a discussion of the statutory basis of, and the legislative reform process relating to, the new defence of substantial impairment of mind, see David Brown, David Farrier, Sandra Egger and Luke McNamara, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales (3rd ed, 2001), 652-5. To date, the literature on the HPD indicates that its use has been confined to American criminal jurisdictions. A review of Australian case law confirms this.
[9] Editors of the Harvard Law Review, above n 8, 1542.
[10] See Adrian Howe, ‘More Folk Provoke Their Own Demise (Homophobic Violence and Sexed Excuses – Rejoining the Provocation Law Debate, Courtesy of the Homosexual Advance Defence)’ (1997) 19 Sydney Law Review 336, 339.
[11] Suffredini, above n 5, 302.
[12] Gary David Comstock, ‘Dismantling the Homosexual Panic Defense’ (1992) 2 Law and Sexuality 81, 88.
[13] See Suffredini, above n 5, 292-302; Ibid 86-100.
[14] See Suffredini, above n 5, 303-4.
[15] See Ibid 305-9; Comstock, above n 12, 81.
[16] Suffredini, above n 5, 311.
[17] Ibid 292. Claims such as the one above, predicated as they are upon holding the law to its self-professed standards in order to emphasize its hypocrisy and its failures, are common amongst progressive political critiques of institutions. See Perry Anderson, ‘Renewals’ (2000) 1 New Left Review 5, 15. In the context of the HPD, however, Suffredini’s apparently genuine belief in either the bona fides of the psychological disorder or the humane intentions of the law in addressing it, seems ironically misplaced.
[18] It is not asserted that the work of Comstock and Suffredini, in bringing to light the inconsistencies between the psychiatric and legal discourses, is or was unimportant. Rather, it is argued that these critiques fall short of identifying the constitutive role performed by legal discourse and are consequently limited in their scope. This paper, critiquing the structural underpinnings of the HAD, employs a poststructuralist and feminist methodology informed by the writings of theorists such as Michel Foucault, Judith Butler, Elizabeth Grosz and Ngaire Naffine.
[19] Howe, above n 10, 340. Alternatively, it is possible to read the HPD (as per Eve Kosofsky Sedgwick), as a pathologisation of the hatred of gay men. She writes that ‘the “homosexual panic” defense rests on the falsely individualizing and pathologizing assumption that hatred of homosexuals is so private and so atypical a phenomenon in this culture as to be classifiable as an accountability-reducing illness’. See Eve Kosofsky Sedgwick, Epistemology of the Closet (1990), 19. At any rate, whether one regards the pathologisation of homophobia as politically preferable to the pathologisation of homosexuality (and gay activists have made tactical claims that homophobia is indeed tantamount to a disease), Kosofsky Sedgwick and Howe both interrogate the grounds upon which medical, psychiatric and psychological discourses construct dominant understandings of sexuality and elide the social with the biological.
[20] See, generally, Michel Foucault, The Will to Knowledge (The History of Sexuality: Volume One) (Robert Hurley trans, 1998 ed).
[21] See Ellen Herman, Psychiatry, Psychology, and Homosexuality (1995), 95-103, for a historical discussion of the events leading up to, and immediately preceding, the removal of homosexuality as a psychiatric condition by the American Psychiatric Association from its official handbook of diagnostic criteria, the Diagnostic and Statistical Manual of Mental Disorders (‘the DSM’). In terms of the interaction of medical and legal discourses, the DSM (currently in its fourth edition) continues to play a central role in civil and criminal litigation both within America and in overseas jurisdictions such as Australia. For an interesting counterpoint to the struggle of gay and lesbian activists to remove homosexuality from psychiatry’s control and surveillance, consider the experience of transgender people who have fought to have their ‘condition’ included in the DSM in order to secure institutional recognition as a prerequisite to desired sex reassignment (or, sex affirmation) surgery. See Susan Etta Keller, ‘Crisis of Authority: Medical Rhetoric and Transsexual Identity’ (1999) 11 Yale Journal of Law and Feminism 51, 51-2.
[22] See, generally, Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan trans, 1991 ed). On this, see also Carol Smart, Feminism and the Power of Law (1989), 13-20.
[23] The HAD can be differentiated from the HPD on the basis not only of geography and jurisdiction (it being a peculiarly American phenomenon), but also on the basis of chronology. Indeed, it appears now that even in America the HPD has been largely superseded by the HAD. As one commentator graphically describes, the HPD has ‘morphed’ into the HAD. See Christina Pei-Lin Chen, ‘Provocation’s Privileged Desire: The Provocation Doctrine, “Homosexual Panic”, and the Non-Violent Unwanted Sexual Advance Defense’ (2000) 10 Cornell Journal of Law and Public Policy 195, 201. In Australian criminal jurisdictions, as the discussion infra notes, the HAD was never preceded by the HPD. The first reported case of the HAD was in the early 1990s.
[24] This paper is centrally concerned with the issue of male-to-male homophobia-related violence. For a discussion of male-to-female homophobia-related violence, see Howe, above n 10, 357-9. For a discussion of race, ethnicity and culture in the context of the HAD and of Australian provocation law generally, see Santo de Pasquale, ‘Provocation and the Homosexual Advance Defence: The Deployment of Culture as a Defence Strategy’ (2002) 26 Melbourne University Law Review 110.
[25] Ian Leader-Elliott, ‘Battered But Not Beaten: Women Who Kill in Self Defence’ (1993) 15 Sydney Law Review 403, 406.
[26] Bendall and Leach, above n 3, 7.
[27] For example, see Stephen Tomsen, ‘“He Had to Be a Poofter or Something”: Violence, Male Honour and Heterosexual Panic’ (1998) 3 Journal of Interdisciplinary Gender Studies 44-57; Tomsen, above n 2; Tomsen, above n 3. This paper seeks to build upon these approaches and investigate the epistemologies of the male heterosexual body in criminal legal discourse.
[28] Thus, the HAD (like the HPD) is perhaps not best described as a defence at all. Some commentators refer to it as a de facto defence. See, for example, de Pasquale, above n 24, 113. Peter Johnston explains the concepts of the HAD as being ‘incorporated into the pleas of provocation and self defence’. See Peter Johnston, ‘“More than Ordinary Men Gone Wrong”: Can the Law Know the Gay Subject?’ (1996) 20 Melbourne University Law Review 1152, 1153. These formulations are perhaps slightly misleading. It is preferable to conceive of the HAD simply as evidence in support of the established defences, and not as a discrete defence.
[29] Like the conduct of sexual assault defences, the HAD participates in the logic of ‘blaming the victim’. For critiques of the HAD which draw this parallel with feminist critiques of sexual assault trial techniques and evidentiary provisions, see Nathan Hodge, ‘Transgressive Sexualities and the Homosexual Advance’ (1998) 23 Alternative Law Journal 30, 32; Justin Vaughan and Steven Scott, ‘“Sexuality”, Violence and the Law: The Rise and Ruse of “HAD” (1997) 8 Polemic 18, 20. See also the discussion in Section III, Part C, infra.
[30] For a summary of recent NSW case law, see Jeff Sewell, ‘“I Just Bashed Somebody Up. Don’t Worry About it Mum, He’s Only a Poof”: The “Homosexual Advance Defence” and Discursive Constructions of the “Gay” Victim’ (2001) 5 Southern Cross University Law Review 47, 80-1. For earlier summaries of HAD cases, see Hodge, above n 29, 30.
[31] The law of provocation in NSW is contained in section 23 of the Crimes Act 1900 (NSW). This has been judicially interpreted to be an affirmation of the common law defence of provocation. See Stingel v The Queen (1990) 171 CLR 312, 320 (‘Stingel’); Masciantonio v The Queen (1995) 183 CLR 58, 66. Unlike in the Code States of WA, NT and Queensland (where the defence of provocation is available in the context of any crime of which assault is a component), provocation is only available in NSW as a partial defence to murder. Compare s 281 of the Criminal Code (WA); s 34 of the Criminal Code (NT); and, s 304 of the Criminal Code (Qld). Note that Tasmania has recently abolished the defence of provocation (see discussion in Section IV, Part D, infra). As far as the relevant position in the other common law states and territories goes, s 13 of the Crimes Act 1900 (ACT) is in substantially the same form as its New South Wales statutory equivalent, whilst in Victoria and South Australia the defence is entirely governed by the common law. For a succinct discussion of the incidence of the HAD in overseas common law jurisdictions, see Sarah Oliver, ‘Provocation and Non-violent Homosexual Advances’ (1999) 63 Journal of Criminal Law 586.
[32] (Unreported, Supreme Court of Victoria, Teague J, 28 May 1992) (‘Murley’).
[33] (Unreported, New South Wales Supreme Court, Studdert J, 24 November 1993) (‘McKinnon’); (Unreported, New South Wales Supreme Court, Dowd J, 19 May 1995).
[34] See Dean Kiley, ‘I Panicked and Hit Him with a Brick’ (1994) 1 Law/Text/Culture 81, which excerpts much of the contemporary media responses to the gay killings and their courtroom narratives.
[35] The proceedings of the forum are published in Bendall and Leach, above n 3.
[36] The majority of the academic criticism discussed throughout this paper has attempted to contextualise the HAD within the homophobia and heterosexism endemic to the Australian legal system (and indeed Australian society more generally).
[37] New South Wales Attorney General’s Working Party on the Review of the Homosexual Advance Defence, Homosexual Advance Defence: Final Report of the Working Party, September 1998 <http://www.lawlink.nsw.gov.au/clrd1.nsf/pages/had>
[38] Fiona Manning, Self Defence and Provocation: Implications for Battered Women Who Kill and for Homosexual Victims, Briefing Paper No 33 (1996).
[39] See New South Wales Law Reform Commission, Partial Defences to Murder: Provocation and Infanticide, Report No 83 (1997), 70-1; Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code – Chapter Five: Fatal Offences Against the Person, Discussion Paper (1998), 97-9.
[40] (1997) 191 CLR 334 (Brennan CJ, McHugh and Toohey JJ: Gummow and Kirby JJ dissenting) (‘Green’). Note that there were five separate judgments delivered in Green.
[41] Only one commentator contends that Green had nothing to do with the HAD – Tom Molomby, who was Junior Counsel in the appeal to the High Court. For an interesting, if completely misguided, reading of Green in this vein, see Tom Molomby, ‘Cases and Causes: The High Price of Propaganda’, (2003) 47 Quadrant 15; Tom Molomby, ‘“Revisiting Lethal Violence by Men” – A Reply’ (1998) 22 Criminal Law Journal 116. Other academic commentators de-emphasize the relevance of Green in the context of the HAD. These arguments are discussed in more depth in n 67, infra.
[42] Graeme Coss, ‘Revisiting Lethal Violence by Men’ (1998) 22 Criminal Law Journal 5, 9.
[43] See the cases discussed in Sewell, above n 30, 80-1.
[44] Some of these planned reforms are considered in Section IV, infra.
[45] Zillah R Eisenstein, The Female Body and the Law (1988), 29.
[46] A caveat is perhaps warranted at this juncture. This paper’s discussion of poststructuralist theories of embodiment (and, for that matter, its passing engagement with scientific discourse) unavoidably produces a crude simplification of what is undoubtedly a complex and heterogenous field of study. One is mindful of Judith Butler’s warning not to accept the sign of the ‘postmodern’ as a monolithic referent. See Judith Butler, ‘Contingent Foundations: Feminism and the Question of “Postmodernism”’, in Judith Butler and Joan W Scott (eds), Feminists Theorize the Political (1992), 3-4. To be more specific, then, this paper’s use of poststructuralism as a concept refers principally to Foucault and those feminist theorists of the body who have adopted, appropriated and extended upon his theories of discourse.
[47] A second caveat is perhaps necessary here. As Sara Mills, Discourse (1997), 1 observes, the term discourse, ‘has perhaps the widest range of possible significations of any term in literary and cultural theory’. The sense in which the term is used in this essay is largely synonymous with the concept as developed by Foucault. For an early, and useful, explication of this concept, see Foucault, above n 1.
[48] For an analogous discussion of the concept of space as a palimpsest, upon which the discursive concept of place is inscribed, see Paul Carter, The Road to Botany Bay: An Essay in Spatial History (1987).
[49] Elizabeth Grosz, Volatile Bodies: Towards a Corporeal Feminism (1994), 60.
[50] Jean Baudrillard’s theories of simulation and hyperreality are perhaps most often fastened upon by critics of ‘postmodern’ social theories as examples of the argument (popularly ascribed to ‘postmodern’ theorists of any ilk) that the ‘real world’ does not exist. See Steven Connor, Postmodernist Culture: An Introduction to Theories of the Contemporary (2nd ed, 1997). See also Butler, above n 46, 3.
[51] Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (Moore, Winston and Cammack trans, 1985 ed), 108.
[52] For an interesting recent discussion of this concept, see Anti-Discrimination Board of New South Wales, Race for the Headlines: Racism and Media Discourse (2003).
[53] Drucilla Cornell, ‘The Doubly-Prized World: Myth, Allegory, and the Feminine’ in Transformations: Recollective Imagination and Sexual Difference (1993), 105.
[54] For a discussion of the constitutive role performed by law in the construction and regulation of woman, see Dennis M Patterson, ‘Postmodernism/Feminism/Law’ (1992) 77 Cornell Law Review 254, 260.
[55] See Ngaire Naffine, ‘The Body Bag’ in Ngaire Naffine and Rosemary Owens (eds), Sexing the Subject of the Law (1997), 84.
[56] For an interesting example of judicial treatment of consent to bodily impeachment in a sexual context, see the (in)famous House of Lords case on sado-masochist practices, R v Brown [1993] 2 All ER 75 (‘Brown’).
[57] Naffine, above n 55, 85.
[58] See Judith Butler, Bodies that Matter: On the Discursive Limits of ‘Sex’ (1993), 27-55.
[59] Naffine, above n 55, 86.
[60] Cornell, above n 53, 102.
[61] On the interaction of a discourse of sexual acts and a discourse of sexual identity, see Kosofsky Sedgwick, above n 19, 38; Johnston, above n 28, 1166.
[62] Naffine, above n 55, 91.
[63] Tomsen, above n 27, 49.
[64] For a discussion of the production of the homosexual as outlaw, influenced by the writings of Giorgio Agamben, see Catherine Mills, ‘The Homosexual Advance Defence: The Law of Abandonment’ (Paper presented at the 3rd Annual Conference of the International Association for the Study of Sex, Culture and Society, Melbourne, 1-3 October 2001) (Copy on file with author).
[65] For a retelling of the facts in the Green case, see David Marr, ‘Ordinary Men: The High Court Blesses Homophobia’ in The High Price of Heaven (1999), 51-71.
[66] Abadee J was the trial judge in Green; Priestley JA and Ireland J formed the majority in the New South Wales Court of Criminal Appeal, whilst Smart J dissented in that court.
[67] The argument ran that the evidence as to Green’s father’s heterosexual assault of his two younger sisters (an assault Green had not personally witnessed) was relevant to the issue of provocation because Gillies’s actions reminded Green of his father. This argument has misled some commentators to claim that Green was not centrally concerned with the HAD but rather with the issue of child sexual assault. This argument (and its partial academic acceptance) is dependant on a conflation of homosexual sex with aggressive and predatory sexual assault, a conflation which is itself derived from a particular discursive conception of the male body (as this paper argues). For examples of the more extreme arguments that Green was not about homophobia or the HAD, see the two articles by Molomby, above n 41. For examples of academic work which, pursuant to the child sexual assault argument, de-emphasizes the relevance of Green in the context of HAD jurisprudence, see Rebecca Bradfield, ‘Criminal Cases in the High Court of Australia: Green v. The Queen’ (1998) 22 Criminal Law Journal 296, 303; Rebecca Bradfield, ‘Provocation and Non-violent Homosexual Advances: Lessons from Australia’ (2001) 65 Journal of Criminal Law 76, 83; Bronwyn Statham, ‘The Homosexual Advance Defence: “Yeah, I Killed Him, But He Did Worse to Me”’ (1999) 20 University of Queensland Law Journal 301, 309.
[68] Quoted in Green (1997) 191 CLR 334, 391 (per Kirby J).
[69] For a discussion of the facts in Murley, see Johnston, above n 28, 1165.
[70] Quoted in Ibid 1174.
[71] Quoted in Green (1997) 191 CLR 334, 346 (per Brennan CJ) (emphasis added).
[72] Ibid 345 (per Brennan CJ) (emphasis added).
[73] It also discloses a familiar conceptual attachment to liberal notions of autonomy, equality and the rule of law. The acceptance by the minority judges in Green of this liberal framework does impair their ability to mount a more systematic, epistemological critique of the HAD. For examples, see Green (1997) 191 CLR 334, 386-7 (per Gummow J), 415-6 (per Kirby J). For an article which adopts a similar approach, see Jarod Potter, ‘Does the “Homosexual Advance Defence” Erode Equality Before the Law in Criminal Cases?’ (2001) 3 e-valuate <http://www.law.ecel.uwa.edu.au/elawjournal>
[74] Green (1997) 191 CLR 334, 414, 416 (per Kirby J) (emphasis added).
[75] Ibid 348 (per Toohey J).
[76] For an example of the former, see New South Wales Attorney General’s Working Party on the Review of the Homosexual Advance Defence, above n 37, [4.10], [4.16]. For an example of the latter, see Allen George, ‘“Roll a Fag and Go Free”: Competing Discourses of Sexuality and Sexual Identity’ (1995) 1 Journal of Interdisciplinary Gender Studies 49, 50.
[77] Hodge, above n 29, 32.
[78] This has almost become a cliché of much feminist writing on the procedural and substantive law of sexual assault. Sadly, these insights have to a large measure not permeated the legal apparatus (see n 80, infra). For analyses of the HAD which also draw this parallel, see Vaughan and Scott, above n 29, 20; Johnston, above n 28, 1178; Robert B Mison, ‘Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation’ (1992) 80 California Law Review 133, 170-4
[79] de Pasquale, above n 24, 118.
[80] Indeed, several recent infamous Australian examples of unreconstructed comments from the bench evidence the corollary of this proposition (namely, that a violent heterosexual advance can often be entirely acceptable). For perhaps the most egregious example, see the ‘rougher than usual handling’ comments of Bollen J in R v Johns (Unreported, South Australian Supreme Court, Bollen J, 26 August 1992), 12-3.
[81] Quoted in Green (1997) 191 CLR 334, 345 (per Brennan CJ). David Marr relates a revealing moment in the transcript of proceedings before the High Court, where Brennan CJ interrupted an exchange between McHugh J and Keith Mason, QC, Solicitor-General for the State of New South Wales. Brennan CJ interrupted Mason’s reconstruction of the facts thus: ‘When you say “amorous”, you mean sexual?’. Mason stated that he was merely employing the words of Priestley JA of the New South Wales Court of Criminal Appeal, but accepted Brennan CJ’s reproach. This exchange is illustrative of how in HAD cases stereotypes about lascivious and depraved homosexuality (i.e. mere lust as opposed to emotional love) often attend the more powerful inscriptions of the male heterosexual body. See Marr, above n 65, 68.
[82] Green (1997) 191 CLR 334, 341, 346 (per Brennan CJ).
[83] Green (1997) 191 CLR 334, 369 (per McHugh J).
[84] The facts in McKinnon are discussed in George, above n 76, 50.
[85] For a recent example, see the media discourse (and indeed parliamentary debates) surrounding the passage of the Crimes Amendment (Sexual Offences) Act 2003 (NSW), which amended the Crimes Act 1900 (NSW) to provide for an equal age of consent for male homosexuals in NSW.
[86] Kiley, above n 34, 89.
[87] Quoted in Green (1997) 191 CLR 334, 348 (per Toohey J).
[88] For a discussion of the facts and the decision in R v X (Unreported, New South Wales Supreme Court, Grove J, 11 April 1994) (‘X’), see Allen George, ‘The Gay (?) Victim on Trial: Discourses of Sexual Division in the Courtroom’ in Gail Mason and Stephen Tomsen (eds), Homophobic Violence, (1997), 46-57.
[89] Quoted in Johnston, above n 28, 1171-2.
[90] Green (1997) 191 CLR 334, 414 (per Kirby J).
[91] Quoted in Green (1997) 1
[91] CLR 334, 360 (per McHugh J).
[92] Adrian Howe, ‘Green v. The Queen: The Provocation Defence: Finally Provoking Its Own Demise?’ (1998) 22 Melbourne University Law Review 466, 486.
[93] New South Wales Attorney General’s Working Party on the Review of the Homosexual Advance Defence, above n 37, [6.11].
[94] Ibid [6.12].
[95] The quotation is from Sir Owen Dixon CJ’s swearing-in, reported in (1952) 35 CLR xi, xiv.
[96] See R v Hodge (Unreported, New South Wales Supreme Court, Dunford J, 25 August) (‘Hodge’); R v Graham (Unreported, New South Wales Supreme Court, Whealy J, 10 November); R v Andrews (Unreported, New South Wales Supreme Court, Sully J, 2 July 1999).
[97] Sewell, above n 30, 55-71.
[98] See generally, Part 3.2 of the Evidence Act 1995 (NSW), which contains the exceptions to the hearsay rule, and Part 3.6, which governs the admission of tendency and coincidence evidence.
[99] See Sewell, above n 30, 73-7.
[100] Ibid 73-4.
[101] Ibid 75.
[102] Ibid 76-7.
[103] Ibid 77.
[104] For example, a corporeal analysis like the one conducted here would proffer the explanation that the discursive construction of the male heterosexual body in the legal narratives of the HAD facilitates the conflation of sexual acts with sexual identity, given that where a male body is penetrated the one who penetrates that body instantly becomes pathologised as a predatory penetrator, a dangerous monster and outcast.
[105] Sewell, above n 30, 73.
[106] New South Wales Attorney General’s Working Party on the Review of the Homosexual Advance Defence, above n 37, [6.5]-[6.7]. See above n 31 for references to comparable state provisions.
[107] Helen Brown, ‘Provocation as a Defence to Murder: To Abolish or To Reform?’ (1999) 12 Australian Feminist Law Journal 137, 140.
[108] See also Chen, above n 23, 230-3.
[109] Compare the following view with the abolitionist arguments discussed in Section IV, Part D, infra: ‘Abolition is not advocated because most heat-of-passion killings of males [sic] victims by male offenders do not revolve around the participants [sic] sex, gender and or sexual orientation’ (Ibid 231). With respect, the paradigmatic provocation scenario adverted to here revolves around nothing if not the sex, gender and sexuality of the participants. That abolitionist arguments are almost exclusively directed towards eradicating male violence against women should not derogate from the obligation to eradicate all forms of gendered violence, for the legitimation of masculinist violence in all its forms must be the aim of a progressive legal strategy. Male-to-male violence and its legal rationalisation has significant discursive consequences.
[110] Obviously, the only source of information regarding the victim and his actions is the defendant. See Johnston, above n 28, 1166. In a feminist context, see Jenny Morgan, ‘Dead Women Tell No Tales, Tales are Told About Them’ (1997) 21 Melbourne University Law Review 237.
[111] See, for example, New South Wales Attorney General’s Working Party on the Review of the Homosexual Advance Defence, above n 37, [4.16], [5.12].
[112] Alternatively, as per the strategy adopted in Green, the defence may rely on the discursive linkage of homosexuality and paedophilia. On this, see Ben Golder, ‘‘[I]t forced me to open more than I could bear’: HAD, Paedophilia, and the Discursive Limits of the (Male Heterosexual) Body’ (Paper presented at the 11th International Conference of the Law and Literature Association of Australia, Melbourne, 29 November-1 December 2002) (Copy on file with author).
[113] Adrian Howe, ‘Provoking Polemic – Provoked Killings and the Ethical Paradoxes of the Postmodern Feminist Condition’ (2002) 10 Feminist Legal Studies 39, 39.
[114] For example, see Adrian Howe, ‘Homosexual Advances in Law: Murderous Excuse, Pluralised Ignorance and the Privilege of Unknowing’ in Carl Stychin and Didi Herman (eds), Sexuality in the Legal Arena (2000); Howe, above n 10; Howe, above n 92; Ibid. Interestingly, by no means all those who have identified the defence’s patent gender bias explicitly adopt a feminist approach. For example, see Jeremy Horder, Provocation and Responsibility (1992); Joshua Dressler, ‘When “Heterosexual” Men Kill “Homosexual” Men: Reflections on Provocation Law, Sexual Advances and the “Reasonable Man” Standard’ (1995) 85 Journal of Criminal Law and Criminology 726. Note that Dressler is even a supporter of the provocation defence.
[115] The common law has in this context traditionally viewed premeditated killing as more culpable than a sudden act committed in passion. See New South Wales Law Reform Commission, above n 39, 64-5.
[116] Hence, the reform suggestion proposed by Brown, above n 107, 140.
[117] For a summary of some of this recent case law, refer to Howe, above n 10, 357-9. Note also the facts of the High Court case, Stingel, where the defendant allegedly lost control of his actions upon finding his ex-girlfriend engaging in sexual activities with another man in a car.
[118] There is a sizeable critical literature devoted to the Battered Woman Syndrome (‘the BWS’). Unfortunately, time and space constraints preclude a fuller discussion here, but the important point to note is that the attempt to utilise the BWS to circumvent the gendered rules of provocation and self-defence law has met with criticism from within legal feminist circles. This criticism claims, inter alia, that the BWS pathologises women’s experiences of victimisation. For a useful discussion, see Julie Stubbs and Julia Tolmie, ‘Race, Gender, and the Battered Woman Syndrome: An Australian Case Study’ (1995) 8 Canadian Journal of Women and the Law 122.
[119] Perhaps it is more accurate to state that the decision to abolish the defence of provocation is a conclusion increasingly arrived at by law reform bodies, although perhaps one not entirely motivated by feminist considerations. For instance, see Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, above n 39. Recently, the ACT Government released a discussion paper placing the defence of provocation under review. See, Department of Justice and Community Safety, Gay, Lesbian, Bisexual, Transgender and Intersex People in the ACT: An Issues Paper (2003), 21-2. This paper discusses, at 21, previous Australian and New Zealand law reform bodies which have advocated abolition.
[120] See the Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas).
[121] It is perhaps misleading to refer to the abolitionist strategy as a strategy explicitly deployed to remove the HAD. This formulation may actually be ‘back-to-front’. Indeed, as Howe notes, the example of the HAD simply presents (yet) another reason to abolish the defence of provocation: ‘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’. See Howe, above n 10, 337.
[122] The abolition of the defence of provocation is still a useful strategy. As the discussion illustrates, the defence is clearly gender biased and its abolition would represent an important gain. Rather, the crucial point is that legal solutions cannot be pursued outside of the context of a wider discursive contesting of the construction of the body in legal discourse.
[123] See the Appendix at the conclusion of Sewell, above n 30, 80-1, for a list of recent self-defence cases.
[124] This is perhaps a more apt criticism as it applies to the reforms discussed in, respectively, Parts A, B, and C, of Section IV.
[125] For a classic exposition of this argument, see Smart, above n 22.
[126] Johnston, above n 28, 1182 (emphasis added).
[127] Ibid 1181.
[128] Naffine, above n 55, 91.
[129] Jennifer Nedelsky, ‘Law, Boundaries, and the Bounded Self’ (1990) 30 Representations 162, 162.
[130] The concept of a ‘constitutive outside’, much employed in poststructuralist writings, is often attributed to Jacques Derrida. See Butler, above n 46, 20. It is used here to signify an excluded domain of objects whose exclusion constitutes the unity of a primary domain. For example, the concept of the ‘human’ depends structurally on correlative concepts of the ‘not-human’, which have historically included women (non-men), people of non-white backgrounds, non-heterosexually-identifying people, and so forth.
[131] Lawrence et al v Texas 539 US_(2003), 1 (per Kennedy J) (‘Lawrence’).
[132] Lawrence is an interesting example of how liberal jurisprudence – here, the right to privacy – is employed to resolve a broader, discursive political problem. As the discussion in Section IV, infra, demonstrates the significant long-term drawbacks of such a strategy offset the short-term gains.
[133] See the discussion in Naffine, above n 55, 91-3.
[134] Note that, as in all law reform projects, care must be given to addressing the civil liberties ramifications of the project. Any project will have unforeseen legal consequences which will need to be addressed or recuperated in some way.
[135] See Lise Gotell, ‘Litigating Feminist “Truth”: An Antifoundationalist Critique’ (1995) 4 Social and Legal Studies 99.
[136] For an example of the prevailing judicial orthodoxy, taken from the extra-curial writings of the High Court’s newest appointee, see Justice Dyson Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 47 Quadrant 9.