Author:	Ben Golder BA(Hons), LLB Lecturer, University of New South Wales Faculty of Law
Subjects:	Criminal law (Other articles) Criminal liability - psychological aspects (Other articles) Homosexuality (Other articles)
Issue:	Volume 11, Number 1 (March 2004)
Category:	Refereed Articles

Contents

• Introduction
• Definitions, History, Context
• Homosexual Panic Defence
• Homosexual Advance Defence
• The Discursive Construction of the Male Heterosexual Body in the HAD
• The Discursive Body
• The Logic of the Bounded Male Heterosexual Body
• Identifying the Body in the HAD Narratives: Reading Green
• The Limitations of the Liberal Law Reform Project
• 'Court of Morals' Direction
• Evidentiary Reform
• Amendment of Provocation Provisions
• Abolitionist Arguments
• Towards a Poetics of Law Reform
• Objective
• Difficulties
• Principles and Examples
• Conclusion
• Notes

We must conceive discourse as a violence that we do to things, or, at all events, as a practice we impose upon them.[1]

Introduction

1. For some years now, the familiar story of a (homicidal) heterosexual hero overpowered by a predatory ‘poofter’ has played to critical acclaim in Australian criminal courtrooms. Judges and juries alike have listened with unquestioning awe to tales of bodily impeachment and male honour, as defence barristers have constructed this primal, almost cinematic, narrative of Australian heterosexual masculinity under attack. The familiar narrative referred to is the Homosexual Advance Defence (‘the HAD’), and this paper is a contribution towards the growing body of legal theory dedicated to its critique (and eradication).

2. However, there is a need to expand upon the conceptual approaches adopted by some of the reform-oriented legal commentary on the HAD. It is argued that whilst mainstream critiques of the HAD remain grounded in the conceptual framework of liberal legalism, such contributions will fail to address the underlying epistemological and structural causes of the HAD and merely (re)produce a myopic legal reformism. Prior reform jurisprudence in this vein has misconstrued the relation between the body and the law, and consequently, has elided the constitutive role that the former performs in inscribing the latter. As a corrective, this paper argues that a more productive way to approach the issue of the HAD is to identify the discursive construction of the male heterosexual body within the legal narratives of the HAD. By embedding the HAD within a corporeal economy, and by tracing the particular inscriptions of the body upon which it relies and through whose reproduction it is sustained, a clearer picture of the HAD’s operation will emerge. This methodology implies, and indeed necessitates, a much more radical reformist praxis of rewriting legal metaphors of the body. Simply put, discursive/corporeal problems call for discursive/corporeal solutions – embodiment informing legal discourse.

3. In the discussion that follows, Section II introduces and defines the concept of the HAD as well as a related legal concept, the Homosexual Panic Defence (‘the HPD’). Section III addresses the question of the inscription of the body in legal discourse, discussing critical poststructuralist approaches to the body and the specific ways in which the HAD encodes the male heterosexual body. It is contended that the male heterosexual body is constructed in the narratives of the HAD as bounded and impermeable and that this construction is central to the functioning of the HAD. Section IV discusses some of the major law reform proposals in the context of the HAD, and demonstrates how they are practically limited by their tactical failure to investigate the epistemological and corporeal basis of the HAD. Finally, it is argued in Section V that the most effective approach to the HAD is to enact a poetics of law reform which, following the poststructuralist insights discussed in Section III, seeks to reinscribe the body in legal discourse. What is thus proposed is not an abjuring of law reform but, rather, a law reform agenda (re)focused upon the body. As the following discussion will demonstrate, this more radical and fundamental approach to the HAD is a broader step in the struggle to eradicate the endemic (hetero)sexualised legal violence in contemporary Australian life.[2]

   Definitions, History, Context

   Homosexual Panic Defence

4. It is perhaps sensible to commence by defining the HAD in contradistinction to a very similar term, the HPD. These terms are frequently used interchangeably in the literature on homophobia-related violence and criminal defences.[3] However, although they refer to similar scenarios, there are still a number of salient historical, jurisprudential, medico-legal and discursive distinctions between the two concepts. It is hence important to avoid collapsing the epistemological distinction between the HAD and the HPD. Observing the distinction is not simply a question of historical and jurisprudential accuracy, but rather, more broadly, it is likely that normative strategies for abolition or reform of the two categories will differ relevantly in their scope, targets, emphasis and application.

5. To begin with, the appearance of the HPD predates that of the HAD.[4] The former term was originally employed by American academics and activists to refer to US cases in which a defendant would plead insanity, or diminished responsibility, in answer to the charge of murdering a gay male victim, where that victim had made an unsolicited sexual advance upon the defendant. The plea rested on the rather dubious clinical basis of a psychological disorder entitled ‘acute homosexual panic’, a condition first identified by the psychiatrist Edward J Kempf in 1920.[5] Kempf developed his theory whilst working in a government mental institution during and in the years following World War I, studying the deleterious effects on returned soldiers and sailors of having been ‘grouped together in same-sex environments for prolonged periods during the War’.[6] According to the psychological literature, the standard script is that the subject who suffers from the disorder is in actual fact a ‘latent homosexual’ who is terrified of his attraction to other men yet is similarly terrified of heterosexuality. In Kempf’s case histories, the disorder of ‘acute homosexual panic’ does not lead to the sort of brutal violence which typifies contemporary legal narratives, but rather the subject suffers from feelings of disgust and self-loathing more likely to manifest in self-harm and suicide than inter-personal violence.[7]

6. The HPD as a legal concept was developed from the ‘acute homosexual panic’ disorder by criminal defence attorneys anxious to fashion a forensic justification for their clients’ extreme homophobia-related violence. Thus was Kempf’s specious psychological creation ingeniously pressed into service in the criminal courtroom as an exculpatory strategy. It is important to stress that the HPD is not actually, and never was, a defence in its own right. It is in this respect similar to the HAD. Rather, the defence tactic functions by leading evidence of a defendant’s ‘latent homosexuality’ in support of a recognised substantive defence such as insanity, diminished responsibility or (depending upon the jurisdiction) substantial impairment.[8] To simplify somewhat, the legal claim is that ‘a person with latent homosexual tendencies will have an extreme and uncontrollably violent reaction when confronted with a homosexual proposition’,[9] leading to a momentary (yet irrevocably lethal) loss of self-control. Assuming that the legal criteria for the relevant defence are established, then, depending on the plea, this loss of self-control serves either to absolve the defendant from criminal liability, or to mitigate that liability.[10]

7. Evidently, the abject psychological narrative of Kempf’s original disorder (in which the subject suffers from a debilitating self-loathing) and the violent legal script of the HPD (in which the subject spontaneously becomes murderously violent) are somewhat divergent. Indeed, this is one of the more limited criticisms made of the HPD by some legal commentators. For example, Kara S Suffredini concludes that:

8. In sum, the relationship of the HPD to the psychiatric disorder is tenuous at best. The various points of departure between the legal defense and the clinical disorder, when coupled with the legal system’s failure to demand a consistent definition of the defense across cases, suggests that the HPD is barely rooted, if at all, in the bona fide homosexual panic disorder.[11]

9. This criticism echoes the earlier comments of Gary David Comstock, who argues that ‘legal defenses have misappropriated the disorder’.[12] Thus, as far as critics such as Suffredini and Comstock are concerned, the two central problems with the HPD are: first, its disarticulation from the psychological disorder upon which its claims to forensic validity are predicated;[13] and secondly, its (corresponding) potential for misuse by legal practitioners.[14] According to this theory, a valid psychological affliction has been perverted to cynical forensic ends by unscrupulous defence attorneys, a process in which judges and juries (imbued with societal homophobia in equal measure) are themselves complicit.[15] Suffredini even goes so far as to advocate ‘conforming the HPD to the disorder’ in order to circumscribe its effect and confine its application to those genuinely suffering from ‘acute homosexual panic’.[16] Indeed, Suffredini asserts that ‘[t]hese problems belie a troubling lack of emphasis in the legal system on detecting and only defending bona fide instances of homosexual panic disorder’.[17]

10. The explanatory potential of the above argument is seriously limited by its uncritical acceptance of the psychological disorder’s validity. Its consequent inability, or reluctance, to interrogate the philosophical basis upon which the supposed ‘acute homosexual panic’ disorder rests, serves to foreclose the possibility of a more wide-ranging, structural criticism of the HPD.[18] The ensemble of medical, psychological and legal discourses which together constitute the HPD are in fact susceptible of a much more systematic epistemological critique than the above approaches of Comstock and Suffredini admit. Indeed, Adrian Howe signals the more radical possibilities of such a critique when she observes that:

11. From a Foucauldian perspective, what is required for an analysis of HPD and HAD is not proof of ‘latent homosexuality’, but rather a thorough genealogical excavation of the controlling discourses which constitute homosexuality as a disorder and make such defences possible.[19]

12. This angle of critique recognises that the ‘acute homosexual panic’ disorder and its legal incarnation, the HPD, are classic examples of the patriarchal, heterosexist cultural logic according to which non-heterosexual (and hence non-procreative, wasteful and aberrant) desires are stigmatised, medicalised and pathologised.[20] Such categorisations are by no means creatures of the distant past. Indeed, it was only as recently as 1973 that the American Psychiatric Association officially ceased to regard homosexuality as a mental illness.[21] The imbrication of (homo)sexuality and pathology is a cultural process which compels critical attention.

13. The kinds of questions that must be asked of the HPD are the ones that Howe foreshadows in the quotation extracted above. What are the discourses that permit and enable the construction of homosexuality as ‘disease’ and ‘disorder’? How do what Foucault calls the ‘psy’ professions interact, or collude, with legal approaches to sexuality?[22] Upon what notions of the body are these discourses dependent for their understandings of sexuality? Consequently, what deconstructive strategies are available for resisting these discourses? It is this critical poststructuralist methodology which this paper seeks to apply to the more recent phenomenon of the HAD. Through a critical reading of the HAD, this paper aims to situate the legal construct within a general economy of the body and, by so doing, to trace the epistemological and discursive foundations upon which the legal phenomenon rests. Whereas a serious study of the HPD demands an interrogation of contemporary psychological discourses, a study such as this one compels an interrogation of legal constructions of the body. Before turning to legal constructions of the body, however, Part B outlines a brief legal and historical sketch of the HAD.

    Homosexual Advance Defence

14. Before embarking on a critical reading of the HAD, it is important – as with the HPD – to clarify some legal and historical terms. As the above discussion demonstrates, the HPD is largely confined in its operation to the respective criminal jurisdictions of the American states.[23] The Australian literature on homophobia-related violence and criminal defences does not refer to any reported instance of the HPD in an Australian criminal jurisdiction. A survey of Australian homicide cases reveals a similar result. Rather, it is the HAD which is the defence of choice in Australian criminal jurisdictions for defendants charged with the murder of a gay man.[24] Ian Leader-Elliot hypothesizes that this discrepancy between the American and Australian jurisdictions is in part attributable to ‘the American tendency to overcome deficiencies in the law of self defence and provocation by invoking mental illness or incapacity’.[25] The modern Australian male evidently does not feel constrained to pay lip service to the discourses of pathology or medicalisation in the criminal courtroom. As Anthony Bendall and Tim Leach observe, there is a marked difference between the terminology of ‘homosexual panic’ – which implies ‘real irrationality or a pathological defect on the part of the accused’ – and ‘a common, “garden variety” straight masculinity [with its] reliance on codes of “male honour”’.[26] Since the early 1990s, when the HAD first emerged in Australia, defence barristers and their clients have placed their faith squarely in the latter concept. Indeed, the HAD, as a rich strand of contemporary Australian criticism has argued, is a strategy heavily reliant for its cultural force upon patterns and understandings of male honour.[27]

15. In short, the HAD is a legal tactic – like the HPD – whereby evidence of an unwanted sexual advance made by a gay victim towards the accused is led in support of a recognised, substantive defence.[28] In this scenario, the evidence is supportive of either self-defence or provocation. This marks another notable difference between the HPD and the HAD, as with the former the ‘blame’ is located in the pathologically confused sexuality of the accused, whilst with the latter the ‘blame’ inheres in the (homo)sexually threatening or provocative conduct of the victim.[29] Thus, depending upon the way in which it is strategically deployed, the HAD can act either as a plea in exculpation (self-defence) or mitigation (provocation) of lethal homophobia-related violence. However, the HAD is used most often, and is most often successful, in the context of a provocation plea.[30] Accordingly, this paper, like the majority of the critical commentary on the topic of the HAD, focuses on case law where evidence of an unwanted sexual advance is led in support of a plea of provocation to the charge of murder.[31]

16. As indicated above, the HAD first surfaced in Australian criminal jurisdictions in the early 1990s. The 1992 Victorian case of R v Murley has the dubious honour of being the first recorded instance of the HAD in Australia.[32] This case was followed not long after by the New South Wales cases of R v McKinnon and R v Bonner (in 1993 and 1995, respectively).[33] These trials, and the disturbing legal trends which they disclosed, drew the ire of the metropolitan gay media and, to a lesser extent, the attention of the mainstream press (which was predictably not as vehement in its condemnation of the new legal phenomenon).[34] The response of the activist and academic communities to the HAD’s increasing deployment in Australian criminal courtrooms was swift. In April 1994 the Gay and Lesbian Rights Lobby, the Lesbian and Gay Anti-Violence Project and the Lesbian and Gay Legal Rights Service convened a public forum on the HAD.[35] Similarly, academic writings condemning the new legal strategy and placing it within the context of societal homophobia and escalating violence towards gays and lesbians in Australia soon began to enter public discourse.[36]

17. To some extent, and as a result of the abovementioned pressure, the question of reforming the HAD also entered official government discourse. Indeed, it was partly in response to this (localised) community outrage that the New South Wales Attorney General’s Department convened a Working Party to discuss law reform proposals relating to the HAD.[37] The HAD has also been the subject of a New South Wales Parliamentary Library Briefing Paper,[38] and has been considered, if only marginally, in the context of a New South Wales Law Reform Commission Report and a Model Criminal Code Officers’ Committee Discussion Paper.[39] This (somewhat gestural) institutional recognition has been supplemented, extended and problematised by a body of much more radical activist and academic criticism.

18. Predictably, the High Court of Australia – generally impervious to the kind of radical, or even reformist, legal scholarship adverted to above – has not joined in the growing chorus of dissent. Rather, it has chosen to lend its support to this insidious jurisprudence of sexual hatred. In 1997 it handed down its much-anticipated decision in Green v The Queen.[40] This now (in)famous decision, as the overwhelming majority of legal commentators argue, had the effect of entrenching the HAD in Australian criminal jurisprudence.[41] Graeme Coss, editor of the Criminal Law Journal, echoed the sentiments of many academic critics when he wrote at the time that ‘this is the most disappointing High Court [majority] judgment I have read’.[42] Green is discussed in further detail in Section III, Part C, below.

19. Since Green, the deployment of the HAD in criminal courtrooms has continued unabated.[43] Furthermore, it has done so unencumbered by any of the mooted legislative reforms suggested by the pre-Green law reform bodies.[44] The remainder of this paper is directed towards remedying this significant omission and suggesting fresh ways to combat the HAD. As a first step, the next section outlines a critical poststructuralist methodology which will be of central use in decoding the HAD narratives and in formulating more radical, and hopefully more effective, law reform proposals.

    The Discursive Construction of the Male Heterosexual Body in the HAD

20. Whilst Section II, above, mapped the respective legal, political and historical trajectories of the HPD and the HAD, it is now important to return to the question of a critical poststructuralist approach to the HAD. Accordingly, the following section attempts to adumbrate a poststructuralist approach to the body as a critical entry point to the HAD. The scope of this paper precludes a fuller examination of poststructuralist thought and the significant impact which its insights have had upon contemporary jurisprudence generally. However, for the purposes of theorising the epistemological underpinnings of the HAD and the way in which the male heterosexual body is constructed in its legal narratives, the following discussion will hopefully prove useful. Part A outlines some general principles of a critical poststructuralist approach to the body; Part B draws on the work of Ngaire Naffine and other theorists of the body in liberal legal discourse; and, finally, Part C demonstrates how the legal narratives of the HAD encode the male heterosexual body and, more importantly, how this sustains the justification of (hetero)sexualised violence.

    The Discursive Body

21. Orthodox Western scientific theory on the human body, and indeed general ‘common sense’ understandings of the body (which to a large extent are informed by the corpus of scientific knowledge), hold that the body is a discrete biological entity which can be studied in an objective manner. Zillah Eisenstein neatly summarises this predominant point of view:

    The scientific method with its standpoint of objectivity establishes the study of biology as the science of the body. According to it, the only thing more natural than nature is the body. The body connotes a definite, concrete, finite thing. Its meaning and contours are given and static. The body stands outside society, history, and language.[45]

    In this scientific/‘common sense’ understanding of the body, the body is the basic biological building block of human society. Knowledge about the body can be derived from the body through studying its form and processes. The body is hence presented as an object for scientific study. It is indubitably and unalterably biological.

22. Poststructuralist understandings of the body are epistemologically counterposed to this dominant scientific perspective.[46] Against the scientific understanding of the body as biological entity, poststructuralist theory contends that the body is actually a cultural artefact. According to this view, the body does not stand outside the influences of society, history, language, and indeed science, but is in fact invested by them with meaning. The body derives its meaning from discourse, or, to be more precise, one derives one’s understanding of the body by and through discourse.[47] This process is commonly figured in tropes of textuality. The biological body is hence written on, scripted, encoded, inscribed, etc. by discourse. The body itself can be read as a palimpsest,[48] upon whose biologically blank slate the manifold and contesting influences of society, history, language and scientific discourses come to bear. The following quotation from Elizabeth Grosz provides an interesting counterpoint to the scientific definition of the body extracted above:

    [T]he body is literally written on, inscribed by desire and signification, at the anatomical, physiological, and neurological levels. The body is in no sense naturally or innately physical, sexual or sexed. It is indeterminate and indeterminable outside its social constitution as a body of a particular type … [T]he body … is an open-ended pliable set of significations, capable of being re-written, reconstituted in quite other terms than those which mark it, and consequently capable of reinscribing the forms of sexed identity and physical subjectivity at work today.[49]

23. Two aspects of Grosz’s understanding of the body are of immediate relevance. First, to accept the poststructuralist proposition that the body is, at least on the level of (re)signification, a function of discourse is not to assert that the body is somehow insubstantial, or, worse, does not really exist. This all-too-common Bowdlerisation (or, perhaps more accurately, this Baudrillardisation)[50] of poststructuralist insights both simplifies and generalises what is actually a relatively modest claim. Put simply, the argument contends that one does not, or rather one cannot, experience one’s body otherwise than through discourse – there is no pure or extra-discursive body that is not always already constituted by discourse. Ernesto Laclau and Chantal Mouffe expand upon this point:

    The fact that every object is constituted as an object of discourse has nothing to do with whether there is a world external to thought, or with the realism/idealism opposition. An earthquake or the falling of a brick is an event that certainly exists, in the sense that it occurs here and now, independent of my will. But whether their specificity as objects is constructed in terms of ‘natural phenomena’ or ‘expressions of the wrath of God’, depends upon the structuring of a discursive field. What is denied is not that such objects exist externally to thought, but the rather different assertion that they could constitute themselves as objects outside any discursive condition of emergence.[51]

24. Secondly, and this point resonates with the previous one, the discursive body is at once both intensely real and ineluctably contingent. This proposition need not imply a form of cognitive dissonance once one acknowledges that mainstream, or hegemonic, discursive practices are powerful in spite of, or perhaps by very reason of, their constructedness. For example, to state that the concept of race is a discursive function is by no means to derogate from the powerful (and manifest) observation that, especially given its contemporary linkage and imbrication in Australian public discourse with notions of crime and deviance,[52] race produces very real material, institutional and corporeal effects. Rather, it is simply to observe that racial divisions are functions of discourse mapped onto bodies, that they are experienced differently, and that there is nothing biologically immutable about the way in which they function. They can hence, at the expense of great counter-discursive effort, be remapped.

25. Such a stance has very tangible ramifications for the kind of legal reformist praxis one adopts. As later sections will demonstrate, this paper’s adoption of a poststructuralist frame of reference leads to the position that the most effective method of dealing with the legal violence of the HAD is to accept the contingency of the body and to attempt to rewrite it. What is written can always be rewritten. As Drucilla Cornell, in dialogue with Catherine MacKinnon asks:

    To argue that feminine desire loses its power of negativity because it is socially constructed from the male point of view implicitly asserts that a social construct can be turned into a fortress sturdy enough to fend off the transformations inherent in the metaphoricity of language in which it is built. Why bolster the fortress by asserting its unshakability?[53]

    The part below, deals with the specific types of body constructed in and by law.

    The Logic of the Bounded Male Heterosexual Body

26. If the discourses of science and law do not merely reflect a body, but perform a constitutive role in defining, inscribing and constructing the limits and the contours of that body, then what exactly does the body of law look like?[54]

27. The work of Ngaire Naffine, at the juncture of law, feminist theory and the body, provides a starting point from which to begin to answer the above question.[55] In the course of a discussion of the law of sexual assault and its differential construction of gendered bodies, Naffine performs a detailed reading of the work of liberal philosophers, Immanuel Kant and John Stuart Mill. She argues that the body contemplated by liberal political theory – and indeed that contemplated by contemporary legal discourse – is bounded, autonomous and impermeable. The physical limits of this body are stable and impenetrable, and these bodily limits (the epidermal border) inform legal notions of consent, harm and assault.[56] It seems almost trite to say, of course, that this body is inescapably gendered, for the body imagined by Kant and Mill, and the body reproduced in the texts and practices of legal discourse (its judgments, statutes, commentaries, procedures, postures, gestures, and so forth) is a male body. Naffine writes:

    In short, what I think we can discover at the heart of the law of human contact is a quite particular idea of a bounded, embodied subject, which bears a strong kinship to Kantian man. The person presupposed by the law of assault is a discrete, distinct, volitional subject for whom the skin of his body is considered to represent a boundary from other distinct subjects … People are essentially bounded and separate, they come in closed body bags, and it is vital that one person not interfere with the body bag of another unless there is a positive agreement to make contact.[57]

28. The legal construction of the body as discrete, bounded, impermeable and male relies for its conceptual force upon the simultaneous constitution of a domain of non-bodies, or, to paraphrase Judith Butler, bodies that do not matter.[58] First among these putative non-bodies in this imagined corporeal economy is the female body. The female body is characterised by its apertures, its permeability and its susceptibility of penetration. Woman in this schema is an incomplete and lesser version of man:

    The implication (which is certainly never drawn out in his [Kant’s] thesis), is that women in such circumstances somehow have a reduced status as persons because their body bag, their skin, has been punctured and permeated.[59]

29. Cornell observes that ‘[t]he man is the one who penetrates, not the one who is penetrated. That’s what … makes him a man’.[60] Under conditions of compulsory and hegemonic heterosexuality, of course, the second way that one can be ‘not-man’, is to permit oneself to be penetrated. Hence, the second ‘non-body’ produced by the inscription of the body of law as impermeably male, is the homosexual man. Evidently, the inscription of law’s body is not simply gendered, but heterosexed as well. The (supposed or imputed) sexual practices of the homosexual man challenge the integrity of this paradigmatic body of law,[61] for the much-vaunted boundaries of the male heterosexual body are breached in the act of penetration. Naffine relates the problematic of this liminal and dangerous homosexuality when she writes that, in the legal regime of the bounded male heterosexual body, ‘loving penetration of a man by a man is highly corrosive to bodily sovereignty’.[62]

30. To summarise, then, a critical poststructuralist approach to the HAD asserts that the body is a discursive production, not a biological fait accompli. As Naffine’s feminist analysis illustrates, the dominant construction of the body in contemporary legal discourse (which still locates itself firmly within the Kantian tradition) is a gendered and heterosexed one: the bounded male heterosexual body. This bodily economy produces, and is dependent upon for its very maintenance, an abjected domain of non-bodies, of which woman and homosexual man form two examples. Does this critical poststructuralist approach provide a method of reading the HAD? If so, how is this epistemology of the male heterosexual body deployed in the legal narratives of the HAD? What are its politico-legal ramifications? Part C, below, attempts to sketch some answers to these crucial questions.

    Identifying the Body in the HAD Narratives: Reading Green

31. The HAD narratives are essentially about legitimating, and (re)producing, lethal/legal violence against gay men. Both at the scene of physical judgment, where the homicidal heterosexual hero enacts a telling lethal vengeance for his prey’s audacious sexual ‘come on’, and at the scene of legal judgment, where the recuperative curial gaze encourages (and begets) ‘a form of self-policing by perpetrators of their own masculine and public sexual identities’[63] a particular understanding of the body is being relied upon, and (re)deployed. That body, the body which in Tomsen’s terms is ‘policed’ by the legal subject qua sexual vigilante, is the Kantian body of the bounded male heterosexual. It is this discursive construction of the body which subtends and conditions the understanding of the legal actors in these narratives, from the aggrieved ‘victim’ of a sexual proposition to the appellate judge whose thinly veiled distaste for homosexual sexual practices pervades his judgment. This particular inscription functions to produce the figure of the homosexual man as both dangerous and worthless; as both monster and outlaw.[64] It is this notion of the body that the HAD relies upon, this notion of the body that sustains the HAD’s incredible violence. Ultimately, as the following sections of this paper will make clear, it is this discursive body that needs to be rewritten if the endemic homophobia-related violence is to be seriously addressed.

32. A close reading of the 1997 High Court decision of Green, which has proven to be the focal point around which legal commentary on the HAD has gravitated, should help to clarify the ways in which the discursive body functions within these narratives, and the particular ends it serves. In Green, the appellant, Malcolm Green, was a close personal friend of the deceased, Don Gillies. Both men lived in the New South Wales country town of Mudgee, Gillies with his mother. On the night of the murder, Gillies had asked Green over for dinner. After having watched television, and consumed a substantial amount of alcohol, Gillies invited Green to stay the night, his mother having travelled to Sydney on family business. According to Green, he had just gone to sleep when Gillies climbed into his bed naked and began caressing him. After repeated attempts to brush Gillies off, Green then resorted to (fatal) physical violence. Green’s record of interview and trial transcript disclose that he repeatedly punched his victim in the face, banged his head against a wall, and stabbed him numerous times with a pair of gourmet chicken spears.[65] His appeal to the New South Wales Court of Criminal Appeal against his murder conviction was unsuccessful but his subsequent appeal to the High Court was narrowly upheld by a 3:2 majority.[66] The High Court ruled that evidence as to the accused’s family history of sexual abuse (memories of his father’s aggressive sexual abuse of his sisters, supposedly evoked by Gillies’ actions) was incorrectly excluded by the trial judge.[67]

33. The idea of the Kantian male heterosexual body underpins the legal narratives of the HAD. Throughout the texts which comprise the HAD, metaphors of sovereignty, integrity and autonomy are used to map the male body. For example, when he turned himself into the local Mudgee police station, Malcolm Green uttered the now infamous words: ‘Yeah, I killed him, but he did worse to me … he tried to root me.’[68] This assertion of bodily integrity as a fate (literally) worse than death is by no means an uncommon theme in many HAD narratives, and nor is it one confined to the killer’s spur-of-the-moment confessions (or rather, justifications). In Murley, for instance, defence counsel’s calibration of bodily wrongs clearly ranked perceived anal penetration as a harm almost commensurate with his client’s response of stabbing his victim seventeen times with a breadknife, hitting him with a chair and slitting his throat.[69] Accordingly, counsel remarked in his address to the jury in that case: ‘[This attack] was not the usual case of an attack where he’s going to be killed; it’s an attack where he’s going to be sodomised, which is almost as grave.’[70] These assertions of bodily integrity form a part of the ensemble of texts which together comprise the narrative of the HAD, but it is perhaps from the judicial texts themselves that inscriptions of the male heterosexual body derive their most potent discursive force.

34. The rhetoric of integrity and autonomy, violation and intrusion, is central to the various judgments in Green. The epistemology of the male heterosexual body as inviolate underpins, and indeed compels, their reasoning. For example, Smart J, of the New South Wales Court of Criminal Appeal, wrote in outraged dissent that ‘some ordinary men’ would regard an advance of the kind which the defendant had to endure in that case as a ‘serious and gross violation of their body and their person’,[71] whilst Brennan CJ in the High Court wrote tellingly of the despicable ‘attempt to violate the sexual integrity of a man.’[72] This particular conception of the male body in Green structures the understanding not only of the majority judges, but of the dissentients as well. While it would be reductive (and unfair) to bracket Kirby J’s measured yet impassioned dissent with the judgments of Smart J and Brennan CJ, his language does disclose some conceptual attachment to the bounded body.[73] For example, he writes of how Don Gillies ‘intruded’ into Malcolm Green’s privacy, and more generally of how advances (be they homosexual or heterosexual) have the potential to ‘intrude on sexual integrity in an objectionable way’.[74] Perhaps Malcolm Green put it best, this time more eloquently, when he said that the events of that night ‘forced [him] to open more than [he] could bear’.[75]

35. The impregnable Kantian body does not just inscribe the male heterosexual as a bounded autonomous being – rather, more importantly, it inscribes the homosexual culprit as a dangerous outlaw. Many commentators on the HAD stress how in both the transcripts and the judgments of these cases the distinction between a sexual advance and a sexual assault is often blurred.[76] Indeed, Nathan Hodge observes that this very blurring is functional to the shifting of blame in these trials.[77] As one can readily see, the ‘real’ crime inheres not in the homicidal retaliation but in the purported act of penetration which it seeks to pre-empt. In this respect, the trope of victim as villain is analogous to that which is often mobilised in female sexual assault cases.[78] Just as in these cases of sexual assault where the deployment of discourses about unruly and illegitimate feminine heterosexuality permits the installation of the masculine aggressor as, alternately, genuine seeker of consent and aggrieved victim of feminine caprice, so too does the deployment of discourses about predatory and lascivious homosexuality facilitate the installation of the homicidal heterosexual as hero (and the homosexual man as villain). Santo de Pasquale writes of how one result of the High Court’s decision in Green is that ‘courts will continue to distinguish a non-violent homosexual advance from a non-violent heterosexual advance’.[79] This is undoubtedly accurate, but it is possible to take his critique one step further and argue that the discursive construction of the male heterosexual body in these narratives renders the very concept of a ‘non-violent homosexual advance’ impossible to imagine.[80] A homosexual advance is by its very penetratory nature an attack upon the sanctified and impenetrable male body. There is no such thing as a ‘non-violent homosexual advance’ within the narratives of the HAD. The discursive construction of the Kantian male body produces the figure of the homosexual man as dangerous predator, and hence fair game for the enraged homophobe.

36. This much is clear from even a cursory reading of the majority High Court judgments in Green. While Priestley JA, writing for the majority of the New South Wales Court of Criminal Appeal, found Don Gillies’ overtures to be ‘amorous, not forceful’, Brennan CJ quickly set out to rewrite the amorous encounter.[81] Priestley JA’s more sensitive treatment of the facts is not allowed to stand for long within the High Court’s legal and epistemological framework of homosexuality as abuse. Gillies’ actions are reinterpreted as ‘persistent’, even ‘terrifying’, and he is triumphantly reinscribed as ‘the sexual aggressor of the appellant’.[82] For his part, McHugh J described Gillies’ behaviour as ‘quite rough and aggressive’.[83] Similarly, in McKinnon, despite there being no evidence of the victim, Maurice, touching the accused’s genitals or even attempting to have sex with him, the defence case was conducted on the premise that what occurred was in actual fact an attack.[84] The defence succeeded in that case (and in many others) for a very simple reason. Because of the inscription of the male heterosexual body as bounded, any advance upon the body, however amorous or gentle, automatically represents an attack.

37. The image of the homosexual man as predatory penetrator commands such discursive force in contemporary legal narratives (and, indeed, in wider social and cultural fora)[85] that it is easily able to trump physiological improbabilities, gloss over the obvious power imbalances in HAD fact scenarios, and, finally, override an accused’s previous admissions. This is why, to echo Dean Kiley, ‘the defensive fictions of apocalyptic poofs work so well’.[86] The Kantian body’s production of the homosexual man as dangerous penetrator functions so effectively that in Green a majority of the High Court apparently accepted the near physical impossibility of Malcolm Green’s account that after he had hit his victim in the head over and over again until, by his own admission, ‘he didn’t look like Don to me’,[87] Don Gillies was seemingly still so persistent and so forceful in his attentions that Green had little choice but to stab him with a pair of chicken spears in order to immobilise him. This is a story oft-repeated in HAD narratives. In the case of R v X, for example, the jury was enjoined to believe (and readily did) that the victim, after having been pushed over, punched a number of times, and hit repeatedly over the head with a door stopper, still needed finishing off with a knife.[88] Similarly, in Murley the accused was able to take the stand and relate the following, apparently without irony:

    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 allright [sic]? I am not like that. Let’s sit down’, but he come towards me again.[89]

38. In all the above cases the murderers were younger, fitter and stronger than their victims. As Kirby J observed in Green, this much is evident simply from the disastrous course that events soon took in that case.[90] His observation applies with equal force to the fact situations of X and Murley. The immense cultural power of the predatory penetrator is hence able to account not only for the near physical impossibility of a half-dead man (libido intact) continuing his unwanted sexual advances in a physically threatening manner, but also to contradict the obvious indication that the heterosexual victims (the real victims in these cases) were far superior physically to their homosexual tormentors. It is at this juncture that the forensic verges on the cinematic, as the defence projects figures of the homosexual villain as phantom, zombie and vampire, in appeal to cultural understandings of homosexuality as a (literally) monstrous aberration. Even when there is a clear statement from the accused, such as there was in Green, that the advance was non-threatening (‘I suppose it was gently’),[91] the figure of the predator ultimately reasserts itself in the minds of the judge and jurors. As Adrian Howe wryly observes of the High Court decision in Green, ‘[r]eality gets turned on its head in the judgments which found for the appellant’.[92]

39. To recap, then, this section has outlined a critical poststructuralist methodology for reading the narratives of the HAD. Instead of assuming the innate presence of the body, or its naturalness, such a methodology starts from the proposition that the body is a function of discourse. Unlike a liberal methodology that takes the body for granted, or which often elides talk of the body in (literally) disembodied and abstract formulations of rights and autonomy, a critical poststructuralist methodology allows one to isolate the ways in which understandings of the body are both socially constructed and a product of ongoing negotiation. Applying this methodology to the HAD, it is argued that the Kantian ‘body bag’ functions as a central element in the discursive matrix of the HAD, by producing the figure of the homosexual man as predatory and dangerous. This serves both to legitimate and to (re)produce homophobia-related violence. Until law reform projects explicitly concern themselves with the issues raised by a corporeal analysis of the HAD, that is, the way in which certain bodies are constructed and produced, they will fail in their objectives. Section IV, below, demonstrates the limitations of a disembodied liberal legalism through a consideration of various law reform proposals.

    The Limitations of the Liberal Law Reform Project

40. Before turning in the final section to consider some of the principles and possibilities of an emergent poetics of law reform, it is first necessary in this section to address some of the extant liberal law reform proposals. The discussion below will demonstrate how, absent a consideration of the constitutive role performed by the law in producing bodies (a lacuna common to all these proposed solutions to the problem of heterosexed violence) these liberal suggestions are destined to fail. They are discussed below in ascending order of epistemological radicalism. Thus, Part A addresses the limitations of a standard ‘Court of Morals’ direction; Part B details the shortcomings of an approach based upon evidentiary reform; Part C discusses the problems inherent within reform of the provocation provisions; whilst, finally, Part D canvasses the abolitionist arguments in the context of the defence of provocation.

    'Court of Morals' Direction

41. In its Final Working Paper of September 1998, the New South Wales Attorney General’s Working Party on the Review of the Homosexual Advance Defence proposes that a new direction be included in the Judges’ Benchbooks as an available standard direction. Such a direction (a ‘Court of Morals’ direction) would be given ‘in any trial of a violent offence in which the unusual sexuality of the victim has been placed before the jury’.[93] The Working Party’s suggested wording is as follows:

    You may conclude that the deceased’s (or alleged victim’s) behaviour and sexual orientation do not accord with those which you regard as morally acceptable. It is therefore important that you remember that this is a court of law and not a court of morals. Prejudice and emotion must have no place in a court of law. Everyone is equal before the law. So, on the question of sexuality, I direct you that a person’s background is not of the slightest relevance. There should be no prejudice against the deceased (or alleged victim) or the accused on the basis of sexual orientation. You should decide the matters on the issues without prejudice and without empathy to the deceased (or alleged victim) or the accused.[94]

    It must be borne in mind that this particular reform suggestion was raised by the Working Party in the context of other more substantive, and admittedly more radical, proposals (discussed below at Part C). However, it is still important to state the limitations of such an approach as it is indicative of the problems attending much liberal reform jurisprudence in this and other contexts. Like the proposals that follow, this proposal (although perhaps to a greater degree) seeks legalistic answers to discursive problems and, in so doing, elides the body.

42. First, in a very practical sense, the success of such a proposal is not easily ascertained given the inviolable secrecy of jury deliberations. Even where a jury returns a guilty verdict in the case of a HAD trial it will never be possible to determine to what extent the judicial warning contributed to that verdict. Secondly, one must question the utility of a single judicial direction given at the conclusion of a trial throughout which prejudicial constructions of homosexuality have been mobilised as a central plank of the defence strategy. One suspects that an isolated appeal to a juror’s (always limited) ability to counter enormously powerful discourses about the male body and deviant sexuality is not likely to be of much practical use. The Working Party’s suggestion in this regard appears to underestimate the power of the discursive constructions of the body and of sexual identity which sustain the HAD. Finally, the ‘Court of Morals’ direction does nothing to address the very constructions of the body which subtend and sustain the HAD’s lethal/legal violence. Rather, it simply tries to expel them from the courtroom. The familiar appeal to a ‘strict and complete legalism’,[95] a juridical paradigm in which the law is hermetically sealed from the pernicious influences of prejudice and emotion, actually functions to elide the constitutive role that the law performs in producing bodies (and, crucially, violence directed towards those bodies). The Working Party’s law reform solution is hence deficient for the very reason that it fails to reform the role the law plays in the maintenance of the HAD – preferring to locate the real problem in the extra-legal prejudices of which bigoted jurors have failed to divest themselves before entering the jury room.

    Evidentiary Reform

43. The second reform proposal focuses not on the conclusion of the criminal trial but, rather, on its conduct. In the course of a recent article in which he deconstructs the courtroom representations of the homosexual victim in three separate post-Green HAD murder trials in New South Wales (R v Hodge, R v Graham, and R v Andrew)[96] Jef Sewell formulates a proposal for reforming the law relating to the HAD. Despite having employed throughout his article a poststructuralist methodology (a critical apparatus which allowed him to identify the various ways in which the respective victims in those trials were discursively positioned as dangerous predators),[97] Sewell’s response to the discursive problem he identifies is in the end result impeccably legalistic: reform of the evidentiary provisions. Or, rather, not so much legislative reform as a more faithful and stringent judicial observance of the extant provisions. Sewell focuses on the relevant New South Wales provisions, contained within the Evidence Act 1995 (NSW) (‘the Act’). However, his comments apply equally to cognate statutory provisions and equivalent common law rules of evidence.

44. Briefly, Sewell contends that the prejudicial constructions he has identified – namely the deployment of the familiar sexual predator/sexual prey binary and the construction of the homosexual man as a dangerous and lascivious sexual fiend – can simply be excluded by the proper operation of the rules relating to hearsay (s 59) and tendency (s 97).[98] Failing this, trial judges should exercise the discretion vested in them by s 135 of the Act to exclude evidence where its ‘probative value is substantially outweighed by the danger that the evidence might’ among other things, be unfairly prejudicial to a party (s 135(a)) or be misleading or confusing (s 135(b)).[99] First, Sewell argues that much evidence relating to the sexual identity of a victim (led to substantiate the accused’s uncorroborated assertion of a homosexual advance) is admitted via exceptions to the hearsay rule which are not enforced properly by judges. Were this rule to be enforced more stringently, the evidence would not be admissible.[100] Secondly, he argues that on a proper construction of s 97, evidence of the victim’s alleged homosexuality should be limited to the particular act in question and that matters such as the accused’s prior sexual history should be ruled inadmissible because they fail to satisfy the ‘significant probative value’ test set out in that section.[101] Finally, Sewell argues that in HAD cases the Crown should request the trial judge to exclude the evidence relating to the victim’s alleged homosexuality under s 135 because of the potential prejudicial and/or misleading effect it may have upon the jury.[102]

45. Sewell contends that the only significant limitation to his project of evidentiary reform is that it ‘necessitates an imposed silence resulting in invisibility for the victim’s sexuality’.[103] This is indeed an important limitation. A more fatal limitation stems from Sewell’s failure to address the constitutive nexus between the law and the body. To suggest that a more rigorous application of formal legal rules will of itself exclude prejudicial constructions of the male homosexual victim does nothing to address the epistemological basis of, or indeed to challenge, these constructions. What is more, it fails to recognise that it is the law itself which is complicit – as a constitutive discourse – in constructing these very discursive representations. A more thoroughgoing critique of the constructions themselves – which is in fact hinted at by the initial trajectory of Sewell’s analysis – would be able to answer the question of why the conflation of sexual acts and sexual identity renders the victim’s sexual history seemingly relevant for the purposes of the Act.[104] It would also be better placed to account for what Sewell contends is the ‘astounding’ admission of hearsay evidence in Hodge,[105] an admission which when viewed through the lens of a powerful discursive understanding of the male body which conditions the judicial actors in these narratives, is perhaps not as astounding as he asserts. Finally, such an analysis might be able to account for why judicial perceptions of what is ‘prejudicial’ within the meaning of s 135 – perceptions which are themselves structured by a belief in the sacrosanct and inviolate nature of the male body – may not yield the results Sewell expects. In short, Sewell’s reform proposals are deficient because they do not engage with the root epistemological causes of the HAD’s lethal/legal violence and they fail to give sufficient weight to the discursive figures of the Kantian body and its monstrous assailant, the predatory homosexual man. The strength of these discursive productions always exceeds the limits of a strict legalism, or perhaps more accurately, their strength informs the very (elusive) practice of a strict legalism.

    Amendment of Provocation Provisions

46. If Sewell is perhaps overly sanguine about the progressive effect procedural reform can achieve in this context, then a similar charge can be levelled at more radical changes to the substantive law of provocation. The first of these suggested changes was made by the New South Wales Attorney General’s Working Party on the Review of the Homosexual Advance Defence:

    6.5 The Working Party has become convinced that such change is necessary. The retention of a partial defence based on a homicidal response to a non-violent homosexual advance cannot, in the opinion of the Working Party, be countenanced any longer. If the High Court [in Green], by a narrow majority, is not prepared to interpret the legislation in question as excluding such a possibility, then the legislation itself should be changed by the NSW Parliament. ...

    6.7 Accordingly, the Working Party recommends the exclusion of a non-violent homosexual advance from forming the basis of the defence of provocation, by way of legislative reform of section 23 of the NSW Crimes Act.[106]

47. A wider reform to the provocation provisions has been suggested by Helen Brown, the effect of which would be to exclude from the ambit of the partial defence not only homophobia-related attacks but other scenarios of gendered violence as well. She writes:

    I propose that provocation be legislatively redrawn so that the defence is explicitly stated to be unavailable to defendants in three specific circumstances:

    (i) Where a defendant alleges provocation where the deceased has left, attempted to leave or threatened to leave an intimate sexual relationship
    (ii) Where a defendant alleges provocation because of suspected, discovered or confessed infidelity
    (iii) Where a defendant alleges provocation due to a non-violent sexual advance.[107]

48. These proposals, along with other proposals which seek to delimit the provocation doctrine without calling for its abolition,[108] are directed towards removing from the scope of provocation those situations where its operation further entrenches disadvantage along the lines of gender and/or sexuality.[109] Whilst this is a laudable objective, the recent history of HAD trial tactics demonstrates that the legal method adopted for excising the HAD from the purview of provocation – the exclusion of a non-violent (homo)sexual advance – is destined not to work.

49. Again, this problem is referrable to the constitutive role performed by law in the discursive construction of the male body. As discussed above in Section III, Part C, the particular understanding of the body underpinning the HAD automatically constitutes any advance upon that body as an attack. Hence, this tactic of exclusion runs both discursive and practical risks, in that not only is a non-violent homosexual advance not within the bounds of legal contemplation, but in typical HAD murder scenarios the victim is not present to contest the allegation of a sexual attack (a situation in which judges have traditionally been, and will no doubt continue to be, loath not to put provocation the jury).[110] The conflation of a sexual advance with a sexual attack was identified as a problem by the Working Party,[111] and yet their response to this very problem was a legalistic solution. This demonstrates the limits of an approach which fails to address the body. Until the discursive construction of the male body in law is fundamentally challenged, mere redrafting of a criminal statute will not result in the abolition of the HAD. Rather, judges and juries will continue to interpret scenarios in line with the predominant corporeal understanding of the inviolate male body and wilfully read a caress as an attack.[112] Again, discourse will transcend, escape or exceed the limits of a strict liberal legalist approach.

    Abolitionist Arguments

50. Finally, there is a burgeoning jurisprudence critical of the defence of provocation itself, arguing, as per Adrian Howe, that it is a ‘profoundly sexed excuse for murder and should be abolished’.[113] Most of this abolitionist jurisprudence has been of a feminist orientation,[114] the central contention of which has been that the theoretical origins of the defence lie in a spurious justification, and (re)production, of masculinist violence. This masculinist violence, whose archetypal expression is a drunken pub brawl gone awry, is rationalised throughout the apologist literature by invoking the need for a ‘concession to human frailty’.[115] Furthermore, feminist critics have pointed to the defence’s frequent modern deployment in scenarios where women have left, or have simply indicated an intention to leave, sexual relationships with jealous and violent men.[116] Recent Australian case law attests to this observation.[117] The defence functions in these situations as a legitimation for sexualised, masculinist violence and the sexual possession and objectification of women. Feminist attempts to appropriate the defence for the ends of women who murder their partners in various situations have resulted in mixed results (both in a theoretical and a practical sense).[118]

51. The cumulative case for the abolition of the defence of provocation is hence a compelling one. The conclusion that the defence is irredeemably gender biased and should be abolished is a conclusion now increasingly arrived at by law reform bodies,[119] and, most recently, by the Tasmanian legislature.[120] The suggestion to abolish the defence of provocation is the most explicitly political, and radical, of all the HAD law reform proposals.[121] Unlike the other proposals, it does attempt to isolate the (gendered) political underpinnings of the legal defence of provocation and is accordingly the one most likely to achieve substantive progress.

52. However, in closing this section on the limitations of liberal law reform proposals, it is important to note that even the abolitionist approach to the issue of the HAD is beset by several difficulties.[122] First, on a practical level, the strategy targets one of the legal vehicles for the HAD. Whilst this may have the effect of limiting its availability, it will not completely eradicate the HAD. As was discussed above in Section II, the HAD is best described not as a discrete defence but rather as evidence which supports the pleading of a recognised, substantive defence such as provocation or self-defence. Consequently, if provocation is abolished then astute defence lawyers will simply plead self-defence in its stead.[123] If the construction of the male heterosexual body as bounded and impermeable is not challenged, and the corresponding equation of a sexual advance with a sexual attack is left undisturbed, then self-defence looms as a probable alternative to the provocation doctrine. All that would be required, in appeal to popular discourses of predatory and monstrous homosexuality, would be to substitute one impassioned defence assertion with another. An affront to one’s bodily honour and dignity morphs easily into a fear for one’s very life. Finally, and this is perhaps the central criticism germane to all the foregoing liberal proposals, the abolitionist strategy is essentially reactionary. This is not to say that it is motivated by political conservatism, for indeed the opposite is true, but rather that it is strategically conservative. What it lacks, along with the other liberal programs, is a positive approach to eradicating the legalised heterosexed violence of the HAD. A corporeal politics can hopefully remedy this liberal shortcoming. As the final section below illustrates, it is through rethinking, rewriting and remetaphorising the legal body that more long-lasting and radical change can be achieved.

    Towards a Poetics of Law Reform

53. Section III adumbrated a critical poststructuralist approach to the body inscribed by legal discourse. Section IV demonstrated the various limits of a liberal legalist reform project, which were, inter alia, a failure to acknowledge the constitutive role performed by the law in inscribing bodies in discourse; a consequent failure to address the epistemological causes of, and to offer solutions for ending, the corporeal violence; and, finally, a resort to legalist solutions to discursive problems of the law’s own making. Crucially, the various liberal legal reform proposals assume the effectiveness of strictly legal solutions to a legal problem always already determined by law as discourse.[124] Thus, this paper has sought to demonstrate not only how the predominant reformist approach to the HAD has failed, and is bound to continue to fail, but has outlined an alternative methodology for reading the narratives of the HAD. How, then, is this alternative methodology to function? What is the praxis of a poststructuralist poetics of law reform? The final discussion is divided into three parts: Part A states the objective of a critical poststructuralist praxis; Part B states some of problems encountered by this approach; and, finally, Part C sketches some methodological principles and practical examples.

    Objective

54. The relation between poststructuralist methodologies and legal reform is almost always figured as an either/or relation.[125] The prospective legal reformer must elect to engage with either poststructuralism or the tools of the modernist legal apparatus (but never both). The deferral of meaning and the (re)constitution of bodies, it is frequently assumed, make somewhat strange bedfellows with the strategies of piecemeal legislative change and targeted litigation. Indeed, Peter Johnston despairs of law reform’s ability to engage meaningfully with the kind of discursive constructions discussed throughout this paper:

    Joe Godfrey [the victim in Murley] is produced as a ‘dirty old man’ (or child molester, or effeminate, or weak or riddled with AIDS), therefore Joe Godfrey is a ‘dirty old man’. No amount of law reform can, of itself, change this.[126]

55. As the preceding section illustrated, law reform ‘as traditionally understood within a liberal frame of reference’[127] has no purchase on the sort of discursive constructions deployed in Murley and other HAD cases. What a poetics of law reform must seek to achieve is to reformulate the project of law reform, to negate or transcend the terms of the binary poststructuralism/law reform. If ‘law reform as traditionally understood within a liberal frame of reference’ has failed to engage with the epistemologies of the body, then henceforth it must be redeployed in order to do so.

56. Simply put, a poetics of law reform must, in the context of the HAD, seek to remetaphorise the legal body. As this paper has argued, an identifiable discursive basis for the lethal/legal violence of the HAD is the particular construction of the male heterosexual body as bounded and impermeable. It is this particular inscription (and the ensuing equation: bodily autonomy, limits, transgression, provocation, murder…) which subtends, supports and sustains the legal narrative. It is therefore incumbent upon reformers to begin to rethink the body as other than closed – as open, contingent, permeable, interconnected, plural – and to reinscribe legal bodies accordingly. As the example of the narratives of the HAD illustrate, a corporeal economy founded upon isolation and limits, precludes connection and encourages violence. A poetics of law reform must enact an opening of the body and of (the body of) law. In place of the closed body must be enacted an ethic of interconnectedness of bodies.

    Difficulties

57. Admittedly, such a methodology is not without its own limits. The first of these is perhaps the very enormity of the task at hand. Indeed, Naffine slightly understates the difficulties encountered to date when she observes that ‘[c]hallenging the bounded rhetoric of law has not been easy’.[128] The project is more accurately described as Herculean in scope – notions of borders structure not only contemporary understandings of bodily sovereignty but, as recent Australian examples aptly demonstrate, modern concepts of national and ethnic sovereignty are also predicated upon borders and boundaries. One need only consult recent debates around ‘queue jumpers’ and ‘illegal immigrants’ to note that corporeally or geo-politically – be it the body of the individual or the body politic – borders and boundaries literally and figuratively set the limits of one’s understanding.

58. However, the concept of the border is not simply a prevalent metaphor in modern Western legal discourse – it is a functionally vital one as well. Jennifer Nedelsky writes of how the idea of the boundary serves as a ‘central metaphor in the legal rhetoric of freedom’.[129] It is through the creation of boundaries between the inside and the outside, through the creation of a ‘constitutive outside’,[130] that the very notions of legal property relations and the fiction of a unitary legal personhood ‘work’. The ubiquity and the functionality of the border metaphor are neatly evidenced in the recent United States Supreme Court decision of Lawrence et al v Texas, a case concerning the constitutionality of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In holding that the statute offended the Due Process Clause of the Fourteenth Amendment of the United States Constitution, Kennedy J (delivering the opinion of the Court), wrote:

    Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person in its spatial and more transcendent dimensions.[131]

59. Even in a case concerning the legal construction of the bounded body by and through State anti-sodomy legislation, and even in a majority opinion striking down the legislation in question, the Supreme Court resorts to its familiar liberal jurisprudence of bodily choice and autonomy, refusing to interrogate the very epistemological grounds upon which the body is constituted as closed. Indeed, as with some of the liberal proposals discussed in the previous section, the (re)deployment of discourses of bodily autonomy only serves to elide the discursive problem.[132] As the above brief discussion indicates, the size and difficulty of the task of resignifying the body in legal discourse cannot be disputed. The power and centrality of bodily autonomy in legal discourse is manifest.

    Principles and Examples

60. How, then, are the limits of the discursive legal body to be broached (or breached)? As the quotation from Cornell cited earlier in this paper illustrates, the power of a socially-constructed norm or value must not lead one to assume that it is incontestable. What is scripted can be rescripted. The entrenched nature of the bounded body in legal discourse does not compel its acceptance. On the contrary, it simply compels a refocusing of one’s efforts. This paper has not argued against legal reform per se. Rather, it has argued that legal reform efforts must be refocused (and perhaps broadened) in order to address the constitutive role that law performs in the inscription of bodies. A renewed poetics of law reform must address the question of the body.

61. This aim can be achieved in a multiplicity of ways. To take the example of the anti-sodomy legislation which framed the constitutional question in Lawrence, a critical poststructuralist approach would advocate the abolition of such statutes. However, the reasoning behind this abolitionist strategy would not be based upon liberal concepts of bodily sovereignty. To do so would be to purchase a short-term legal gain at the cost of reproducing a wider discursive problem. Rather, a critical poststructuralist reasoning would be explicitly directed (in legal and social fora) towards questioning the idea that the male body is something that one breaches, that one invades, that one transgresses. This resignification of the male body as open and interconnected would form the political basis for the statutory law reform.

62. To take another example, current legal inscriptions of the body are heavily influenced by the statutory definition of sexual intercourse (used for the purposes of defining sexual assault crimes).[133] The current definition of sexual intercourse contained within s 61H of the Crimes Act 1900 (NSW) contains the following passage:

    (1) For the purposes of sections 61H-66F, ‘sexual intercourse’ means:

    (a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of a person by:
    (i) any part of the body of another person, or
    (j) any object manipulated by another person,

    except where the penetration is carried out for proper medical purposes.

    This definition of sexual intercourse is predicated upon the idea of penetration, which is itself predicated upon (and sustains) a particular understanding of the body. A poststructuralist poetics of law reform would advocate the widening of the definition of sexual intercourse,[134] contesting the notion that intercourse between bodies must necessarily be scripted as penetration. As in the example above, statutory law reform would in this instance explicitly concern itself with a revision of metaphors of the body.

63. Furthermore, in litigation such as the Lawrence case, and in cases such as the House of Lords decision of Brown, a poststructuralist poetics of law reform would advocate the framing of litigation around political questions of the body. Targeted political litigation has achieved some success in certain contexts. For example, the Women’s Litigation Education and Action Fund has been influential in bringing before the Canadian Courts wider political issues of gender (in)equality.[135] This is not to assert that litigation is necessarily always an open and receptive forum for overt political and discursive resistance, for indeed the institutional reality of legal positivism means that such radicalism will frequently fall on deaf judicial ears.[136] Neither is it to assert that such a strategy is always strictly advisable in terms of individual trial tactics. Rather, it is simply to assert that in some cases a poststructuralist poetics of law reform would advocate contesting legal constructions of the body and that this may form an effective part of a wider legal discursive strategy.

64. A poststructuralist poetics of law reform would also seek to engage in other discourses whose effects are felt in legal discourse. Attention must be paid to the representational politics of medical discourse, for the body is produced in medical texts and practices in specific ways and these are reproduced in intersection with legal discourse. In addition, a poststructuralist poetics of law reform would celebrate the production of dissident conceptions of the body in other areas of cultural production, for these too impact upon the law. This would no doubt entail an engagement with the legality and politics of contemporary censorship regimes.

65. It can be seen from the above brief sketch that the struggle to reinscribe the legal body through an ethic of interconnectedness and contingency embroils the prospective legal reformer in a fight on many different fronts. The task of resignifying the male body in legal discourse is a necessarily dispersed one, for there are so many interconnecting legal and social sites where the body is (re)produced. The above strategies are in a sense quite random and unconnected. They may in certain situations overlap and coincide, whilst in others they may be counterposed. The strategies listed here are also intended neither to be prescriptive nor exhaustive. They are intended only to indicate the general principles that law reform must be directed towards the discursive function of the law in the area of the body and that regard must always be had towards interrogating these notions of the body and the violence that they (re)produce and sustain. The poststructuralist poetic of law reform must continually readdress the ways in which the body is (re)produced and (re)deployed in legal narratives. Only then will a more fundamental and effective law reform be possible.

    Conclusion

66. This paper has argued that the male heterosexual body is inscribed by and within the narratives of the law in a particular way – as a bounded and impermeable unit – and that this inscription underpins the legal violence of the HAD. As has been demonstrated, this inscription of the body permits and gives rise to a number of other discursive figures, such as the homosexual as predatory monster and outlaw. Whilst there have been several liberal efforts to reform the law relating to the HAD, either through the mechanism of statutory reform or through other avenues, the shortfall of all these approaches has been their failure to address the law’s participation in the construction of the very body which it seeks (in any given context) to protect, to regulate, to coerce, or to punish. Hence, it is not law reform per se that is deficient, rather it is the extant proposals’ elision of the body that is the problem. Adopting the insights of poststructuralist theory, it is submitted that a more effective methodology is to engage with (and challenge) the discursive practices of the law in the area of the body.

67. Consequently, this paper advocates a rescripting of the body, a poststructuralist poetics of law reform that would (through practices of legislative reform, intervention in litigation, and engagement in wider discourses such as medicine and dissident cultural production) seek to broaden current understandings of the body and produce an ethic of interconnectedness and contingency. Like the examples enumerated above, this paper has been a step towards (re)theorising dominant legal conceptions of the body. Challenging attitudes about the body sustained in and by the operation of law as discourse is, it is argued, a more long-lasting (though more protracted and difficult) response to the endemic (hetero)sexualised legal violence of modern Australian life.