Provocation and the homosexual advance defense in Australia and the United States: law out of step with community values

Abstract

This article considers the use of the homosexual advance defence by an accused charged with a crime, in circumstances where the accused allegedly committed the violence against a person who made an unwanted homosexual advance to them. Accuseds commonly use this defence to lessen the seriousness of their behaviour, often reducing a murder charge to manslaughter, based on provocation. It is argued that in some cases this reflects a homophobic attitude, reflected by some quoted comments from judges in some of these cases. It is concerning that some courts have appeared to at least partly condone an extremely violent response to an unwanted homosexual advance. These decisions may reflect some deep-seated biases against and antipathy towards homosexual behaviour.