Tuesday, January 17, 2012

What homosexual provocation defences say about the status of women

There has been (and in a few places such as Queensland, still is) a legal defence in cases of murder that provides mitigation in cases of violent reaction to homosexual advances. It is known under various titles (such as the “guardsman defence” in the UK, the “gay panic defence” in the UK or New Zealand, the “homosexual advance defence” in Australia) and is a form of provocation defence. The claim is that the defendant (or defendants) was so panicked by homosexual advances that their judgement was (violently) impaired.

There are many things one could say about this legal manoeuvre, but an Op.Ed. piece puts a key aspect of this legal defense in stark perspective:
Would it be acceptable for women who are "gently touched" in a bar to stab the heterosexual culprit repeatedly to death? The short answer is no.
Women are expected to deal with unwanted sexual advances from men in a restrained and civilized fashion.

Men, on the other hand—in the logic of this defense—do not have the same expectation put upon them. On the contrary, being the object of male sexual advances is such a dire threat that it can mitigate murder: even when—as is generally so in such cases—the “provoked” person is physically stronger or more capable than the person allegedly making the sexual advance.

It is a fairly stark case of male privilege. Despite generally being larger and physically stronger than women, under this legal defence, men dealing with male sexual advances do not have the same expectation of restraint as women do. This lowered expectation flows from a privileged perspective: being subject to male sexual advances is somehow much more potentially frightening for men than for women.

While I dislike the term ‘heteronormative', in this case, male sexual desire directed to other men is treated as so out of the ordinary, to be so threateningly different from everyday expectations, that responding with murderous violence is given (some) legal credence.

Again and again, the issue for same-sex attracted people is being defined out of the “properly” human. Homosexual provocation defences do this quite explicitly. Homoerotic desire being so utterly defined out of the permissible, its absolute repression has been taken to frame expectations; to be something so extraordinary that normal social restraints are seriously weakened when it does appear.

Men are much more likely to think homosexuality is immoral than women: one Australian survey (pdf) found that only 27% of women thought homosexuality is immoral, compared to 43% of men. Male sexual desire being felt to be much more threatening to other men than it is to women may have something to do with this.

The legal defence of provocation inherently operates differently for men and women: both because men and women tend to respond differently to anger (men tend to have a much quicker adrenalin rush than women) and (a not unrelated factor in framing likely responses) men tend to be physically stronger than women. It is simply generally easier for men to kill in immediate anger. Neither provides justification, however.

If the simple human politics of homosexual provocation defences to not bear examination, the gender politics are hardly less contemptible. Men are somehow “permitted” to be far more “threatened” in a situation where they are much less physically disadvantaged than women typically are in analogous situations. If courts are going to give credence to such vicious nonsense, then legislatures need to step in and assert much more civilised expectations which do not so privilege male fears, nor define citizens out of the “properly” human.


  1. When I found out this "defense" still existed in Australia, I extrapolated that I, as a lesbian, could use the same defense for killing a heterosexual man. After all, ewwwwwww.