Criminal Law Consolidation (Provocation) Amendment Bill
02/12/2015
The Hon. K.L. VINCENT: I wish to thank the Hon. Ms Franks for her tenacious commitment to ensuring that the provocation defence, known as the ‘gay panic’, is forever struck out of our statutes. In this most auspicious year, when we mark the 40th anniversary of the decriminalisation of homosexuality in the state of South Australia, its remnant laws and attitudes such as this will drag us down and hold us back from achieving further and full equality. South Australia was once proudly at the helm of social law reform, yet there remains work to do. Human rights are often hard-fought and hard-won battles, if not always hard-fought and hard-won battles.
The gay panic defence has, I understand, been removed in most other states. I understand the Legislative Review Committee has been looking at the issues around it here. I understand that there are some complexities around the legal uses of provocation defences in different situations. Let me say categorically that a person making a nonviolent approach to another person of the same gender does not equate to giving that person the right to hurt or end the life of that person in any way, shape or form.
I have spoken about this before in this place, supporting previous iterations of the bill presented by the Hon. Ms Franks and I do not want to rehash all of that. I will try to make the point again if I can recall what it was, but I think what I said last time went something like this: as a vegetarian I do not eat meat and I do not particularly agree with people who do eat meat. However, if I am at a dinner party and somebody offers me a meat lovers pizza, can I then harm that person claiming ‘pepperoni panic’? I think not. As long as the approach is nonviolent, I have no right to violently assert my beliefs toward that person just because I do not appreciate the approach.
So, the law around gay panic specifically as it stands is at best homophobic and at worst negligent of human rights and the right to freedom from harm. It is homophobic in that it applies only to a gay man who makes a nonviolent romantic or sexual advance toward another man who then murders the gay man. The nature of someone being able to rely on the law to condone an act of violence, particularly an act resulting in the death of another, is abhorrent to me and to Dignity for Disability, as it should be to all members in this chamber, to all members of South Australian society and all human beings.
On that note, I do not want to go too far away from the issue at hand but, since we are talking about people being able to rely on the law, or at least the attitudes of society, to face a lesser charge for a violent act, then I feel it would be negligent of me not to mention that people with disabilities are also far too frequently killed—of course, one would be too many—with a lesser conviction or at the very least a lesser reaction from society. For example, in a situation where the person who committed the murder was the family carer or family supporter of that person with a disability, that family carer was under significant strain and should be shown compassion on those grounds.
Dignity for Disability in the past moved a motion after the case of the Eitzen family in the Adelaide Hills, where a mother ended the life of her son due to the strain of being his family carer, because of the lack of disability support that he received. We came out calling for mental health checks for family carers and supporters of people with disabilities, but let me say that we also came out, and continue to come out, saying that the solution is to adequately support people with disabilities to live as independently and in as dignified and autonomous a manner as possible, so that family carers do not go through that strain which leads to them making that unconscionable decision.
Members may also recall another case from interstate, I think a couple of years ago now—I forget the specifics of it. Basically, a man in a rural town interstate shot his wife, who had an acquired brain injury, and their three children. Much of the media coverage of that case talked about what an upstanding member of the community this man had been, tirelessly caring for his wife post her brain injury, which she, I understand, acquired in a car accident.
Well, let me just say, Mr President, that that man had the option to leave that marriage, he had the option to leave that relationship if the strain was too great and, even if you accept that he was forced to kill his wife because of the brain injury—which I do not think any of us here should or would—he certainly was in no way forced to kill their children, who of course bore no responsibility for his wife’s injury and the strain that the resulting lack of support that had caused him.
In a similar vein to this motion I am also very concerned about society’s attitudes to the violence, harm and murder that people with disabilities can face, and I will continue to strike a balance where people with disabilities are supported to live autonomous, dignified, supported lives, ordinary lives of their choosing, so that the strain and perceived burden that they place on society as a result of that support does not lead to this abhorrent situation occurring, and certainly does not lead to a lesser reaction in the community than we would accept for the violent treatment of any other being. With those few words, I certainly support the Hon. Ms Franks’ motion.
