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Abolish ‘Gay Panic’





‘Gay Panic’ and the Removal of Homophobic Laws


‘Gay Panic’ and ‘Homosexual Advance Defence’ (HAD) principles continue to be applied as legally acceptable defences for homophobic acts and violent hate-related crimes against the GLBTIQ community, with perpetrators generally receiving reduced sentences when these laws are invoked … only their removal will ensure fair and just sentencing and ensure the safety of the GLBTI community.


Murder is Murder

The 2008 decision by NSW Supreme Court Justice David Kirby to hand down a reduced charge of manslaughter to the teenager who perpetrated the hate-related murder against Gerard Fleming at a toilet block in Narrabeen, is cause for great concern for the GLBTIQ community.

On June 16, 2007, Fleming met a young man at a park in Narrabeen and they shared beers while sheltering from the rain inside the toilet block. According to the young man’s statement, Fleming went to the toilet cubicle and emerged with his trousers down, and made moves to hug the young man. He also joked he wanted to give his new friend a “wedgie.”

The 16 year old youth was carrying a knife and ‘panicked’… he stabbed Fleming twice – to the stomach and heart, then disposed of his knife and ran away from the scene. Gerard Fleming was found bleeding after calling for help at a nearby bus shelter, and an ambulance was called. Fleming was able to give details of the incident and the name of his attacker to an ambulance paramedic, and died shortly after as a result of his wounds.

Gerard Fleming has been described as a ‘gentle, childlike man’, who was living with Aspergers Syndrome. Fleming made an unwanted pass at the young man who then stabbed him, ‘inflicting a fatal wound to the heart’. You need to ask why was this young man carrying a knife, and why didn’t he just walk away… ?


The murder was clearly a homophobic act, and the judgment by Justice David Kirby is a rehash of the largely discredited ‘Homosexual Advance Defence’ (HAD), in which non-violent sexual advance is customarily assumed as aggression, thereby provoking a murderous response.

The NSW Attorney General John Hatzistergos has effectively declined to appeal the sentence, and has instead defended this homophobic law.

The Attorney Generals also comments that the murder of Gerard Fleming was not homosexual panic or a ‘sexuality related hate-crime’, but ‘excessive self-defence’, which sends a clear message that it is acceptable and reasonable to perpetrate violence and hate-crimes – even murder, against members of the GLBTIQ community.

The transfer of HAD theory from ‘provocation’ to ‘excessive self-defence’ is not the solution, and shows we have a long way to go to remove bigotry in the justice system.


Abolition of ‘Gay Panic’ Defences and Overhaul of NSW Crimes Act to Remove Laws that Encourage Homophobia and Hate-Related Crime

We seek legislative change that will abolish these homophobic laws, and call for an overhaul of the NSW Crimes Act to remove bigotry in the justice system.

These senseless hate-related crimes occur as a result of the shame and stigma attached to men who frequent ‘cruising’ areas, and in some circumstances, internalised self-hatred by perpetrators who struggle to understand their own homosexual tendencies.

By removing discriminatory laws which allow reduced sentences, the justice system should be sending a clear message that these acts of homophobia will not be tolerated.

Unfortunately, the Attorney General has further reinforced this bigotry and discrimination within the justice system, and may further encourage homophobia and hate-related crimes. This homophobic decision is a setback for the struggle for ‘equality’ and undermines the safety of members of the GLBTI Community.

We demand the abolition of section 23 and section 421 of the NSW Crimes Act which allows ‘homosexual advance defense’ (HAD) and ‘excessive self-defence’ to form the basis of a defense of provocation, and the removal of laws that discriminate against men at ‘cruising’ areas that contribute towards increased stigma within the GLBTI and beat community.


‘Homosexual Advance Defence’ (HAD) and ‘Gay Panic’ Eradication Proposals

The Removal of Homophobic Laws

1) Abolition of ‘Homosexual Advance’ and ‘Gay Panic’ Principles;

2) Amending Section 23 of the NSW Crimes Act to exclude non-violent homosexual advance;

3) Amending Section 421 of the NSW Crimes Act to exclude non-violent homosexual advance;

4)  Mandating Jury Warnings for Hate-related Crimes, and Sentencing Enhancements; and

5) Enhancing existing NSW Police resources to address hate-related crime toward the GLBTIQ community.


By developing new policy and procedures to address homophobia and harassment within NSW Police, and campaigning for legislative change to protect the community from the enforcement of discriminatory laws, will ensure that the GLBTI community is safe wherever they may be.

Our deepest sympathies and best wishes go out to Gerard’s family and friends.