It's very unlikely the gay panic defence could be successfully used in South Australia, but parliament should still legislate to remove it, experts say.
Under the partial defence, people accused of murder can have their charges downgraded to manslaughter if they can prove their victim made a non-violent gay advance.
In the wake of Queensland scrapping the defence on Tuesday, focus has switched to South Australia, the only jurisdiction that hasn't passed laws ruling out the defence.
Premier Jay Weatherill committed to abolishing the gay panic defence in 2016, but is waiting on a review of provocation laws before taking action. He now believes the defence may not even exist in the state.
"Our advice is that the gay panic defence does not exist, but to avoid doubt we will complete our review," Weatherill told BuzzFeed News.
BuzzFeed News understands Weatherill's advice is related to the South Australian murder trial of Michael Lindsay, in which the gay panic defence was raised, but ultimately unsuccessful.
The existence of the defence is complicated as it is part of common law, meaning it derived not from legislation, but from precedents set over time by judicial rulings.
Sarah Moulds, a senior project officer at the South Australian Law Reform Institute (SALRI), is working on the provocation review, which is in the final stage of editing.
She told BuzzFeed News that it is very unlikely someone would be able to run a successful provocation defence based solely on gay panic.
"The person who last tried to run gay panic [as a defence] is in jail for murder. It’s not like we’ve just had a successful gay panic defence raised – we’ve had an unsuccessful one. That sends a very strong message to any defence counsel wanting to run that," she said.
"From that perspective, I can understand how [the government] might take that position [that it does not exist]. But for us... part of our mandate is to ensure the law is clear and where possible consistent with other jurisdictions in Australia."
"Our view is that it’s now incumbent upon parliament to clarify the state of gay panic in South Australia."
Weatherill said it is still his goal to ensure the "so-called defence" cannot be used.
"The SALRI final report is likely to be highly influential on our decision," he said.
Moulds said the report will recommend that the gay panic defence be removed.
The report has been delayed for two reasons: the Lindsay case, which ran over several years and had another appeal dismissed in December; and the far reaching implications of provocation reform in other parts of the law – for instance, family violence and mandatory sentencing.
Moulds said one complicating factor is that the defence can be used in family violence cases by both the abuser and the victim.
"The woman who has been abused for seven years and she kills him while he is asleep, that is one scenario. That’s quite rare.
"What’s more common is men relying on provocation, say, in a situation where they come home and find their partner with somebody else, or their partner has told them they are going to leave them."
Moulds said that the latter situation is still relatively rare, and the threshold of being provoked to the extent of losing all control still needs to be met: "What we’ve tried to say is that this is an area in need of reform generally."
Weatherill said a "holistic approach" was needed in reforming provocation laws.
"It is very important no negative consequences arise from amendments, [meaning] women in domestic violence situations could no longer access this component of the law."
Lane Sainty is a reporter for BuzzFeed News and is based in Sydney, Australia.
Contact Lane Sainty at email@example.com.
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