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19 Sydney L. Rev. 336 (1997)
More Folk Provoke their Own Demise (Homophobic Violence and Sexed Excuses - Rejoining the Provocation Law Debate, Courtesy of the Homosexual Advance Defence)

handle is hein.journals/sydney19 and id is 346 raw text is: More Folk Provoke Their Own Demise
(Homophobic Violence and Sexed Excuses -
Rejoining the Provocation Law Debate, Courtesy
of the Homosexual Advance Defence)
ADRIAN HOWE*
[Tihe homosexual-advance defence is a misguided application of provocation
theory and a judicial institutionalisation of homophobia.I
Remember, the truth's irrelevant. The fact that most of the cases associated with
homosexual panic are in reality gaybashing in that long productive Australian
tradition: that's besides the point. What we have to ask is why the defensive
fictions of 'apocalyptic poofs' work so well.2
If every woman killed every man who made unwanted physical advances toward
them, there would be a lot of dead men around.
1.    Introduction
Exculpatory defences, so-called because they negative or mitigate criminal
culpability, tend to provoke comment. Some, for example, self-defence or duress,
confer immunity from penal liability; others, notably provocation, change the
nature of that liability, from say, a murder to a manslaughter conviction.4 No
wonder that they incite debate. The provoking gesture can be a case which
occasions outrage or, perhaps, a case which appears to signal a shift in judicial
understandings of one of the defences. Or it can be a perception, based on a reading
of a class of cases, that an exculpatory defence is operating in a biased way. Recent
critical commentaries on the question of gender bias in the provocation defence are
a case in point. Is the defence available to women on an equal footing with men?
Does it operate as a partial excuse for men who kill their wives? Have the dead
women provoked their own demise?5 Indeed, could it be said that in all cases
where provocation is raised successfully, the victims have provoked their own
* Adrian Howe is Senior Lecturer in Law and Legal Studies, La Trobe University. She thanks
Wayne Morgan, Peter Johnston and Sam Fradd for their kind assistance. She also thanks
Joanna Howse and the Sydney Law Review for their generous support. Finally, thanks to the
anonymous referee who was so enthusiastic about this project.
1 Mison, R, Homophobia in Manslaughter: The Homosexual Advance as Insufficient
Provocation (1992) 80 CalifLR 133 at 134.
2 Kiley, D, I Panicked and Hit Him With a Brick (1994) 1 Law/Text/Culture 81 at 89.
3 Adams, K, quoted in Comstock, G, Dismantling the Homosexual Panic Defence (1992)2 Law
and Sexuality 81 at 100.
4 See the discussion in Colvin, E, Exculpatory Defences in Criminal Law (1990) 10 OxfJLeg
Stud 381. Provocation is not clearly marked as an exculpatory defence in Colvin's discussion,
but it appears to lie on the cusp of exculpatory/non-exculpatory defences.
5 Edwards, S, Provoking Their Own Demise: From Common Assault to Homicide in Hanmer,
J, and Maynard, M (eds), Women, Violence and Social Control (1987) at 159.

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