Is this right or wrong?

[Fat Red]

Watching Law and Order last night reminded me of a case I studied in Crim at uni. Not sure that I've got the facts completely right, but close enough with the important one.

Fact scenario: 27 year old man and 20 year old man, well known to each other, no bad blood between them.

27 year old comes on to 20 year old. Not in a way that threatened violence. Hits on him for sex. (20 year old had no idea 27 year old was gay/bi/whatever).

According to 20-year-old, he panics, picks up handy blunt instrument and hits 27 year old with it several times.

20 Year old was acquitted of murder under a 'gay panic defence'.

Right or wrong?

 

[Shinboners]

Murder implies pre-meditation and intent, and so, if it is a spur of the moment action, then how can it be murder?

Wouldn't the correct charge have been manslaughter, where pre-meditation and intent does not need to be proven, but recklessness and/or negligence is sufficient?





......or maybe we should just blame John Howard.

 

[Fat Red]

Murder doesn't have to be premeditated. There does have to be intent, but it can be formed on the spur of the moment.

If you walked past and i saw you and thought, "that's that prick Shinboners, I want to kill him" and shot you straightaway, that would be murder, even though it wasn't premeditated.

The technical legal defence here was "provocation", ie that the defendant was provoked beyond what a normal person could endure.

 

[Shinboners]

There was a case a few years ago where on one of those Jerry Springer type shows (can't remember the name of it) where the topic was "Your crushes revealed". Bloke A comes out and the host asks him about who he thinks has a crush on him.....of course, he's shocked when he finds out that the person that has the crush is another bloke. A few days later, Bloke A kills the other guy.

I can't remember the result of the case, but the key difference is that on the TV show, the killing happened straight away (or I'm assuming it did as I didn't watch the show), but in real life, there was that few days difference. But would the defence of "provocation beyond what a normal person could endure" still hold despite the time difference?

 

[elt]

Surely that provocation could build up over time Shinners? A serial wife basher who eventually is killed by his wife as an example (putting aside self defence for the moment).

I would have thought that in Fat Red's initial example it would depend on the circumstances. That said, I'd find it hard to believe that a simple proposition for sex from anyone would be "provocation beyond what a normal person could endure".

 

[Fat Red]

Originally posted by Shinboners
There was a case a few years ago where on one of those Jerry Springer type shows (can't remember the name of it) where the topic was "Your crushes revealed". Bloke A comes out and the host asks him about who he thinks has a crush on him.....of course, he's shocked when he finds out that the person that has the crush is another bloke. A few days later, Bloke A kills the other guy.

I can't remember the result of the case, but the key difference is that on the TV show, the killing happened straight away (or I'm assuming it did as I didn't watch the show), but in real life, there was that few days difference. But would the defence of "provocation beyond what a normal person could endure" still hold despite the time difference?

Don't you mean the other way round?

In answer to your question, generally no.

However some battered women's defences have succeeded based on provocation, however this is because the juries have let them off, not because it's legally correct.

 

[CJH]

In your "Shooting Shinners" example, there was premeditation, just that it was for a very short amount of time!

In the intial example, with the heightened awareness and acceptance of gays these days, can 'gay panic' really be considered unreasonable? It logically can't be that different from a man walking up to a woman (or vice versa) with a proposition of sex.

I don't think it is a valid defence but am not sure on how it can be tested for validity.

 

[Dave]

Originally posted by CJH
In the intial example, with the heightened awareness and acceptance of gays these days, can 'gay panic' really be considered unreasonable? It logically can't be that different from a man walking up to a woman (or vice versa) with a proposition of sex.

Logical or not there are still people to whom a gay proposition would be horrifying.

I struggle to see how any proposition (gay or straight) could be seen as a justification for killing.

 

[vanders]

Originally posted by Fat Red


20 Year old was acquitted of murder under a 'gay panic defence'.

Your kidding me arent you? murder is murder, no matter why.
Saying 'gay panic defence' is just like saying your drunk, its no excuse for killing someone....sheesh!!

 

[The Hitman]

Originally posted by CJH
In your "Shooting Shinners" example, there was premeditation, just that it was for a very short amount of time!

In the intial example, with the heightened awareness and acceptance of gays these days, can 'gay panic' really be considered unreasonable? It logically can't be that different from a man walking up to a woman (or vice versa) with a proposition of sex.

I don't think it is a valid defence but am not sure on how it can be tested for validity.

Agree 100% with everything you said there.

The Hitman

 

[ah_19]

if some guy came onto you what would YOU do?
id find the nearest baseball bat
either that or spend the next few hrs throwing up about it

 

[Santos L Helper]

Originally posted by ah_19
if some guy came onto you what would YOU do?
id find the nearest baseball bat
either that or spend the next few hrs throwing up about it

Intelligent reply from the peanut gallery.

Personally I'd be flattered, then inform the person that I don't go in for those back door shenanigans.

 

[Commissioner X]

It may interest you to know Fat Red, that the High Court (or at least one judge- no guessing who???) have discussed a scenario similar to this.

See: Green v The Queen (1997) 191 CLR 334.

The 36 year-old male victim made "sexual advances" on the 22 year-old male accused. The accused punched the deceased about 35 times, banged his face against the wall and stabbed him with a pair of scissors about 10 times.

The accused argued provocation asserting that he was particularly sensitive to matters of sexual abuse. The trial judge directed the jury that this evidence was not relevant to the issue of provocation and the accused was convicted of murder.

The NSW Court of Appeal held that there had not been a miscarriage of justice, despite the Crown admitting that the trial judge had erred in law in determining that the evidence was not admissable.

The High Court ruled 3-2 that there had been a miscarriage of justice and ordered a retrial. Kirby J, in dissent argued that a jury would still have convicted, because the "ordinary person" would not react in such a way to a GAY sexual advance (suprise, suprise!!).

Kirby was the only judge to address this specific issue. He was basically making a political statement, as the issue of sexuality was never raised by the appealants. I have no problem with a gay-panic defence in regard to provocation. Of course, if a court were to deliver such a verdict there would no doubt be uproar from the gay lobby and absurd claims of a "homophobes" charter, leading to possible legislative amendment- complicating an already complicated section of the law.

 

[Bloodstained Angel]

well golly gee

If I had reacted like the young man in the hypothetical or like ah-19 (one these days ah-19 you really should explain to the rest of us exactly why you are soooo full of fear, hate and loathing when it comes to gays - you are just so sh't-scared of e'em aren't you ?) every time I had to deal with an adavance from a queer guy, cripes I would be locked up for life as a serial murderer !

Gays are everywhere, and yes, sometimes they like to hit on others for a good time (just like we do with women - wow funny that )

Get over it I say - whats wrong with a polite but firm "I'm not that kinda guy"

Absolutely no excuse for that kinda behaviour

"Gay Panic Defense" ?

oh what - you mean brutal murder isn't so bad because the victim was a queer who hit on the perpetrator ?

So people who brutally attack and bludgeon to death somebody just because they are queer and asked you out then thats not so bad ?

That just says that murdering a homo is not as bad as mudering a straight person.

go figure that one out ?

 

[Curly5]

Well said, BSA.

I've given up boggling at the quirks of the US legal system. For all its faults ours at least has some semblance of common sense.