LGBTI and Discrimination in the Criminal Justice System

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The perception that Australia has fallen behind on lesbian, gay, bisexual, transgender and intersex issues grew exponentially in May when Ireland altered its constitutional definition of marriage to include same-sex couples, and now that the US has also legalised same-sex marriage across the nation.

But marriage is only one area where LGBTI people face unequal treatment before the law.

In Australia, the ACT was the first place to decriminalise homosexuality (1973), but it took an appeal to the UN before the last state, Tasmania, followed suit in 1997.

Meanwhile, it’s only in the past decade that a raft of 85 federal reforms has seen same-sex couples achieve legal parity in employment, de facto status, immigration and aged care.

Even so, exemptions for religious organisations to discriminate against LGBTI people for employment purposes remain in most states.

A damning report highlighting the issues

Despite these changes, a recent report by the Human Rights Commission (HRC) has found the majority of LGBTI people have been attacked, bullied or harassed.

An online survey by the HRC in 2014 found 71.79 per cent of respondents had experienced violence, harassment or bullying because of their sexual orientation, gender identity or intersex status.

On June 10, 2015, Human Rights Commissioner Tim Wilson, who coordinated the survey, told The Age: “I’ve met with people directly that have actually faced physical violence, or been shot, or had serious harm inflicted on them by people.”

Wilson is a supporter of marriage equality for same-sex couples, saying it would “establish a very clear sign to the entire Australian community that people shouldn’t be discriminated against based on their sexual orientation or gender identity.”

In 2014, ahead of the survey, he released a background paper outlining the reasons for the HRC’s interest in LGBTI issues and citing the following remedies as examples of the Commonwealth’s response to discrimination:

  • The introduction of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) extending federal anti-discrimination protection coverage to SOGII.
  • The introduction of the Australian Government Guidelines on Sex and Gender Recognition (2013).
  • The establishment of the Federal Safe Schools Coalition (2014).

However, Wilson said unreconstructed areas remain, including “discriminatory recognition of relationships before the law” and “inconsistent protection in some state and territory anti-discrimination laws on the basis of sexual orientation, sex and/or gender identity status.”

Provocation defence

An oft-cited example of inequality for LGBTI people in the criminal justice system is the provocation defence known as the ‘gay panic’ defence.

This can be used to reduce a charge from murder to manslaughter where an attacker has claimed unwanted sexual advances from the victim and was “deprived by the provocation of the power of self-control” (Criminal Code Act 1899 (Qld) s 268).

While the provocation defence has been repealed in Tasmania, Western Australia and Victoria, and clauses excluding non-violent homosexual advances inserted in the ACT, Northern Territory and NSW, the states of Queensland and South Australia still retain it.

A bill to exclude the non-violent homosexual advance defence from the South Australian statute was introduced earlier this year, but Kellie Toole, lecturer at the University of Adelaide’s Law School, wrote in The Advertiser on June 1, 2015 that the provocation defence should be removed entirely:

“We need to follow Tasmania, Victoria, Western Australia and New Zealand and abolish provocation completely so that a person who intentionally kills, unless they are acting in self-defence, will be convicted of murder and be unable to blame the words or actions of their victims.”

Toole’s opinion touches on the reluctance of governments to completely outlaw the defence of provocation given that it is used in cases where a victim in an abusive domestic situation, often a female, kills their partner.

However, writing in the University of Western Sydney Law Review in 2010, Andrew Hemming argued that the main beneficiaries of the defence are “heterosexual men.”

Gay hate crimes revisited

Scott Johnson’s body was found at the bottom of a sea cliff in Manly in December 1988. Declared a suicide, the case was recently re-opened by NSW Police due to evidence suggesting the 27-year-old’s death may have been a gay hate crime.

The area where his body was found was a ‘beat’, where men who wanted sex with other men could meet up. A second inquest in 2012 returned an open verdict, but in April 2015 it was announced a third inquest would reinvestigate the case.

The Johnson family’s lawyer, John Agius SC, claims a private investigation resulted in 50 people of interest and five gangs known to be attacking gay men in the area at the time.

It is likely other cases will be reinvestigated as new evidence comes to light, evidence at first withheld because of the stigma associated with homosexuality.

A GLLO-ing report: Police Gay & Lesbian Liaison Officers

The relationship between the LGBTI community and police in Australia has gone from active entrapment and arrest in the pre-decriminalisation era, to confrontation as LGBTI people became politicised in the sixties and seventies, to some growth in trust and cooperation in more recent times.

In 1995, the non-reporting of crimes against LGBTI people because of the discrimination victims felt they would receive resulted in the establishment of the Police Gay & Lesbian Liaison Officer (GLLO) program in NSW. The following year NSW Police marched for the first time in the Sydney Gay & Lesbian Mardi Gras.

Other states followed suit, and while liaison officers are certainly not present at most police stations, Tasmania Police, for example, advises LGBTI people who are reporting a crime that “Tasmania Police LGBTI Liaison Officers can assist by providing discreet, non-judgemental advice and assistance in the reporting of crimes.”

Changing perceptions

During the 1980s the stigma of HIV/AIDS, at the time considered by many to be a gay disease, was a blow to the movements of the sixties and seventies that had advanced the legal status of LGBTI people towards equality.

An “us and them” mentality tainted perceptions of LGBTI people, perceptions that manifest in increased verbal and physical attacks on LGBTI people.

Today, the amendment of the ‘gay panic’ provocation defence in Queensland and SA, where it applies to non-violent homosexual advances, is being closely watched by the LGBTI community and its advocates. Along with marriage equality, the provocation defence has become a litmus test for the law’s treatment of LGBTI Australians.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

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