Juries in murder trials may still be able take provocation into account when reaching their verdicts despite 'gay panic defence,' being struck from the Crimes Act, according to the country's leading glbti support and counselling service. Outline has commented following yesterday's jury verdict that 17-year-old Willie Ahsee was guilty of manslaughter, not murder which carries a harsher penalty, after killing gay South Auckland police jailer Denis Philips. The fatal stabbing followed what the Crown alleged was a sexual encounter gone wrong and the defence said were sexual advances the teenager rejected. Ahsee reacted aggressively and homophobically in court when it was suggested by the Crown that he had had any sexual contact with Phillips. Before the repeal of gay panic defence in November 2009 juries had been legally able to reflect a homophobic view when assessing how much an accused murderer was 'understandably' reacting to a sexual advance from a homosexual man. It was a loophole which had been repeatedly and successfully used by defence lawyers to lessen the verdicts against the killers of gay men. The change in the law was intended to ensure that juries should no longer choose the lesser finding of manslaughter due to such perceived provocation. Instead, a judge now takes such circumstances into account more objectively when passing sentence. Homosexual panic defence was used successfully in the trial of Hungarian tourist Ferdinand Ambach for the killing of elderly gay man Ron Brown. The Ahsee trial was the first high profile case to be tried since the 'gay panic defence' was axed. "Although the defence was trying to say this is not about being gay," says Outline GM Vaughan Meneses, "there was a lot of talk about predatory behaviour that just sets the jury up to empathise by viewing the deadly attack through the eyes of a homophobic teenager and to start thinking along the lines of gay panic defence." Meneses is worried that the Ahsee case is "just another example of a gay man being killed in his own home and receiving a manslaughter verdict. "It is entirely probable that although the gay panic defence was got rid of juries will still intuitively take into account any personal distaste for homosexuality when assessing the impact of such an encounter on a defendant," Meneses says. Meneses says he remains concerned that juries will continue to be more lenient on the defendant when assessing the consequences of a homosexual encounter going wrong or gay advance compared to the same outcome in a heterosexual context. "Unless juries are made aware of this we could well see a de-facto gay panic defence continue to operate," he says. GayNZ.com also approached the Aotearoa Rainbow Alliance, an emerging national advocacy organisation, for their view of the Ahsee trial outcome but they were unable to provide a spokesperson.
Credit: GayNZ.com Daily News staff
First published: Thursday, 20th October 2011 - 2:37pm