What's with the Homosexual Advance Defence?

In 1994 Australia was given its first movie about “a cock in a frock on a rock”. Although The Adventures of Priscilla, Queen of the Desert was praised for showcasing some of Australia’s most stunning landscapes and costume design, the film also depicts an ugly, shameful side of the Australian character we would probably rather deny.

I’m thinking of the scene where flamboyant drag queen Felicia Jollygoodfellow makes a flirtatious advance towards a beer-swilling, flannelet-wearing bloke from rural Australia. Initially flattered, the man becomes enraged when he discovers his suitor is a man in a dress. He launches into a violent frenzy and brutally assaults Felicia. All the while his Aussie mates stand by, cheering the violence on.

Let’s imagine this scene was real and Felicia died from the injuries inflicted. Would our courts be any more reproving of the offender’s actions than his ocker mates were?

The Homosexual Advance Defence, or “the HAD” as it is more commonly known, is a legal defence that surfaced in Australian criminal jurisdictions in the early 1990s. The basic premise is that if a homosexual man makes an unwanted sexual advance towards a straight man, he is “provoking” that man.

So, should a straight man then murder a homosexual man who has made a pass at him, the HAD can be engaged to have the charges reduced from murder to manslaughter.

Essentially a hollow legal tactic, the HAD has been used to excuse homophobic violence and shift responsibility off the perpetrator and onto the victim who may have done little more than touch the offender’s knee. Yes, it is important that people have the right to defend themselves against unwanted sexual advances — within reason. And this is precisely why we have self-defence laws.
But the difference between self-defence laws and the HAD are significant.

Self-defence laws state that whenever possible, a victim should retreat and avoid conflict. If there is no other option the victim is entitled to use force, but “no more force than is necessary”. Violently assaulting someone because they touched your knee or used a dodgy pick-up line is not considered an act of self-defence.

More importantly, self-defence laws are designed to protect the rights of victims who have responded with force to threats of physical or sexual violence, not so-called threats posed by a person’s sexual orientation or lifestyle.

And this is the problem with the HAD. It confuses an actual sexual threat with the 'threat' posed by a person's sexuality.

As a woman I’m also curious to know why our courts have no problem recognising an unwanted sexual advance made towards a straight man as inappropriate, uncomfortable and threatening. However, if that same heterosexual man was to make an equally unwanted sexual advance towards a woman, not only does the legal system often have difficulty recognising that advance as threatening and inappropriate, but in many circumstances the courts actually turn the problem back on the woman, demanding to know what she was wearing and whether or not she was “asking for it”.

Why do our courts get that sexual advances can be intimidating, threatening and abusive, but only if the victim happens to be a man?

The answer, I suspect, is simple. Many of our laws have been written by heterosexual men. These men understand that they would not enjoy being harassed or objectified, but the very notion that a woman might consider their own advances offensive or objectifying would have been virtually unfathomable. In fact until recently the notion that a woman could be sexually harassed was an alien concept.

While attitudes towards homophobic violence do seem to be changing, our laws are still in need of reform. Just as we would not excuse the actions of a woman who killed a man for looking at her the wrong way, a heterosexual man should not be allowed to hide behind HAD as a defence for homophobic violence.