The outdated defence of non-violence homosexual advance: Australian provocation reform and lessons for English homicide law

Abstract

The focus of this article is the nature of the non-violent homosexual advance within the partial defences to murder. Tracing the use of this type of incident as provocative conduct in recent years alongside recent reforms introduced in two Australian state jurisdictions, this article argues that there is no justification for such use of the defences. It explores two Australian models of reform: the exclusionary reform approach and the outright abolition of use of the non-violent homosexual advance to build a defence. It examines the limits of the Coroners and Justice Act 2009 and explores opportunities for law reform in England and Wales. The authors suggest a two-limbed role reversal test to effectively minimise the misuse of the defence.