The Homosexual Advance Defence and the Law/Body Nexus: Towards a Poetics of Law Reform

Abstract

For some years now, the familiar story of a (homicidal) heterosexual hero overpowered by a predatory ‘poofter’ has played to critical acclaim in Australian criminal courtrooms. The familiar narrative referred to is the Homosexual Advance Defence (‘the HAD’), and this paper is a contribution towards the growing body of legal theory dedicated to its critique (and eradication). The author argues that whilst mainstream critiques of the HAD remain grounded in the conceptual framework of liberal legalism, such contributions will fail to address the underlying epistemological and structural causes of the HAD. The paper goes on to suggest that the insights of poststructuralist theory offer a more effective methodology is to engage with the discursive practices of the law in the area of the body. Challenging attitudes about the body sustained in and by the operation of law as discourse is a more long-lasting (though more protracted and difficult) response to the endemic (hetero)sexualised legal violence of modern Australian life.

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