E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW
ISSN 1321-8247
Volume 11 Number 1 (March 2004)
Copyright E Law and author
ftp://law.murdoch.edu.au/pub/elaw-issues/v11n1/golder111.txt
http://www.murdoch.edu.au/elaw/issues/v11n1/golder111.html
________________________________________________________________________

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

Ben Golder

Contents

   * Introduction
   * Definitions, History, Context
        o Homosexual Panic Defence
        o Homosexual Advance Defence
   * The Discursive Construction of the Male Heterosexual Body in the HAD
        o The Discursive Body
        o The Logic of the Bounded Male Heterosexual Body
        o Identifying the Body in the HAD Narratives: Reading Green
   * The Limitations of the Liberal Law Reform Project
        o 'Court of Morals' Direction
        o Evidentiary Reform
        o Amendment of Provocation Provisions
        o Abolitionist Arguments
   * Towards a Poetics of Law Reform
        o Objective
        o Difficulties
        o Principles and Examples
   * Conclusion
   * Notes

     We must conceive discourse as a violence that we do to things,
     or, at all events, as a practice we impose upon them.[1]

     Introduction

  1. 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. Judges and juries alike
     have listened with unquestioning awe to tales of bodily impeachment
     and male honour, as defence barristers have constructed this primal,
     almost cinematic, narrative of Australian heterosexual masculinity
     under attack. 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).

  2. However, there is a need to expand upon the conceptual approaches
     adopted by some of the reform-oriented legal commentary on the HAD. It
     is argued 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 and merely (re)produce a myopic legal reformism.
     Prior reform jurisprudence in this vein has misconstrued the relation
     between the body and the law, and consequently, has elided the
     constitutive role that the former performs in inscribing the latter.
     As a corrective, this paper argues that a more productive way to
     approach the issue of the HAD is to identify the discursive
     construction of the male heterosexual body within the legal narratives
     of the HAD. By embedding the HAD within a corporeal economy, and by
     tracing the particular inscriptions of the body upon which it relies
     and through whose reproduction it is sustained, a clearer picture of
     the HAD’s operation will emerge. This methodology implies, and indeed
     necessitates, a much more radical reformist praxis of rewriting legal
     metaphors of the body. Simply put, discursive/corporeal problems call
     for discursive/corporeal solutions – embodiment informing legal
     discourse.

  3. In the discussion that follows, Section II introduces and defines the
     concept of the HAD as well as a related legal concept, the Homosexual
     Panic Defence (‘the HPD’). Section III addresses the question of the
     inscription of the body in legal discourse, discussing critical
     poststructuralist approaches to the body and the specific ways in
     which the HAD encodes the male heterosexual body. It is contended that
     the male heterosexual body is constructed in the narratives of the HAD
     as bounded and impermeable and that this construction is central to
     the functioning of the HAD. Section IV discusses some of the major law
     reform proposals in the context of the HAD, and demonstrates how they
     are practically limited by their tactical failure to investigate the
     epistemological and corporeal basis of the HAD. Finally, it is argued
     in Section V that the most effective approach to the HAD is to enact a
     poetics of law reform which, following the poststructuralist insights
     discussed in Section III, seeks to reinscribe the body in legal
     discourse. What is thus proposed is not an abjuring of law reform but,
     rather, a law reform agenda (re)focused upon the body. As the
     following discussion will demonstrate, this more radical and
     fundamental approach to the HAD is a broader step in the struggle to
     eradicate the endemic (hetero)sexualised legal violence in
     contemporary Australian life.[2]

     Definitions, History, Context

     Homosexual Panic Defence

  4. It is perhaps sensible to commence by defining the HAD in
     contradistinction to a very similar term, the HPD. These terms are
     frequently used interchangeably in the literature on
     homophobia-related violence and criminal defences.[3] However,
     although they refer to similar scenarios, there are still a number of
     salient historical, jurisprudential, medico-legal and discursive
     distinctions between the two concepts. It is hence important to avoid
     collapsing the epistemological distinction between the HAD and the
     HPD. Observing the distinction is not simply a question of historical
     and jurisprudential accuracy, but rather, more broadly, it is likely
     that normative strategies for abolition or reform of the two
     categories will differ relevantly in their scope, targets, emphasis
     and application.

  5. To begin with, the appearance of the HPD predates that of the HAD.[4]
     The former term was originally employed by American academics and
     activists to refer to US cases in which a defendant would plead
     insanity, or diminished responsibility, in answer to the charge of
     murdering a gay male victim, where that victim had made an unsolicited
     sexual advance upon the defendant. The plea rested on the rather
     dubious clinical basis of a psychological disorder entitled ‘acute
     homosexual panic’, a condition first identified by the psychiatrist
     Edward J Kempf in 1920.[5] Kempf developed his theory whilst working
     in a government mental institution during and in the years following
     World War I, studying the deleterious effects on returned soldiers and
     sailors of having been ‘grouped together in same-sex environments for
     prolonged periods during the War’.[6] According to the psychological
     literature, the standard script is that the subject who suffers from
     the disorder is in actual fact a ‘latent homosexual’ who is terrified
     of his attraction to other men yet is similarly terrified of
     heterosexuality. In Kempf’s case histories, the disorder of ‘acute
     homosexual panic’ does not lead to the sort of brutal violence which
     typifies contemporary legal narratives, but rather the subject suffers
     from feelings of disgust and self-loathing more likely to manifest in
     self-harm and suicide than inter-personal violence.[7]

  6. The HPD as a legal concept was developed from the ‘acute homosexual
     panic’ disorder by criminal defence attorneys anxious to fashion a
     forensic justification for their clients’ extreme homophobia-related
     violence. Thus was Kempf’s specious psychological creation ingeniously
     pressed into service in the criminal courtroom as an exculpatory
     strategy. It is important to stress that the HPD is not actually, and
     never was, a defence in its own right. It is in this respect similar
     to the HAD. Rather, the defence tactic functions by leading evidence
     of a defendant’s ‘latent homosexuality’ in support of a recognised
     substantive defence such as insanity, diminished responsibility or
     (depending upon the jurisdiction) substantial impairment.[8] To
     simplify somewhat, the legal claim is that ‘a person with latent
     homosexual tendencies will have an extreme and uncontrollably violent
     reaction when confronted with a homosexual proposition’,[9] leading to
     a momentary (yet irrevocably lethal) loss of self-control. Assuming
     that the legal criteria for the relevant defence are established,
     then, depending on the plea, this loss of self-control serves either
     to absolve the defendant from criminal liability, or to mitigate that
     liability.[10]

  7. Evidently, the abject psychological narrative of Kempf’s original
     disorder (in which the subject suffers from a debilitating
     self-loathing) and the violent legal script of the HPD (in which the
     subject spontaneously becomes murderously violent) are somewhat
     divergent. Indeed, this is one of the more limited criticisms made of
     the HPD by some legal commentators. For example, Kara S Suffredini
     concludes that:

  8. In sum, the relationship of the HPD to the psychiatric disorder is
     tenuous at best. The various points of departure between the legal
     defense and the clinical disorder, when coupled with the legal
     system’s failure to demand a consistent definition of the defense
     across cases, suggests that the HPD is barely rooted, if at all, in
     the bona fide homosexual panic disorder.[11]

  9. This criticism echoes the earlier comments of Gary David Comstock, who
     argues that ‘legal defenses have misappropriated the disorder’.[12]
     Thus, as far as critics such as Suffredini and Comstock are concerned,
     the two central problems with the HPD are: first, its disarticulation
     from the psychological disorder upon which its claims to forensic
     validity are predicated;[13] and secondly, its (corresponding)
     potential for misuse by legal practitioners.[14] According to this
     theory, a valid psychological affliction has been perverted to cynical
     forensic ends by unscrupulous defence attorneys, a process in which
     judges and juries (imbued with societal homophobia in equal measure)
     are themselves complicit.[15] Suffredini even goes so far as to
     advocate ‘conforming the HPD to the disorder’ in order to circumscribe
     its effect and confine its application to those genuinely suffering
     from ‘acute homosexual panic’.[16] Indeed, Suffredini asserts that
     ‘[t]hese problems belie a troubling lack of emphasis in the legal
     system on detecting and only defending bona fide instances of
     homosexual panic disorder’.[17]

 10. The explanatory potential of the above argument is seriously limited
     by its uncritical acceptance of the psychological disorder’s validity.
     Its consequent inability, or reluctance, to interrogate the
     philosophical basis upon which the supposed ‘acute homosexual panic’
     disorder rests, serves to foreclose the possibility of a more
     wide-ranging, structural criticism of the HPD.[18] The ensemble of
     medical, psychological and legal discourses which together constitute
     the HPD are in fact susceptible of a much more systematic
     epistemological critique than the above approaches of Comstock and
     Suffredini admit. Indeed, Adrian Howe signals the more radical
     possibilities of such a critique when she observes that:

 11. From a Foucauldian perspective, what is required for an analysis of
     HPD and HAD is not proof of ‘latent homosexuality’, but rather a
     thorough genealogical excavation of the controlling discourses which
     constitute homosexuality as a disorder and make such defences
     possible.[19]

 12. This angle of critique recognises that the ‘acute homosexual panic’
     disorder and its legal incarnation, the HPD, are classic examples of
     the patriarchal, heterosexist cultural logic according to which
     non-heterosexual (and hence non-procreative, wasteful and aberrant)
     desires are stigmatised, medicalised and pathologised.[20] Such
     categorisations are by no means creatures of the distant past. Indeed,
     it was only as recently as 1973 that the American Psychiatric
     Association officially ceased to regard homosexuality as a mental
     illness.[21] The imbrication of (homo)sexuality and pathology is a
     cultural process which compels critical attention.

 13. The kinds of questions that must be asked of the HPD are the ones that
     Howe foreshadows in the quotation extracted above. What are the
     discourses that permit and enable the construction of homosexuality as
     ‘disease’ and ‘disorder’? How do what Foucault calls the ‘psy’
     professions interact, or collude, with legal approaches to
     sexuality?[22] Upon what notions of the body are these discourses
     dependent for their understandings of sexuality? Consequently, what
     deconstructive strategies are available for resisting these
     discourses? It is this critical poststructuralist methodology which
     this paper seeks to apply to the more recent phenomenon of the HAD.
     Through a critical reading of the HAD, this paper aims to situate the
     legal construct within a general economy of the body and, by so doing,
     to trace the epistemological and discursive foundations upon which the
     legal phenomenon rests. Whereas a serious study of the HPD demands an
     interrogation of contemporary psychological discourses, a study such
     as this one compels an interrogation of legal constructions of the
     body. Before turning to legal constructions of the body, however, Part
     B outlines a brief legal and historical sketch of the HAD.

     Homosexual Advance Defence

 14. Before embarking on a critical reading of the HAD, it is important –
     as with the HPD – to clarify some legal and historical terms. As the
     above discussion demonstrates, the HPD is largely confined in its
     operation to the respective criminal jurisdictions of the American
     states.[23] The Australian literature on homophobia-related violence
     and criminal defences does not refer to any reported instance of the
     HPD in an Australian criminal jurisdiction. A survey of Australian
     homicide cases reveals a similar result. Rather, it is the HAD which
     is the defence of choice in Australian criminal jurisdictions for
     defendants charged with the murder of a gay man.[24] Ian Leader-Elliot
     hypothesizes that this discrepancy between the American and Australian
     jurisdictions is in part attributable to ‘the American tendency to
     overcome deficiencies in the law of self defence and provocation by
     invoking mental illness or incapacity’.[25] The modern Australian male
     evidently does not feel constrained to pay lip service to the
     discourses of pathology or medicalisation in the criminal courtroom.
     As Anthony Bendall and Tim Leach observe, there is a marked difference
     between the terminology of ‘homosexual panic’ – which implies ‘real
     irrationality or a pathological defect on the part of the accused’ –
     and ‘a common, “garden variety” straight masculinity [with its]
     reliance on codes of “male honour”’.[26] Since the early 1990s, when
     the HAD first emerged in Australia, defence barristers and their
     clients have placed their faith squarely in the latter concept.
     Indeed, the HAD, as a rich strand of contemporary Australian criticism
     has argued, is a strategy heavily reliant for its cultural force upon
     patterns and understandings of male honour.[27]

 15. In short, the HAD is a legal tactic – like the HPD – whereby evidence
     of an unwanted sexual advance made by a gay victim towards the accused
     is led in support of a recognised, substantive defence.[28] In this
     scenario, the evidence is supportive of either self-defence or
     provocation. This marks another notable difference between the HPD and
     the HAD, as with the former the ‘blame’ is located in the
     pathologically confused sexuality of the accused, whilst with the
     latter the ‘blame’ inheres in the (homo)sexually threatening or
     provocative conduct of the victim.[29] Thus, depending upon the way in
     which it is strategically deployed, the HAD can act either as a plea
     in exculpation (self-defence) or mitigation (provocation) of lethal
     homophobia-related violence. However, the HAD is used most often, and
     is most often successful, in the context of a provocation plea.[30]
     Accordingly, this paper, like the majority of the critical commentary
     on the topic of the HAD, focuses on case law where evidence of an
     unwanted sexual advance is led in support of a plea of provocation to
     the charge of murder.[31]

 16. As indicated above, the HAD first surfaced in Australian criminal
     jurisdictions in the early 1990s. The 1992 Victorian case of R v
     Murley has the dubious honour of being the first recorded instance of
     the HAD in Australia.[32] This case was followed not long after by the
     New South Wales cases of R v McKinnon and R v Bonner (in 1993 and
     1995, respectively).[33] These trials, and the disturbing legal trends
     which they disclosed, drew the ire of the metropolitan gay media and,
     to a lesser extent, the attention of the mainstream press (which was
     predictably not as vehement in its condemnation of the new legal
     phenomenon).[34] The response of the activist and academic communities
     to the HAD’s increasing deployment in Australian criminal courtrooms
     was swift. In April 1994 the Gay and Lesbian Rights Lobby, the Lesbian
     and Gay Anti-Violence Project and the Lesbian and Gay Legal Rights
     Service convened a public forum on the HAD.[35] Similarly, academic
     writings condemning the new legal strategy and placing it within the
     context of societal homophobia and escalating violence towards gays
     and lesbians in Australia soon began to enter public discourse.[36]

 17. To some extent, and as a result of the abovementioned pressure, the
     question of reforming the HAD also entered official government
     discourse. Indeed, it was partly in response to this (localised)
     community outrage that the New South Wales Attorney General’s
     Department convened a Working Party to discuss law reform proposals
     relating to the HAD.[37] The HAD has also been the subject of a New
     South Wales Parliamentary Library Briefing Paper,[38] and has been
     considered, if only marginally, in the context of a New South Wales
     Law Reform Commission Report and a Model Criminal Code Officers’
     Committee Discussion Paper.[39] This (somewhat gestural) institutional
     recognition has been supplemented, extended and problematised by a
     body of much more radical activist and academic criticism.

 18. Predictably, the High Court of Australia – generally impervious to the
     kind of radical, or even reformist, legal scholarship adverted to
     above – has not joined in the growing chorus of dissent. Rather, it
     has chosen to lend its support to this insidious jurisprudence of
     sexual hatred. In 1997 it handed down its much-anticipated decision in
     Green v The Queen.[40] This now (in)famous decision, as the
     overwhelming majority of legal commentators argue, had the effect of
     entrenching the HAD in Australian criminal jurisprudence.[41] Graeme
     Coss, editor of the Criminal Law Journal, echoed the sentiments of
     many academic critics when he wrote at the time that ‘this is the most
     disappointing High Court [majority] judgment I have read’.[42] Green
     is discussed in further detail in Section III, Part C, below.

 19. Since Green, the deployment of the HAD in criminal courtrooms has
     continued unabated.[43] Furthermore, it has done so unencumbered by
     any of the mooted legislative reforms suggested by the pre-Green law
     reform bodies.[44] The remainder of this paper is directed towards
     remedying this significant omission and suggesting fresh ways to
     combat the HAD. As a first step, the next section outlines a critical
     poststructuralist methodology which will be of central use in decoding
     the HAD narratives and in formulating more radical, and hopefully more
     effective, law reform proposals.

     The Discursive Construction of the Male Heterosexual Body in the HAD

 20. Whilst Section II, above, mapped the respective legal, political and
     historical trajectories of the HPD and the HAD, it is now important to
     return to the question of a critical poststructuralist approach to the
     HAD. Accordingly, the following section attempts to adumbrate a
     poststructuralist approach to the body as a critical entry point to
     the HAD. The scope of this paper precludes a fuller examination of
     poststructuralist thought and the significant impact which its
     insights have had upon contemporary jurisprudence generally. However,
     for the purposes of theorising the epistemological underpinnings of
     the HAD and the way in which the male heterosexual body is constructed
     in its legal narratives, the following discussion will hopefully prove
     useful. Part A outlines some general principles of a critical
     poststructuralist approach to the body; Part B draws on the work of
     Ngaire Naffine and other theorists of the body in liberal legal
     discourse; and, finally, Part C demonstrates how the legal narratives
     of the HAD encode the male heterosexual body and, more importantly,
     how this sustains the justification of (hetero)sexualised violence.

     The Discursive Body

 21. Orthodox Western scientific theory on the human body, and indeed
     general ‘common sense’ understandings of the body (which to a large
     extent are informed by the corpus of scientific knowledge), hold that
     the body is a discrete biological entity which can be studied in an
     objective manner. Zillah Eisenstein neatly summarises this predominant
     point of view:

          The scientific method with its standpoint of objectivity
          establishes the study of biology as the science of the body.
          According to it, the only thing more natural than nature is
          the body. The body connotes a definite, concrete, finite
          thing. Its meaning and contours are given and static. The
          body stands outside society, history, and language.[45]

     In this scientific/‘common sense’ understanding of the body, the body
     is the basic biological building block of human society. Knowledge
     about the body can be derived from the body through studying its form
     and processes. The body is hence presented as an object for scientific
     study. It is indubitably and unalterably biological.

 22. Poststructuralist understandings of the body are epistemologically
     counterposed to this dominant scientific perspective.[46] Against the
     scientific understanding of the body as biological entity,
     poststructuralist theory contends that the body is actually a cultural
     artefact. According to this view, the body does not stand outside the
     influences of society, history, language, and indeed science, but is
     in fact invested by them with meaning. The body derives its meaning
     from discourse, or, to be more precise, one derives one’s
     understanding of the body by and through discourse.[47] This process
     is commonly figured in tropes of textuality. The biological body is
     hence written on, scripted, encoded, inscribed, etc. by discourse. The
     body itself can be read as a palimpsest,[48] upon whose biologically
     blank slate the manifold and contesting influences of society,
     history, language and scientific discourses come to bear. The
     following quotation from Elizabeth Grosz provides an interesting
     counterpoint to the scientific definition of the body extracted above:

          [T]he body is literally written on, inscribed by desire and
          signification, at the anatomical, physiological, and
          neurological levels. The body is in no sense naturally or
          innately physical, sexual or sexed. It is indeterminate and
          indeterminable outside its social constitution as a body of
          a particular type … [T]he body … is an open-ended pliable
          set of significations, capable of being re-written,
          reconstituted in quite other terms than those which mark it,
          and consequently capable of reinscribing the forms of sexed
          identity and physical subjectivity at work today.[49]

 23. Two aspects of Grosz’s understanding of the body are of immediate
     relevance. First, to accept the poststructuralist proposition that the
     body is, at least on the level of (re)signification, a function of
     discourse is not to assert that the body is somehow insubstantial, or,
     worse, does not really exist. This all-too-common Bowdlerisation (or,
     perhaps more accurately, this Baudrillardisation)[50] of
     poststructuralist insights both simplifies and generalises what is
     actually a relatively modest claim. Put simply, the argument contends
     that one does not, or rather one cannot, experience one’s body
     otherwise than through discourse – there is no pure or
     extra-discursive body that is not always already constituted by
     discourse. Ernesto Laclau and Chantal Mouffe expand upon this point:

          The fact that every object is constituted as an object of
          discourse has nothing to do with whether there is a world
          external to thought, or with the realism/idealism
          opposition. An earthquake or the falling of a brick is an
          event that certainly exists, in the sense that it occurs
          here and now, independent of my will. But whether their
          specificity as objects is constructed in terms of ‘natural
          phenomena’ or ‘expressions of the wrath of God’, depends
          upon the structuring of a discursive field. What is denied
          is not that such objects exist externally to thought, but
          the rather different assertion that they could constitute
          themselves as objects outside any discursive condition of
          emergence.[51]

 24. Secondly, and this point resonates with the previous one, the
     discursive body is at once both intensely real and ineluctably
     contingent. This proposition need not imply a form of cognitive
     dissonance once one acknowledges that mainstream, or hegemonic,
     discursive practices are powerful in spite of, or perhaps by very
     reason of, their constructedness. For example, to state that the
     concept of race is a discursive function is by no means to derogate
     from the powerful (and manifest) observation that, especially given
     its contemporary linkage and imbrication in Australian public
     discourse with notions of crime and deviance,[52] race produces very
     real material, institutional and corporeal effects. Rather, it is
     simply to observe that racial divisions are functions of discourse
     mapped onto bodies, that they are experienced differently, and that
     there is nothing biologically immutable about the way in which they
     function. They can hence, at the expense of great counter-discursive
     effort, be remapped.

 25. Such a stance has very tangible ramifications for the kind of legal
     reformist praxis one adopts. As later sections will demonstrate, this
     paper’s adoption of a poststructuralist frame of reference leads to
     the position that the most effective method of dealing with the legal
     violence of the HAD is to accept the contingency of the body and to
     attempt to rewrite it. What is written can always be rewritten. As
     Drucilla Cornell, in dialogue with Catherine MacKinnon asks:

          To argue that feminine desire loses its power of negativity
          because it is socially constructed from the male point of
          view implicitly asserts that a social construct can be
          turned into a fortress sturdy enough to fend off the
          transformations inherent in the metaphoricity of language in
          which it is built. Why bolster the fortress by asserting its
          unshakability?[53]

     The part below, deals with the specific types of body constructed in
     and by law.

     The Logic of the Bounded Male Heterosexual Body

 26. If the discourses of science and law do not merely reflect a body, but
     perform a constitutive role in defining, inscribing and constructing
     the limits and the contours of that body, then what exactly does the
     body of law look like?[54]

 27. The work of Ngaire Naffine, at the juncture of law, feminist theory
     and the body, provides a starting point from which to begin to answer
     the above question.[55] In the course of a discussion of the law of
     sexual assault and its differential construction of gendered bodies,
     Naffine performs a detailed reading of the work of liberal
     philosophers, Immanuel Kant and John Stuart Mill. She argues that the
     body contemplated by liberal political theory – and indeed that
     contemplated by contemporary legal discourse – is bounded, autonomous
     and impermeable. The physical limits of this body are stable and
     impenetrable, and these bodily limits (the epidermal border) inform
     legal notions of consent, harm and assault.[56] It seems almost trite
     to say, of course, that this body is inescapably gendered, for the
     body imagined by Kant and Mill, and the body reproduced in the texts
     and practices of legal discourse (its judgments, statutes,
     commentaries, procedures, postures, gestures, and so forth) is a male
     body. Naffine writes:

          In short, what I think we can discover at the heart of the
          law of human contact is a quite particular idea of a
          bounded, embodied subject, which bears a strong kinship to
          Kantian man. The person presupposed by the law of assault is
          a discrete, distinct, volitional subject for whom the skin
          of his body is considered to represent a boundary from other
          distinct subjects … People are essentially bounded and
          separate, they come in closed body bags, and it is vital
          that one person not interfere with the body bag of another
          unless there is a positive agreement to make contact.[57]

 28. The legal construction of the body as discrete, bounded, impermeable
     and male relies for its conceptual force upon the simultaneous
     constitution of a domain of non-bodies, or, to paraphrase Judith
     Butler, bodies that do not matter.[58] First among these putative
     non-bodies in this imagined corporeal economy is the female body. The
     female body is characterised by its apertures, its permeability and
     its susceptibility of penetration. Woman in this schema is an
     incomplete and lesser version of man:

          The implication (which is certainly never drawn out in his
          [Kant’s] thesis), is that women in such circumstances
          somehow have a reduced status as persons because their body
          bag, their skin, has been punctured and permeated.[59]

 29. Cornell observes that ‘[t]he man is the one who penetrates, not the
     one who is penetrated. That’s what … makes him a man’.[60] Under
     conditions of compulsory and hegemonic heterosexuality, of course, the
     second way that one can be ‘not-man’, is to permit oneself to be
     penetrated. Hence, the second ‘non-body’ produced by the inscription
     of the body of law as impermeably male, is the homosexual man.
     Evidently, the inscription of law’s body is not simply gendered, but
     heterosexed as well. The (supposed or imputed) sexual practices of the
     homosexual man challenge the integrity of this paradigmatic body of
     law,[61] for the much-vaunted boundaries of the male heterosexual body
     are breached in the act of penetration. Naffine relates the
     problematic of this liminal and dangerous homosexuality when she
     writes that, in the legal regime of the bounded male heterosexual
     body, ‘loving penetration of a man by a man is highly corrosive to
     bodily sovereignty’.[62]

 30. To summarise, then, a critical poststructuralist approach to the HAD
     asserts that the body is a discursive production, not a biological
     fait accompli. As Naffine’s feminist analysis illustrates, the
     dominant construction of the body in contemporary legal discourse
     (which still locates itself firmly within the Kantian tradition) is a
     gendered and heterosexed one: the bounded male heterosexual body. This
     bodily economy produces, and is dependent upon for its very
     maintenance, an abjected domain of non-bodies, of which woman and
     homosexual man form two examples. Does this critical poststructuralist
     approach provide a method of reading the HAD? If so, how is this
     epistemology of the male heterosexual body deployed in the legal
     narratives of the HAD? What are its politico-legal ramifications? Part
     C, below, attempts to sketch some answers to these crucial questions.

     Identifying the Body in the HAD Narratives: Reading Green

 31. The HAD narratives are essentially about legitimating, and
     (re)producing, lethal/legal violence against gay men. Both at the
     scene of physical judgment, where the homicidal heterosexual hero
     enacts a telling lethal vengeance for his prey’s audacious sexual
     ‘come on’, and at the scene of legal judgment, where the recuperative
     curial gaze encourages (and begets) ‘a form of self-policing by
     perpetrators of their own masculine and public sexual identities’[63]
     a particular understanding of the body is being relied upon, and
     (re)deployed. That body, the body which in Tomsen’s terms is ‘policed’
     by the legal subject qua sexual vigilante, is the Kantian body of the
     bounded male heterosexual. It is this discursive construction of the
     body which subtends and conditions the understanding of the legal
     actors in these narratives, from the aggrieved ‘victim’ of a sexual
     proposition to the appellate judge whose thinly veiled distaste for
     homosexual sexual practices pervades his judgment. This particular
     inscription functions to produce the figure of the homosexual man as
     both dangerous and worthless; as both monster and outlaw.[64] It is
     this notion of the body that the HAD relies upon, this notion of the
     body that sustains the HAD’s incredible violence. Ultimately, as the
     following sections of this paper will make clear, it is this
     discursive body that needs to be rewritten if the endemic
     homophobia-related violence is to be seriously addressed.

 32. A close reading of the 1997 High Court decision of Green, which has
     proven to be the focal point around which legal commentary on the HAD
     has gravitated, should help to clarify the ways in which the
     discursive body functions within these narratives, and the particular
     ends it serves. In Green, the appellant, Malcolm Green, was a close
     personal friend of the deceased, Don Gillies. Both men lived in the
     New South Wales country town of Mudgee, Gillies with his mother. On
     the night of the murder, Gillies had asked Green over for dinner.
     After having watched television, and consumed a substantial amount of
     alcohol, Gillies invited Green to stay the night, his mother having
     travelled to Sydney on family business. According to Green, he had
     just gone to sleep when Gillies climbed into his bed naked and began
     caressing him. After repeated attempts to brush Gillies off, Green
     then resorted to (fatal) physical violence. Green’s record of
     interview and trial transcript disclose that he repeatedly punched his
     victim in the face, banged his head against a wall, and stabbed him
     numerous times with a pair of gourmet chicken spears.[65] His appeal
     to the New South Wales Court of Criminal Appeal against his murder
     conviction was unsuccessful but his subsequent appeal to the High
     Court was narrowly upheld by a 3:2 majority.[66] The High Court ruled
     that evidence as to the accused’s family history of sexual abuse
     (memories of his father’s aggressive sexual abuse of his sisters,
     supposedly evoked by Gillies’ actions) was incorrectly excluded by the
     trial judge.[67]

 33. The idea of the Kantian male heterosexual body underpins the legal
     narratives of the HAD. Throughout the texts which comprise the HAD,
     metaphors of sovereignty, integrity and autonomy are used to map the
     male body. For example, when he turned himself into the local Mudgee
     police station, Malcolm Green uttered the now infamous words: ‘Yeah, I
     killed him, but he did worse to me … he tried to root me.’[68] This
     assertion of bodily integrity as a fate (literally) worse than death
     is by no means an uncommon theme in many HAD narratives, and nor is it
     one confined to the killer’s spur-of-the-moment confessions (or
     rather, justifications). In Murley, for instance, defence counsel’s
     calibration of bodily wrongs clearly ranked perceived anal penetration
     as a harm almost commensurate with his client’s response of stabbing
     his victim seventeen times with a breadknife, hitting him with a chair
     and slitting his throat.[69] Accordingly, counsel remarked in his
     address to the jury in that case: ‘[This attack] was not the usual
     case of an attack where he’s going to be killed; it’s an attack where
     he’s going to be sodomised, which is almost as grave.’[70] These
     assertions of bodily integrity form a part of the ensemble of texts
     which together comprise the narrative of the HAD, but it is perhaps
     from the judicial texts themselves that inscriptions of the male
     heterosexual body derive their most potent discursive force.

 34. The rhetoric of integrity and autonomy, violation and intrusion, is
     central to the various judgments in Green. The epistemology of the
     male heterosexual body as inviolate underpins, and indeed compels,
     their reasoning. For example, Smart J, of the New South Wales Court of
     Criminal Appeal, wrote in outraged dissent that ‘some ordinary men’
     would regard an advance of the kind which the defendant had to endure
     in that case as a ‘serious and gross violation of their body and their
     person’,[71] whilst Brennan CJ in the High Court wrote tellingly of
     the despicable ‘attempt to violate the sexual integrity of a man.’[72]
     This particular conception of the male body in Green structures the
     understanding not only of the majority judges, but of the dissentients
     as well. While it would be reductive (and unfair) to bracket Kirby J’s
     measured yet impassioned dissent with the judgments of Smart J and
     Brennan CJ, his language does disclose some conceptual attachment to
     the bounded body.[73] For example, he writes of how Don Gillies
     ‘intruded’ into Malcolm Green’s privacy, and more generally of how
     advances (be they homosexual or heterosexual) have the potential to
     ‘intrude on sexual integrity in an objectionable way’.[74] Perhaps
     Malcolm Green put it best, this time more eloquently, when he said
     that the events of that night ‘forced [him] to open more than [he]
     could bear’.[75]

 35. The impregnable Kantian body does not just inscribe the male
     heterosexual as a bounded autonomous being – rather, more importantly,
     it inscribes the homosexual culprit as a dangerous outlaw. Many
     commentators on the HAD stress how in both the transcripts and the
     judgments of these cases the distinction between a sexual advance and
     a sexual assault is often blurred.[76] Indeed, Nathan Hodge observes
     that this very blurring is functional to the shifting of blame in
     these trials.[77] As one can readily see, the ‘real’ crime inheres not
     in the homicidal retaliation but in the purported act of penetration
     which it seeks to pre-empt. In this respect, the trope of victim as
     villain is analogous to that which is often mobilised in female sexual
     assault cases.[78] Just as in these cases of sexual assault where the
     deployment of discourses about unruly and illegitimate feminine
     heterosexuality permits the installation of the masculine aggressor
     as, alternately, genuine seeker of consent and aggrieved victim of
     feminine caprice, so too does the deployment of discourses about
     predatory and lascivious homosexuality facilitate the installation of
     the homicidal heterosexual as hero (and the homosexual man as
     villain). Santo de Pasquale writes of how one result of the High
     Court’s decision in Green is that ‘courts will continue to distinguish
     a non-violent homosexual advance from a non-violent heterosexual
     advance’.[79] This is undoubtedly accurate, but it is possible to take
     his critique one step further and argue that the discursive
     construction of the male heterosexual body in these narratives renders
     the very concept of a ‘non-violent homosexual advance’ impossible to
     imagine.[80] A homosexual advance is by its very penetratory nature an
     attack upon the sanctified and impenetrable male body. There is no
     such thing as a ‘non-violent homosexual advance’ within the narratives
     of the HAD. The discursive construction of the Kantian male body
     produces the figure of the homosexual man as dangerous predator, and
     hence fair game for the enraged homophobe.

 36. This much is clear from even a cursory reading of the majority High
     Court judgments in Green. While Priestley JA, writing for the majority
     of the New South Wales Court of Criminal Appeal, found Don Gillies’
     overtures to be ‘amorous, not forceful’, Brennan CJ quickly set out to
     rewrite the amorous encounter.[81] Priestley JA’s more sensitive
     treatment of the facts is not allowed to stand for long within the
     High Court’s legal and epistemological framework of homosexuality as
     abuse. Gillies’ actions are reinterpreted as ‘persistent’, even
     ‘terrifying’, and he is triumphantly reinscribed as ‘the sexual
     aggressor of the appellant’.[82] For his part, McHugh J described
     Gillies’ behaviour as ‘quite rough and aggressive’.[83] Similarly, in
     McKinnon, despite there being no evidence of the victim, Maurice,
     touching the accused’s genitals or even attempting to have sex with
     him, the defence case was conducted on the premise that what occurred
     was in actual fact an attack.[84] The defence succeeded in that case
     (and in many others) for a very simple reason. Because of the
     inscription of the male heterosexual body as bounded, any advance upon
     the body, however amorous or gentle, automatically represents an
     attack.

 37. The image of the homosexual man as predatory penetrator commands such
     discursive force in contemporary legal narratives (and, indeed, in
     wider social and cultural fora)[85] that it is easily able to trump
     physiological improbabilities, gloss over the obvious power imbalances
     in HAD fact scenarios, and, finally, override an accused’s previous
     admissions. This is why, to echo Dean Kiley, ‘the defensive fictions
     of apocalyptic poofs work so well’.[86] The Kantian body’s production
     of the homosexual man as dangerous penetrator functions so effectively
     that in Green a majority of the High Court apparently accepted the
     near physical impossibility of Malcolm Green’s account that after he
     had hit his victim in the head over and over again until, by his own
     admission, ‘he didn’t look like Don to me’,[87] Don Gillies was
     seemingly still so persistent and so forceful in his attentions that
     Green had little choice but to stab him with a pair of chicken spears
     in order to immobilise him. This is a story oft-repeated in HAD
     narratives. In the case of R v X, for example, the jury was enjoined
     to believe (and readily did) that the victim, after having been pushed
     over, punched a number of times, and hit repeatedly over the head with
     a door stopper, still needed finishing off with a knife.[88]
     Similarly, in Murley the accused was able to take the stand and relate
     the following, apparently without irony:

          Well, we started struggling because he caught up to me
          again, because I stopped, and I thought, ‘Well, I’ve just
          stabbed a man a couple of times in the back and I better
          stop and say, ‘Listen are you allright [sic]? I am not like
          that. Let’s sit down’, but he come towards me again.[89]

 38. In all the above cases the murderers were younger, fitter and stronger
     than their victims. As Kirby J observed in Green, this much is evident
     simply from the disastrous course that events soon took in that
     case.[90] His observation applies with equal force to the fact
     situations of X and Murley. The immense cultural power of the
     predatory penetrator is hence able to account not only for the near
     physical impossibility of a half-dead man (libido intact) continuing
     his unwanted sexual advances in a physically threatening manner, but
     also to contradict the obvious indication that the heterosexual
     victims (the real victims in these cases) were far superior physically
     to their homosexual tormentors. It is at this juncture that the
     forensic verges on the cinematic, as the defence projects figures of
     the homosexual villain as phantom, zombie and vampire, in appeal to
     cultural understandings of homosexuality as a (literally) monstrous
     aberration. Even when there is a clear statement from the accused,
     such as there was in Green, that the advance was non-threatening (‘I
     suppose it was gently’),[91] the figure of the predator ultimately
     reasserts itself in the minds of the judge and jurors. As Adrian Howe
     wryly observes of the High Court decision in Green, ‘[r]eality gets
     turned on its head in the judgments which found for the
     appellant’.[92]

 39. To recap, then, this section has outlined a critical poststructuralist
     methodology for reading the narratives of the HAD. Instead of assuming
     the innate presence of the body, or its naturalness, such a
     methodology starts from the proposition that the body is a function of
     discourse. Unlike a liberal methodology that takes the body for
     granted, or which often elides talk of the body in (literally)
     disembodied and abstract formulations of rights and autonomy, a
     critical poststructuralist methodology allows one to isolate the ways
     in which understandings of the body are both socially constructed and
     a product of ongoing negotiation. Applying this methodology to the
     HAD, it is argued that the Kantian ‘body bag’ functions as a central
     element in the discursive matrix of the HAD, by producing the figure
     of the homosexual man as predatory and dangerous. This serves both to
     legitimate and to (re)produce homophobia-related violence. Until law
     reform projects explicitly concern themselves with the issues raised
     by a corporeal analysis of the HAD, that is, the way in which certain
     bodies are constructed and produced, they will fail in their
     objectives. Section IV, below, demonstrates the limitations of a
     disembodied liberal legalism through a consideration of various law
     reform proposals.

     The Limitations of the Liberal Law Reform Project

 40. Before turning in the final section to consider some of the principles
     and possibilities of an emergent poetics of law reform, it is first
     necessary in this section to address some of the extant liberal law
     reform proposals. The discussion below will demonstrate how, absent a
     consideration of the constitutive role performed by the law in
     producing bodies (a lacuna common to all these proposed solutions to
     the problem of heterosexed violence) these liberal suggestions are
     destined to fail. They are discussed below in ascending order of
     epistemological radicalism. Thus, Part A addresses the limitations of
     a standard ‘Court of Morals’ direction; Part B details the
     shortcomings of an approach based upon evidentiary reform; Part C
     discusses the problems inherent within reform of the provocation
     provisions; whilst, finally, Part D canvasses the abolitionist
     arguments in the context of the defence of provocation.

     'Court of Morals' Direction

 41. In its Final Working Paper of September 1998, the New South Wales
     Attorney General’s Working Party on the Review of the Homosexual
     Advance Defence proposes that a new direction be included in the
     Judges’ Benchbooks as an available standard direction. Such a
     direction (a ‘Court of Morals’ direction) would be given ‘in any trial
     of a violent offence in which the unusual sexuality of the victim has
     been placed before the jury’.[93] The Working Party’s suggested
     wording is as follows:

          You may conclude that the deceased’s (or alleged victim’s)
          behaviour and sexual orientation do not accord with those
          which you regard as morally acceptable. It is therefore
          important that you remember that this is a court of law and
          not a court of morals. Prejudice and emotion must have no
          place in a court of law. Everyone is equal before the law.
          So, on the question of sexuality, I direct you that a
          person’s background is not of the slightest relevance. There
          should be no prejudice against the deceased (or alleged
          victim) or the accused on the basis of sexual orientation.
          You should decide the matters on the issues without
          prejudice and without empathy to the deceased (or alleged
          victim) or the accused.[94]

     It must be borne in mind that this particular reform suggestion was
     raised by the Working Party in the context of other more substantive,
     and admittedly more radical, proposals (discussed below at Part C).
     However, it is still important to state the limitations of such an
     approach as it is indicative of the problems attending much liberal
     reform jurisprudence in this and other contexts. Like the proposals
     that follow, this proposal (although perhaps to a greater degree)
     seeks legalistic answers to discursive problems and, in so doing,
     elides the body.

 42. First, in a very practical sense, the success of such a proposal is
     not easily ascertained given the inviolable secrecy of jury
     deliberations. Even where a jury returns a guilty verdict in the case
     of a HAD trial it will never be possible to determine to what extent
     the judicial warning contributed to that verdict. Secondly, one must
     question the utility of a single judicial direction given at the
     conclusion of a trial throughout which prejudicial constructions of
     homosexuality have been mobilised as a central plank of the defence
     strategy. One suspects that an isolated appeal to a juror’s (always
     limited) ability to counter enormously powerful discourses about the
     male body and deviant sexuality is not likely to be of much practical
     use. The Working Party’s suggestion in this regard appears to
     underestimate the power of the discursive constructions of the body
     and of sexual identity which sustain the HAD. Finally, the ‘Court of
     Morals’ direction does nothing to address the very constructions of
     the body which subtend and sustain the HAD’s lethal/legal violence.
     Rather, it simply tries to expel them from the courtroom. The familiar
     appeal to a ‘strict and complete legalism’,[95] a juridical paradigm
     in which the law is hermetically sealed from the pernicious influences
     of prejudice and emotion, actually functions to elide the constitutive
     role that the law performs in producing bodies (and, crucially,
     violence directed towards those bodies). The Working Party’s law
     reform solution is hence deficient for the very reason that it fails
     to reform the role the law plays in the maintenance of the HAD –
     preferring to locate the real problem in the extra-legal prejudices of
     which bigoted jurors have failed to divest themselves before entering
     the jury room.

     Evidentiary Reform

 43. The second reform proposal focuses not on the conclusion of the
     criminal trial but, rather, on its conduct. In the course of a recent
     article in which he deconstructs the courtroom representations of the
     homosexual victim in three separate post-Green HAD murder trials in
     New South Wales (R v Hodge, R v Graham, and R v Andrew)[96] Jef Sewell
     formulates a proposal for reforming the law relating to the HAD.
     Despite having employed throughout his article a poststructuralist
     methodology (a critical apparatus which allowed him to identify the
     various ways in which the respective victims in those trials were
     discursively positioned as dangerous predators),[97] Sewell’s response
     to the discursive problem he identifies is in the end result
     impeccably legalistic: reform of the evidentiary provisions. Or,
     rather, not so much legislative reform as a more faithful and
     stringent judicial observance of the extant provisions. Sewell focuses
     on the relevant New South Wales provisions, contained within the
     Evidence Act 1995 (NSW) (‘the Act’). However, his comments apply
     equally to cognate statutory provisions and equivalent common law
     rules of evidence.

 44. Briefly, Sewell contends that the prejudicial constructions he has
     identified – namely the deployment of the familiar sexual
     predator/sexual prey binary and the construction of the homosexual man
     as a dangerous and lascivious sexual fiend – can simply be excluded by
     the proper operation of the rules relating to hearsay (s 59) and
     tendency (s 97).[98] Failing this, trial judges should exercise the
     discretion vested in them by s 135 of the Act to exclude evidence
     where its ‘probative value is substantially outweighed by the danger
     that the evidence might’ among other things, be unfairly prejudicial
     to a party (s 135(a)) or be misleading or confusing (s 135(b)).[99]
     First, Sewell argues that much evidence relating to the sexual
     identity of a victim (led to substantiate the accused’s uncorroborated
     assertion of a homosexual advance) is admitted via exceptions to the
     hearsay rule which are not enforced properly by judges. Were this rule
     to be enforced more stringently, the evidence would not be
     admissible.[100] Secondly, he argues that on a proper construction of
     s 97, evidence of the victim’s alleged homosexuality should be limited
     to the particular act in question and that matters such as the
     accused’s prior sexual history should be ruled inadmissible because
     they fail to satisfy the ‘significant probative value’ test set out in
     that section.[101] Finally, Sewell argues that in HAD cases the Crown
     should request the trial judge to exclude the evidence relating to the
     victim’s alleged homosexuality under s 135 because of the potential
     prejudicial and/or misleading effect it may have upon the jury.[102]

 45. Sewell contends that the only significant limitation to his project of
     evidentiary reform is that it ‘necessitates an imposed silence
     resulting in invisibility for the victim’s sexuality’.[103] This is
     indeed an important limitation. A more fatal limitation stems from
     Sewell’s failure to address the constitutive nexus between the law and
     the body. To suggest that a more rigorous application of formal legal
     rules will of itself exclude prejudicial constructions of the male
     homosexual victim does nothing to address the epistemological basis
     of, or indeed to challenge, these constructions. What is more, it
     fails to recognise that it is the law itself which is complicit – as a
     constitutive discourse – in constructing these very discursive
     representations. A more thoroughgoing critique of the constructions
     themselves – which is in fact hinted at by the initial trajectory of
     Sewell’s analysis – would be able to answer the question of why the
     conflation of sexual acts and sexual identity renders the victim’s
     sexual history seemingly relevant for the purposes of the Act.[104] It
     would also be better placed to account for what Sewell contends is the
     ‘astounding’ admission of hearsay evidence in Hodge,[105] an admission
     which when viewed through the lens of a powerful discursive
     understanding of the male body which conditions the judicial actors in
     these narratives, is perhaps not as astounding as he asserts. Finally,
     such an analysis might be able to account for why judicial perceptions
     of what is ‘prejudicial’ within the meaning of s 135 – perceptions
     which are themselves structured by a belief in the sacrosanct and
     inviolate nature of the male body – may not yield the results Sewell
     expects. In short, Sewell’s reform proposals are deficient because
     they do not engage with the root epistemological causes of the HAD’s
     lethal/legal violence and they fail to give sufficient weight to the
     discursive figures of the Kantian body and its monstrous assailant,
     the predatory homosexual man. The strength of these discursive
     productions always exceeds the limits of a strict legalism, or perhaps
     more accurately, their strength informs the very (elusive) practice of
     a strict legalism.

     Amendment of Provocation Provisions

 46. If Sewell is perhaps overly sanguine about the progressive effect
     procedural reform can achieve in this context, then a similar charge
     can be levelled at more radical changes to the substantive law of
     provocation. The first of these suggested changes was made by the New
     South Wales Attorney General’s Working Party on the Review of the
     Homosexual Advance Defence:

          6.5 The Working Party has become convinced that such change
          is necessary. The retention of a partial defence based on a
          homicidal response to a non-violent homosexual advance
          cannot, in the opinion of the Working Party, be countenanced
          any longer. If the High Court [in Green], by a narrow
          majority, is not prepared to interpret the legislation in
          question as excluding such a possibility, then the
          legislation itself should be changed by the NSW Parliament.
          ...

          6.7 Accordingly, the Working Party recommends the exclusion
          of a non-violent homosexual advance from forming the basis
          of the defence of provocation, by way of legislative reform
          of section 23 of the NSW Crimes Act.[106]

 47. A wider reform to the provocation provisions has been suggested by
     Helen Brown, the effect of which would be to exclude from the ambit of
     the partial defence not only homophobia-related attacks but other
     scenarios of gendered violence as well. She writes:

          I propose that provocation be legislatively redrawn so that
          the defence is explicitly stated to be unavailable to
          defendants in three specific circumstances:

          (i) Where a defendant alleges provocation where the deceased
          has left, attempted to leave or threatened to leave an
          intimate sexual relationship
          (ii) Where a defendant alleges provocation because of
          suspected, discovered or confessed infidelity
          (iii) Where a defendant alleges provocation due to a
          non-violent sexual advance.[107]

 48. These proposals, along with other proposals which seek to delimit the
     provocation doctrine without calling for its abolition,[108] are
     directed towards removing from the scope of provocation those
     situations where its operation further entrenches disadvantage along
     the lines of gender and/or sexuality.[109] Whilst this is a laudable
     objective, the recent history of HAD trial tactics demonstrates that
     the legal method adopted for excising the HAD from the purview of
     provocation – the exclusion of a non-violent (homo)sexual advance – is
     destined not to work.

 49. Again, this problem is referrable to the constitutive role performed
     by law in the discursive construction of the male body. As discussed
     above in Section III, Part C, the particular understanding of the body
     underpinning the HAD automatically constitutes any advance upon that
     body as an attack. Hence, this tactic of exclusion runs both
     discursive and practical risks, in that not only is a non-violent
     homosexual advance not within the bounds of legal contemplation, but
     in typical HAD murder scenarios the victim is not present to contest
     the allegation of a sexual attack (a situation in which judges have
     traditionally been, and will no doubt continue to be, loath not to put
     provocation the jury).[110] The conflation of a sexual advance with a
     sexual attack was identified as a problem by the Working Party,[111]
     and yet their response to this very problem was a legalistic solution.
     This demonstrates the limits of an approach which fails to address the
     body. Until the discursive construction of the male body in law is
     fundamentally challenged, mere redrafting of a criminal statute will
     not result in the abolition of the HAD. Rather, judges and juries will
     continue to interpret scenarios in line with the predominant corporeal
     understanding of the inviolate male body and wilfully read a caress as
     an attack.[112] Again, discourse will transcend, escape or exceed the
     limits of a strict liberal legalist approach.

     Abolitionist Arguments

 50. Finally, there is a burgeoning jurisprudence critical of the defence
     of provocation itself, arguing, as per Adrian Howe, that it is a
     ‘profoundly sexed excuse for murder and should be abolished’.[113]
     Most of this abolitionist jurisprudence has been of a feminist
     orientation,[114] the central contention of which has been that the
     theoretical origins of the defence lie in a spurious justification,
     and (re)production, of masculinist violence. This masculinist
     violence, whose archetypal expression is a drunken pub brawl gone
     awry, is rationalised throughout the apologist literature by invoking
     the need for a ‘concession to human frailty’.[115] Furthermore,
     feminist critics have pointed to the defence’s frequent modern
     deployment in scenarios where women have left, or have simply
     indicated an intention to leave, sexual relationships with jealous and
     violent men.[116] Recent Australian case law attests to this
     observation.[117] The defence functions in these situations as a
     legitimation for sexualised, masculinist violence and the sexual
     possession and objectification of women. Feminist attempts to
     appropriate the defence for the ends of women who murder their
     partners in various situations have resulted in mixed results (both in
     a theoretical and a practical sense).[118]

 51. The cumulative case for the abolition of the defence of provocation is
     hence a compelling one. The conclusion that the defence is
     irredeemably gender biased and should be abolished is a conclusion now
     increasingly arrived at by law reform bodies,[119] and, most recently,
     by the Tasmanian legislature.[120] The suggestion to abolish the
     defence of provocation is the most explicitly political, and radical,
     of all the HAD law reform proposals.[121] Unlike the other proposals,
     it does attempt to isolate the (gendered) political underpinnings of
     the legal defence of provocation and is accordingly the one most
     likely to achieve substantive progress.

 52. However, in closing this section on the limitations of liberal law
     reform proposals, it is important to note that even the abolitionist
     approach to the issue of the HAD is beset by several
     difficulties.[122] First, on a practical level, the strategy targets
     one of the legal vehicles for the HAD. Whilst this may have the effect
     of limiting its availability, it will not completely eradicate the
     HAD. As was discussed above in Section II, the HAD is best described
     not as a discrete defence but rather as evidence which supports the
     pleading of a recognised, substantive defence such as provocation or
     self-defence. Consequently, if provocation is abolished then astute
     defence lawyers will simply plead self-defence in its stead.[123] If
     the construction of the male heterosexual body as bounded and
     impermeable is not challenged, and the corresponding equation of a
     sexual advance with a sexual attack is left undisturbed, then
     self-defence looms as a probable alternative to the provocation
     doctrine. All that would be required, in appeal to popular discourses
     of predatory and monstrous homosexuality, would be to substitute one
     impassioned defence assertion with another. An affront to one’s bodily
     honour and dignity morphs easily into a fear for one’s very life.
     Finally, and this is perhaps the central criticism germane to all the
     foregoing liberal proposals, the abolitionist strategy is essentially
     reactionary. This is not to say that it is motivated by political
     conservatism, for indeed the opposite is true, but rather that it is
     strategically conservative. What it lacks, along with the other
     liberal programs, is a positive approach to eradicating the legalised
     heterosexed violence of the HAD. A corporeal politics can hopefully
     remedy this liberal shortcoming. As the final section below
     illustrates, it is through rethinking, rewriting and remetaphorising
     the legal body that more long-lasting and radical change can be
     achieved.

     Towards a Poetics of Law Reform

 53. Section III adumbrated a critical poststructuralist approach to the
     body inscribed by legal discourse. Section IV demonstrated the various
     limits of a liberal legalist reform project, which were, inter alia, a
     failure to acknowledge the constitutive role performed by the law in
     inscribing bodies in discourse; a consequent failure to address the
     epistemological causes of, and to offer solutions for ending, the
     corporeal violence; and, finally, a resort to legalist solutions to
     discursive problems of the law’s own making. Crucially, the various
     liberal legal reform proposals assume the effectiveness of strictly
     legal solutions to a legal problem always already determined by law as
     discourse.[124] Thus, this paper has sought to demonstrate not only
     how the predominant reformist approach to the HAD has failed, and is
     bound to continue to fail, but has outlined an alternative methodology
     for reading the narratives of the HAD. How, then, is this alternative
     methodology to function? What is the praxis of a poststructuralist
     poetics of law reform? The final discussion is divided into three
     parts: Part A states the objective of a critical poststructuralist
     praxis; Part B states some of problems encountered by this approach;
     and, finally, Part C sketches some methodological principles and
     practical examples.

     Objective

 54. The relation between poststructuralist methodologies and legal reform
     is almost always figured as an either/or relation.[125] The
     prospective legal reformer must elect to engage with either
     poststructuralism or the tools of the modernist legal apparatus (but
     never both). The deferral of meaning and the (re)constitution of
     bodies, it is frequently assumed, make somewhat strange bedfellows
     with the strategies of piecemeal legislative change and targeted
     litigation. Indeed, Peter Johnston despairs of law reform’s ability to
     engage meaningfully with the kind of discursive constructions
     discussed throughout this paper:

          Joe Godfrey [the victim in Murley] is produced as a ‘dirty
          old man’ (or child molester, or effeminate, or weak or
          riddled with AIDS), therefore Joe Godfrey is a ‘dirty old
          man’. No amount of law reform can, of itself, change
          this.[126]

 55. As the preceding section illustrated, law reform ‘as traditionally
     understood within a liberal frame of reference’[127] has no purchase
     on the sort of discursive constructions deployed in Murley and other
     HAD cases. What a poetics of law reform must seek to achieve is to
     reformulate the project of law reform, to negate or transcend the
     terms of the binary poststructuralism/law reform. If ‘law reform as
     traditionally understood within a liberal frame of reference’ has
     failed to engage with the epistemologies of the body, then henceforth
     it must be redeployed in order to do so.

 56. Simply put, a poetics of law reform must, in the context of the HAD,
     seek to remetaphorise the legal body. As this paper has argued, an
     identifiable discursive basis for the lethal/legal violence of the HAD
     is the particular construction of the male heterosexual body as
     bounded and impermeable. It is this particular inscription (and the
     ensuing equation: bodily autonomy, limits, transgression, provocation,
     murder…) which subtends, supports and sustains the legal narrative. It
     is therefore incumbent upon reformers to begin to rethink the body as
     other than closed – as open, contingent, permeable, interconnected,
     plural – and to reinscribe legal bodies accordingly. As the example of
     the narratives of the HAD illustrate, a corporeal economy founded upon
     isolation and limits, precludes connection and encourages violence. A
     poetics of law reform must enact an opening of the body and of (the
     body of) law. In place of the closed body must be enacted an ethic of
     interconnectedness of bodies.

     Difficulties

 57. Admittedly, such a methodology is not without its own limits. The
     first of these is perhaps the very enormity of the task at hand.
     Indeed, Naffine slightly understates the difficulties encountered to
     date when she observes that ‘[c]hallenging the bounded rhetoric of law
     has not been easy’.[128] The project is more accurately described as
     Herculean in scope – notions of borders structure not only
     contemporary understandings of bodily sovereignty but, as recent
     Australian examples aptly demonstrate, modern concepts of national and
     ethnic sovereignty are also predicated upon borders and boundaries.
     One need only consult recent debates around ‘queue jumpers’ and
     ‘illegal immigrants’ to note that corporeally or geo-politically – be
     it the body of the individual or the body politic – borders and
     boundaries literally and figuratively set the limits of one’s
     understanding.

 58. However, the concept of the border is not simply a prevalent metaphor
     in modern Western legal discourse – it is a functionally vital one as
     well. Jennifer Nedelsky writes of how the idea of the boundary serves
     as a ‘central metaphor in the legal rhetoric of freedom’.[129] It is
     through the creation of boundaries between the inside and the outside,
     through the creation of a ‘constitutive outside’,[130] that the very
     notions of legal property relations and the fiction of a unitary legal
     personhood ‘work’. The ubiquity and the functionality of the border
     metaphor are neatly evidenced in the recent United States Supreme
     Court decision of Lawrence et al v Texas, a case concerning the
     constitutionality of a Texas statute forbidding two persons of the
     same sex to engage in certain intimate sexual conduct. In holding that
     the statute offended the Due Process Clause of the Fourteenth
     Amendment of the United States Constitution, Kennedy J (delivering the
     opinion of the Court), wrote:

          Liberty protects the person from unwarranted government
          intrusions into a dwelling or other private places. In our
          tradition the State is not omnipresent in the home. And
          there are other spheres of our lives and existence, outside
          the home, where the State should not be a dominant presence.
          Freedom extends beyond spatial bounds. Liberty presumes an
          autonomy of self that includes freedom of thought, belief,
          expression, and certain intimate conduct. The instant case
          involves liberty of the person in its spatial and more
          transcendent dimensions.[131]

 59. Even in a case concerning the legal construction of the bounded body
     by and through State anti-sodomy legislation, and even in a majority
     opinion striking down the legislation in question, the Supreme Court
     resorts to its familiar liberal jurisprudence of bodily choice and
     autonomy, refusing to interrogate the very epistemological grounds
     upon which the body is constituted as closed. Indeed, as with some of
     the liberal proposals discussed in the previous section, the
     (re)deployment of discourses of bodily autonomy only serves to elide
     the discursive problem.[132] As the above brief discussion indicates,
     the size and difficulty of the task of resignifying the body in legal
     discourse cannot be disputed. The power and centrality of bodily
     autonomy in legal discourse is manifest.

     Principles and Examples

 60. How, then, are the limits of the discursive legal body to be broached
     (or breached)? As the quotation from Cornell cited earlier in this
     paper illustrates, the power of a socially-constructed norm or value
     must not lead one to assume that it is incontestable. What is scripted
     can be rescripted. The entrenched nature of the bounded body in legal
     discourse does not compel its acceptance. On the contrary, it simply
     compels a refocusing of one’s efforts. This paper has not argued
     against legal reform per se. Rather, it has argued that legal reform
     efforts must be refocused (and perhaps broadened) in order to address
     the constitutive role that law performs in the inscription of bodies.
     A renewed poetics of law reform must address the question of the body.

 61. This aim can be achieved in a multiplicity of ways. To take the
     example of the anti-sodomy legislation which framed the constitutional
     question in Lawrence, a critical poststructuralist approach would
     advocate the abolition of such statutes. However, the reasoning behind
     this abolitionist strategy would not be based upon liberal concepts of
     bodily sovereignty. To do so would be to purchase a short-term legal
     gain at the cost of reproducing a wider discursive problem. Rather, a
     critical poststructuralist reasoning would be explicitly directed (in
     legal and social fora) towards questioning the idea that the male body
     is something that one breaches, that one invades, that one
     transgresses. This resignification of the male body as open and
     interconnected would form the political basis for the statutory law
     reform.

 62. To take another example, current legal inscriptions of the body are
     heavily influenced by the statutory definition of sexual intercourse
     (used for the purposes of defining sexual assault crimes).[133] The
     current definition of sexual intercourse contained within s 61H of the
     Crimes Act 1900 (NSW) contains the following passage:

          (1) For the purposes of sections 61H-66F, ‘sexual
          intercourse’ means:

          (a) sexual connection occasioned by the penetration to any
          extent of the genitalia (including a surgically constructed
          vagina) of a female person or the anus of a person by:
          (i) any part of the body of another person, or
          (j) any object manipulated by another person,

          except where the penetration is carried out for proper
          medical purposes.

     This definition of sexual intercourse is predicated upon the idea of
     penetration, which is itself predicated upon (and sustains) a
     particular understanding of the body. A poststructuralist poetics of
     law reform would advocate the widening of the definition of sexual
     intercourse,[134] contesting the notion that intercourse between
     bodies must necessarily be scripted as penetration. As in the example
     above, statutory law reform would in this instance explicitly concern
     itself with a revision of metaphors of the body.

 63. Furthermore, in litigation such as the Lawrence case, and in cases
     such as the House of Lords decision of Brown, a poststructuralist
     poetics of law reform would advocate the framing of litigation around
     political questions of the body. Targeted political litigation has
     achieved some success in certain contexts. For example, the Women’s
     Litigation Education and Action Fund has been influential in bringing
     before the Canadian Courts wider political issues of gender
     (in)equality.[135] This is not to assert that litigation is
     necessarily always an open and receptive forum for overt political and
     discursive resistance, for indeed the institutional reality of legal
     positivism means that such radicalism will frequently fall on deaf
     judicial ears.[136] Neither is it to assert that such a strategy is
     always strictly advisable in terms of individual trial tactics.
     Rather, it is simply to assert that in some cases a poststructuralist
     poetics of law reform would advocate contesting legal constructions of
     the body and that this may form an effective part of a wider legal
     discursive strategy.

 64. A poststructuralist poetics of law reform would also seek to engage in
     other discourses whose effects are felt in legal discourse. Attention
     must be paid to the representational politics of medical discourse,
     for the body is produced in medical texts and practices in specific
     ways and these are reproduced in intersection with legal discourse. In
     addition, a poststructuralist poetics of law reform would celebrate
     the production of dissident conceptions of the body in other areas of
     cultural production, for these too impact upon the law. This would no
     doubt entail an engagement with the legality and politics of
     contemporary censorship regimes.

 65. It can be seen from the above brief sketch that the struggle to
     reinscribe the legal body through an ethic of interconnectedness and
     contingency embroils the prospective legal reformer in a fight on many
     different fronts. The task of resignifying the male body in legal
     discourse is a necessarily dispersed one, for there are so many
     interconnecting legal and social sites where the body is (re)produced.
     The above strategies are in a sense quite random and unconnected. They
     may in certain situations overlap and coincide, whilst in others they
     may be counterposed. The strategies listed here are also intended
     neither to be prescriptive nor exhaustive. They are intended only to
     indicate the general principles that law reform must be directed
     towards the discursive function of the law in the area of the body and
     that regard must always be had towards interrogating these notions of
     the body and the violence that they (re)produce and sustain. The
     poststructuralist poetic of law reform must continually readdress the
     ways in which the body is (re)produced and (re)deployed in legal
     narratives. Only then will a more fundamental and effective law reform
     be possible.

     Conclusion

 66. This paper has argued that the male heterosexual body is inscribed by
     and within the narratives of the law in a particular way – as a
     bounded and impermeable unit – and that this inscription underpins the
     legal violence of the HAD. As has been demonstrated, this inscription
     of the body permits and gives rise to a number of other discursive
     figures, such as the homosexual as predatory monster and outlaw.
     Whilst there have been several liberal efforts to reform the law
     relating to the HAD, either through the mechanism of statutory reform
     or through other avenues, the shortfall of all these approaches has
     been their failure to address the law’s participation in the
     construction of the very body which it seeks (in any given context) to
     protect, to regulate, to coerce, or to punish. Hence, it is not law
     reform per se that is deficient, rather it is the extant proposals’
     elision of the body that is the problem. Adopting the insights of
     poststructuralist theory, it is submitted that a more effective
     methodology is to engage with (and challenge) the discursive practices
     of the law in the area of the body.

 67. Consequently, this paper advocates a rescripting of the body, a
     poststructuralist poetics of law reform that would (through practices
     of legislative reform, intervention in litigation, and engagement in
     wider discourses such as medicine and dissident cultural production)
     seek to broaden current understandings of the body and produce an
     ethic of interconnectedness and contingency. Like the examples
     enumerated above, this paper has been a step towards (re)theorising
     dominant legal conceptions of the body. Challenging attitudes about
     the body sustained in and by the operation of law as discourse is, it
     is argued, a more long-lasting (though more protracted and difficult)
     response to the endemic (hetero)sexualised legal violence of modern
     Australian life.

Notes

[1] Michel Foucault, ‘Orders of Discourse’ (1971) 10 Social Science
Information 7, 22.

[2] For a recent survey, see Stephen Tomsen, Hatred, Murder and Male
Honour: Homosexual Killings in New South Wales (2002).

[3] For example, see Steve Tomsen, ‘Hatred, Murder and Male Honour: Gay
Homicides and the “Homosexual Panic Defence” (1994) 6 Criminology Australia
2, who uses the term HPD to encompass what this paper refers to as the HAD.
See also Anthony Bendall and Tim Leach, ‘Homosexual Panic Defence’ and
Other Family Values (1995), 9. Interestingly, the Lesbian and Gay Legal
Rights Service decided upon using the terminology ‘homophobic response
defence’ in preference to the available alternatives. This is a compelling
move, motivated in part by a desire to avoid the pathologising connotations
of panic and also to relocate the focus of inquiry away from the (often
conflated) acts and identity of the victim and towards the homicidal
actions of the defendant. Although the main frame of reference adopted by
this paper will be one based upon sexuality and its embodied construction,
it is acknowledged that discourses of sexuality are always already
structured by discourses of class, ethnicity, gender, race, and so forth.
Accordingly, the terminology employed throughout this paper will be one of
‘homophobia-related violence’ (a term adopted from Gail Mason), in
acknowledgement that homophobia alone does not deterministically structure
the social field in the examples discussed infra. See Gail Mason, The
Spectacle of Violence: Homophobia, Gender and Knowledge (2002), 6.

[4] According to Robert Bagnall, Patrick Gallagher, and Joni Goldstein,
‘Burdens on Gay Litigants and Bias in the Court System: Homosexual Panic,
Child Custody, and Anonymous Parties’ (1984) 19 Harvard Civil Rights-Civil
Liberties Law Review 497, 499, the first case in which the HPD was used was
the 1967 Californian case of People v Rodriguez, 256 Cal. App. 2d 663, 64
Cal. Rptr. 253 (1967).

[5] See Edward J Kempf, Psychopathology (1920), 477 ff. For subsequent
acceptance and consideration of Kempf’s condition, see Burton S Glick,
‘Homosexual Panic: Clinical and Theoretical Considerations’ (1959) 129
Journal of Nervous and Mental Disease 20; Robert J Campbell, Psychiatric
Dictionary (6th ed, 1989), 328. For critical discussion, see Kara S
Suffredini, ‘Pride and Prejudice: The Homosexual Panic Defense’ (2001) 21
Boston College Third World Law Journal 279, 288-92.

[6] Suffredini, above n 5, 288.

[7] Ibid 288-9.

[8] For a discussion of the use of the HPD in support of the separate legal
defences of insanity and diminished responsibility, see Editors of the
Harvard Law Review, ‘Developments in the Law – Sexual Orientation and the
Law’ (1989) 102 Harvard Law Review 1508, 1543-6. As the Editors note, fewer
than half of the United States state-based criminal jurisdictions accept
the diminished responsibility defence. This is the case in New South Wales,
where the defence of diminished responsibility provided for under s 23A of
the Crimes Act 1900 (NSW) was replaced in 1997 with the defence of
substantial impairment of mind. For a discussion of the statutory basis of,
and the legislative reform process relating to, the new defence of
substantial impairment of mind, see David Brown, David Farrier, Sandra
Egger and Luke McNamara, Criminal Laws: Materials and Commentary on
Criminal Law and Process in New South Wales (3rd ed, 2001), 652-5. To date,
the literature on the HPD indicates that its use has been confined to
American criminal jurisdictions. A review of Australian case law confirms
this.

[9] Editors of the Harvard Law Review, above n 8, 1542.

[10] See Adrian Howe, ‘More Folk Provoke Their Own Demise (Homophobic
Violence and Sexed Excuses – Rejoining the Provocation Law Debate, Courtesy
of the Homosexual Advance Defence)’ (1997) 19 Sydney Law Review 336, 339.

[11] Suffredini, above n 5, 302.

[12] Gary David Comstock, ‘Dismantling the Homosexual Panic Defense’ (1992)
2 Law and Sexuality 81, 88.

[13] See Suffredini, above n 5, 292-302; Ibid 86-100.

[14] See Suffredini, above n 5, 303-4.

[15] See Ibid 305-9; Comstock, above n 12, 81.

[16] Suffredini, above n 5, 311.

[17] Ibid 292. Claims such as the one above, predicated as they are upon
holding the law to its self-professed standards in order to emphasize its
hypocrisy and its failures, are common amongst progressive political
critiques of institutions. See Perry Anderson, ‘Renewals’ (2000) 1 New Left
Review 5, 15. In the context of the HPD, however, Suffredini’s apparently
genuine belief in either the bona fides of the psychological disorder or
the humane intentions of the law in addressing it, seems ironically
misplaced.

[18] It is not asserted that the work of Comstock and Suffredini, in
bringing to light the inconsistencies between the psychiatric and legal
discourses, is or was unimportant. Rather, it is argued that these
critiques fall short of identifying the constitutive role performed by
legal discourse and are consequently limited in their scope. This paper,
critiquing the structural underpinnings of the HAD, employs a
poststructuralist and feminist methodology informed by the writings of
theorists such as Michel Foucault, Judith Butler, Elizabeth Grosz and
Ngaire Naffine.

[19] Howe, above n 10, 340. Alternatively, it is possible to read the HPD
(as per Eve Kosofsky Sedgwick), as a pathologisation of the hatred of gay
men. She writes that ‘the “homosexual panic” defense rests on the falsely
individualizing and pathologizing assumption that hatred of homosexuals is
so private and so atypical a phenomenon in this culture as to be
classifiable as an accountability-reducing illness’. See Eve Kosofsky
Sedgwick, Epistemology of the Closet (1990), 19. At any rate, whether one
regards the pathologisation of homophobia as politically preferable to the
pathologisation of homosexuality (and gay activists have made tactical
claims that homophobia is indeed tantamount to a disease), Kosofsky
Sedgwick and Howe both interrogate the grounds upon which medical,
psychiatric and psychological discourses construct dominant understandings
of sexuality and elide the social with the biological.

[20] See, generally, Michel Foucault, The Will to Knowledge (The History of
Sexuality: Volume One) (Robert Hurley trans, 1998 ed).

[21] See Ellen Herman, Psychiatry, Psychology, and Homosexuality (1995),
95-103, for a historical discussion of the events leading up to, and
immediately preceding, the removal of homosexuality as a psychiatric
condition by the American Psychiatric Association from its official
handbook of diagnostic criteria, the Diagnostic and Statistical Manual of
Mental Disorders (‘the DSM’). In terms of the interaction of medical and
legal discourses, the DSM (currently in its fourth edition) continues to
play a central role in civil and criminal litigation both within America
and in overseas jurisdictions such as Australia. For an interesting
counterpoint to the struggle of gay and lesbian activists to remove
homosexuality from psychiatry’s control and surveillance, consider the
experience of transgender people who have fought to have their ‘condition’
included in the DSM in order to secure institutional recognition as a
prerequisite to desired sex reassignment (or, sex affirmation) surgery. See
Susan Etta Keller, ‘Crisis of Authority: Medical Rhetoric and Transsexual
Identity’ (1999) 11 Yale Journal of Law and Feminism 51, 51-2.

[22] See, generally, Michel Foucault, Discipline and Punish: The Birth of
the Prison (Alan Sheridan trans, 1991 ed). On this, see also Carol Smart,
Feminism and the Power of Law (1989), 13-20.

[23] The HAD can be differentiated from the HPD on the basis not only of
geography and jurisdiction (it being a peculiarly American phenomenon), but
also on the basis of chronology. Indeed, it appears now that even in
America the HPD has been largely superseded by the HAD. As one commentator
graphically describes, the HPD has ‘morphed’ into the HAD. See Christina
Pei-Lin Chen, ‘Provocation’s Privileged Desire: The Provocation Doctrine,
“Homosexual Panic”, and the Non-Violent Unwanted Sexual Advance Defense’
(2000) 10 Cornell Journal of Law and Public Policy 195, 201. In Australian
criminal jurisdictions, as the discussion infra notes, the HAD was never
preceded by the HPD. The first reported case of the HAD was in the early
1990s.

[24] This paper is centrally concerned with the issue of male-to-male
homophobia-related violence. For a discussion of male-to-female
homophobia-related violence, see Howe, above n 10, 357-9. For a discussion
of race, ethnicity and culture in the context of the HAD and of Australian
provocation law generally, see Santo de Pasquale, ‘Provocation and the
Homosexual Advance Defence: The Deployment of Culture as a Defence
Strategy’ (2002) 26 Melbourne University Law Review 110.

[25] Ian Leader-Elliott, ‘Battered But Not Beaten: Women Who Kill in Self
Defence’ (1993) 15 Sydney Law Review 403, 406.

[26] Bendall and Leach, above n 3, 7.

[27] For example, see Stephen Tomsen, ‘“He Had to Be a Poofter or
Something”: Violence, Male Honour and Heterosexual Panic’ (1998) 3 Journal
of Interdisciplinary Gender Studies 44-57; Tomsen, above n 2; Tomsen, above
n 3. This paper seeks to build upon these approaches and investigate the
epistemologies of the male heterosexual body in criminal legal discourse.

[28] Thus, the HAD (like the HPD) is perhaps not best described as a
defence at all. Some commentators refer to it as a de facto defence. See,
for example, de Pasquale, above n 24, 113. Peter Johnston explains the
concepts of the HAD as being ‘incorporated into the pleas of provocation
and self defence’. See Peter Johnston, ‘“More than Ordinary Men Gone
Wrong”: Can the Law Know the Gay Subject?’ (1996) 20 Melbourne University
Law Review 1152, 1153. These formulations are perhaps slightly misleading.
It is preferable to conceive of the HAD simply as evidence in support of
the established defences, and not as a discrete defence.

[29] Like the conduct of sexual assault defences, the HAD participates in
the logic of ‘blaming the victim’. For critiques of the HAD which draw this
parallel with feminist critiques of sexual assault trial techniques and
evidentiary provisions, see Nathan Hodge, ‘Transgressive Sexualities and
the Homosexual Advance’ (1998) 23 Alternative Law Journal 30, 32; Justin
Vaughan and Steven Scott, ‘“Sexuality”, Violence and the Law: The Rise and
Ruse of “HAD” (1997) 8 Polemic 18, 20. See also the discussion in Section
III, Part C, infra.

[30] For a summary of recent NSW case law, see Jeff Sewell, ‘“I Just Bashed
Somebody Up. Don’t Worry About it Mum, He’s Only a Poof”: The “Homosexual
Advance Defence” and Discursive Constructions of the “Gay” Victim’ (2001) 5
Southern Cross University Law Review 47, 80-1. For earlier summaries of HAD
cases, see Hodge, above n 29, 30.

[31] The law of provocation in NSW is contained in section 23 of the Crimes
Act 1900 (NSW). This has been judicially interpreted to be an affirmation
of the common law defence of provocation. See Stingel v The Queen (1990)
171 CLR 312, 320 (‘Stingel’); Masciantonio v The Queen (1995) 183 CLR 58,
66. Unlike in the Code States of WA, NT and Queensland (where the defence
of provocation is available in the context of any crime of which assault is
a component), provocation is only available in NSW as a partial defence to
murder. Compare s 281 of the Criminal Code (WA); s 34 of the Criminal Code
(NT); and, s 304 of the Criminal Code (Qld). Note that Tasmania has
recently abolished the defence of provocation (see discussion in Section
IV, Part D, infra). As far as the relevant position in the other common law
states and territories goes, s 13 of the Crimes Act 1900 (ACT) is in
substantially the same form as its New South Wales statutory equivalent,
whilst in Victoria and South Australia the defence is entirely governed by
the common law. For a succinct discussion of the incidence of the HAD in
overseas common law jurisdictions, see Sarah Oliver, ‘Provocation and
Non-violent Homosexual Advances’ (1999) 63 Journal of Criminal Law 586.

[32] (Unreported, Supreme Court of Victoria, Teague J, 28 May 1992)
(‘Murley’).

[33] (Unreported, New South Wales Supreme Court, Studdert J, 24 November
1993) (‘McKinnon’); (Unreported, New South Wales Supreme Court, Dowd J, 19
May 1995).

[34] See Dean Kiley, ‘I Panicked and Hit Him with a Brick’ (1994) 1
Law/Text/Culture 81, which excerpts much of the contemporary media
responses to the gay killings and their courtroom narratives.

[35] The proceedings of the forum are published in Bendall and Leach, above
n 3.

[36] The majority of the academic criticism discussed throughout this paper
has attempted to contextualise the HAD within the homophobia and
heterosexism endemic to the Australian legal system (and indeed Australian
society more generally).

[37] New South Wales Attorney General’s Working Party on the Review of the
Homosexual Advance Defence, Homosexual Advance Defence: Final Report of the
Working Party, September 1998
<http://www.lawlink.nsw.gov.au/clrd1.nsf/pages/had>

[38] Fiona Manning, Self Defence and Provocation: Implications for Battered
Women Who Kill and for Homosexual Victims, Briefing Paper No 33 (1996).

[39] See New South Wales Law Reform Commission, Partial Defences to Murder:
Provocation and Infanticide, Report No 83 (1997), 70-1; Model Criminal Code
Officers Committee of the Standing Committee of Attorneys-General, Model
Criminal Code – Chapter Five: Fatal Offences Against the Person, Discussion
Paper (1998), 97-9.

[40] (1997) 191 CLR 334 (Brennan CJ, McHugh and Toohey JJ: Gummow and Kirby
JJ dissenting) (‘Green’). Note that there were five separate judgments
delivered in Green.

[41] Only one commentator contends that Green had nothing to do with the
HAD – Tom Molomby, who was Junior Counsel in the appeal to the High Court.
For an interesting, if completely misguided, reading of Green in this vein,
see Tom Molomby, ‘Cases and Causes: The High Price of Propaganda’, (2003)
47 Quadrant 15; Tom Molomby, ‘“Revisiting Lethal Violence by Men” – A
Reply’ (1998) 22 Criminal Law Journal 116. Other academic commentators
de-emphasize the relevance of Green in the context of the HAD. These
arguments are discussed in more depth in n 67, infra.

[42] Graeme Coss, ‘Revisiting Lethal Violence by Men’ (1998) 22 Criminal
Law Journal 5, 9.

[43] See the cases discussed in Sewell, above n 30, 80-1.

[44] Some of these planned reforms are considered in Section IV, infra.

[45] Zillah R Eisenstein, The Female Body and the Law (1988), 29.

[46] A caveat is perhaps warranted at this juncture. This paper’s
discussion of poststructuralist theories of embodiment (and, for that
matter, its passing engagement with scientific discourse) unavoidably
produces a crude simplification of what is undoubtedly a complex and
heterogenous field of study. One is mindful of Judith Butler’s warning not
to accept the sign of the ‘postmodern’ as a monolithic referent. See Judith
Butler, ‘Contingent Foundations: Feminism and the Question of
“Postmodernism”’, in Judith Butler and Joan W Scott (eds), Feminists
Theorize the Political (1992), 3-4. To be more specific, then, this paper’s
use of poststructuralism as a concept refers principally to Foucault and
those feminist theorists of the body who have adopted, appropriated and
extended upon his theories of discourse.

[47] A second caveat is perhaps necessary here. As Sara Mills, Discourse
(1997), 1 observes, the term discourse, ‘has perhaps the widest range of
possible significations of any term in literary and cultural theory’. The
sense in which the term is used in this essay is largely synonymous with
the concept as developed by Foucault. For an early, and useful, explication
of this concept, see Foucault, above n 1.

[48] For an analogous discussion of the concept of space as a palimpsest,
upon which the discursive concept of place is inscribed, see Paul Carter,
The Road to Botany Bay: An Essay in Spatial History (1987).

[49] Elizabeth Grosz, Volatile Bodies: Towards a Corporeal Feminism (1994),
60.

[50] Jean Baudrillard’s theories of simulation and hyperreality are perhaps
most often fastened upon by critics of ‘postmodern’ social theories as
examples of the argument (popularly ascribed to ‘postmodern’ theorists of
any ilk) that the ‘real world’ does not exist. See Steven Connor,
Postmodernist Culture: An Introduction to Theories of the Contemporary (2nd
ed, 1997). See also Butler, above n 46, 3.

[51] Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy:
Towards a Radical Democratic Politics (Moore, Winston and Cammack trans,
1985 ed), 108.

[52] For an interesting recent discussion of this concept, see
Anti-Discrimination Board of New South Wales, Race for the Headlines:
Racism and Media Discourse (2003).

[53] Drucilla Cornell, ‘The Doubly-Prized World: Myth, Allegory, and the
Feminine’ in Transformations: Recollective Imagination and Sexual
Difference (1993), 105.

[54] For a discussion of the constitutive role performed by law in the
construction and regulation of woman, see Dennis M Patterson,
‘Postmodernism/Feminism/Law’ (1992) 77 Cornell Law Review 254, 260.

[55] See Ngaire Naffine, ‘The Body Bag’ in Ngaire Naffine and Rosemary
Owens (eds), Sexing the Subject of the Law (1997), 84.

[56] For an interesting example of judicial treatment of consent to bodily
impeachment in a sexual context, see the (in)famous House of Lords case on
sado-masochist practices, R v Brown [1993] 2 All ER 75 (‘Brown’).

[57] Naffine, above n 55, 85.

[58] See Judith Butler, Bodies that Matter: On the Discursive Limits of
‘Sex’ (1993), 27-55.

[59] Naffine, above n 55, 86.

[60] Cornell, above n 53, 102.

[61] On the interaction of a discourse of sexual acts and a discourse of
sexual identity, see Kosofsky Sedgwick, above n 19, 38; Johnston, above n
28, 1166.

[62] Naffine, above n 55, 91.

[63] Tomsen, above n 27, 49.

[64] For a discussion of the production of the homosexual as outlaw,
influenced by the writings of Giorgio Agamben, see Catherine Mills, ‘The
Homosexual Advance Defence: The Law of Abandonment’ (Paper presented at the
3rd Annual Conference of the International Association for the Study of
Sex, Culture and Society, Melbourne, 1-3 October 2001) (Copy on file with
author).

[65] For a retelling of the facts in the Green case, see David Marr,
‘Ordinary Men: The High Court Blesses Homophobia’ in The High Price of
Heaven (1999), 51-71.

[66] Abadee J was the trial judge in Green; Priestley JA and Ireland J
formed the majority in the New South Wales Court of Criminal Appeal, whilst
Smart J dissented in that court.

[67] The argument ran that the evidence as to Green’s father’s heterosexual
assault of his two younger sisters (an assault Green had not personally
witnessed) was relevant to the issue of provocation because Gillies’s
actions reminded Green of his father. This argument has misled some
commentators to claim that Green was not centrally concerned with the HAD
but rather with the issue of child sexual assault. This argument (and its
partial academic acceptance) is dependant on a conflation of homosexual sex
with aggressive and predatory sexual assault, a conflation which is itself
derived from a particular discursive conception of the male body (as this
paper argues). For examples of the more extreme arguments that Green was
not about homophobia or the HAD, see the two articles by Molomby, above n
41. For examples of academic work which, pursuant to the child sexual
assault argument, de-emphasizes the relevance of Green in the context of
HAD jurisprudence, see Rebecca Bradfield, ‘Criminal Cases in the High Court
of Australia: Green v. The Queen’ (1998) 22 Criminal Law Journal 296, 303;
Rebecca Bradfield, ‘Provocation and Non-violent Homosexual Advances:
Lessons from Australia’ (2001) 65 Journal of Criminal Law 76, 83; Bronwyn
Statham, ‘The Homosexual Advance Defence: “Yeah, I Killed Him, But He Did
Worse to Me”’ (1999) 20 University of Queensland Law Journal 301, 309.

[68] Quoted in Green (1997) 191 CLR 334, 391 (per Kirby J).

[69] For a discussion of the facts in Murley, see Johnston, above n 28,
1165.

[70] Quoted in Ibid 1174.

[71] Quoted in Green (1997) 191 CLR 334, 346 (per Brennan CJ) (emphasis
added).

[72] Ibid 345 (per Brennan CJ) (emphasis added).

[73] It also discloses a familiar conceptual attachment to liberal notions
of autonomy, equality and the rule of law. The acceptance by the minority
judges in Green of this liberal framework does impair their ability to
mount a more systematic, epistemological critique of the HAD. For examples,
see Green (1997) 191 CLR 334, 386-7 (per Gummow J), 415-6 (per Kirby J).
For an article which adopts a similar approach, see Jarod Potter, ‘Does the
“Homosexual Advance Defence” Erode Equality Before the Law in Criminal
Cases?’ (2001) 3 e-valuate <http://www.law.ecel.uwa.edu.au/elawjournal>

[74] Green (1997) 191 CLR 334, 414, 416 (per Kirby J) (emphasis added).

[75] Ibid 348 (per Toohey J).

[76] For an example of the former, see New South Wales Attorney General’s
Working Party on the Review of the Homosexual Advance Defence, above n 37,
[4.10], [4.16]. For an example of the latter, see Allen George, ‘“Roll a
Fag and Go Free”: Competing Discourses of Sexuality and Sexual Identity’
(1995) 1 Journal of Interdisciplinary Gender Studies 49, 50.

[77] Hodge, above n 29, 32.

[78] This has almost become a cliché of much feminist writing on the
procedural and substantive law of sexual assault. Sadly, these insights
have to a large measure not permeated the legal apparatus (see n 80,
infra). For analyses of the HAD which also draw this parallel, see Vaughan
and Scott, above n 29, 20; Johnston, above n 28, 1178; Robert B Mison,
‘Homophobia in Manslaughter: The Homosexual Advance as Insufficient
Provocation’ (1992) 80 California Law Review 133, 170-4

[79] de Pasquale, above n 24, 118.

[80] Indeed, several recent infamous Australian examples of unreconstructed
comments from the bench evidence the corollary of this proposition (namely,
that a violent heterosexual advance can often be entirely acceptable). For
perhaps the most egregious example, see the ‘rougher than usual handling’
comments of Bollen J in R v Johns (Unreported, South Australian Supreme
Court, Bollen J, 26 August 1992), 12-3.

[81] Quoted in Green (1997) 191 CLR 334, 345 (per Brennan CJ). David Marr
relates a revealing moment in the transcript of proceedings before the High
Court, where Brennan CJ interrupted an exchange between McHugh J and Keith
Mason, QC, Solicitor-General for the State of New South Wales. Brennan CJ
interrupted Mason’s reconstruction of the facts thus: ‘When you say
“amorous”, you mean sexual?’. Mason stated that he was merely employing the
words of Priestley JA of the New South Wales Court of Criminal Appeal, but
accepted Brennan CJ’s reproach. This exchange is illustrative of how in HAD
cases stereotypes about lascivious and depraved homosexuality (i.e. mere
lust as opposed to emotional love) often attend the more powerful
inscriptions of the male heterosexual body. See Marr, above n 65, 68.

[82] Green (1997) 191 CLR 334, 341, 346 (per Brennan CJ).

[83] Green (1997) 191 CLR 334, 369 (per McHugh J).

[84] The facts in McKinnon are discussed in George, above n 76, 50.

[85] For a recent example, see the media discourse (and indeed
parliamentary debates) surrounding the passage of the Crimes Amendment
(Sexual Offences) Act 2003 (NSW), which amended the Crimes Act 1900 (NSW)
to provide for an equal age of consent for male homosexuals in NSW.

[86] Kiley, above n 34, 89.

[87] Quoted in Green (1997) 191 CLR 334, 348 (per Toohey J).

[88] For a discussion of the facts and the decision in R v X (Unreported,
New South Wales Supreme Court, Grove J, 11 April 1994) (‘X’), see Allen
George, ‘The Gay (?) Victim on Trial: Discourses of Sexual Division in the
Courtroom’ in Gail Mason and Stephen Tomsen (eds), Homophobic Violence,
(1997), 46-57.

[89] Quoted in Johnston, above n 28, 1171-2.

[90] Green (1997) 191 CLR 334, 414 (per Kirby J).

[91] Quoted in Green (1997) 1

[91] CLR 334, 360 (per McHugh J).

[92] Adrian Howe, ‘Green v. The Queen: The Provocation Defence: Finally
Provoking Its Own Demise?’ (1998) 22 Melbourne University Law Review 466,
486.

[93] New South Wales Attorney General’s Working Party on the Review of the
Homosexual Advance Defence, above n 37, [6.11].

[94] Ibid [6.12].

[95] The quotation is from Sir Owen Dixon CJ’s swearing-in, reported in
(1952) 35 CLR xi, xiv.

[96] See R v Hodge (Unreported, New South Wales Supreme Court, Dunford J,
25 August) (‘Hodge’); R v Graham (Unreported, New South Wales Supreme
Court, Whealy J, 10 November); R v Andrews (Unreported, New South Wales
Supreme Court, Sully J, 2 July 1999).

[97] Sewell, above n 30, 55-71.

[98] See generally, Part 3.2 of the Evidence Act 1995 (NSW), which contains
the exceptions to the hearsay rule, and Part 3.6, which governs the
admission of tendency and coincidence evidence.

[99] See Sewell, above n 30, 73-7.

[100] Ibid 73-4.

[101] Ibid 75.

[102] Ibid 76-7.

[103] Ibid 77.

[104] For example, a corporeal analysis like the one conducted here would
proffer the explanation that the discursive construction of the male
heterosexual body in the legal narratives of the HAD facilitates the
conflation of sexual acts with sexual identity, given that where a male
body is penetrated the one who penetrates that body instantly becomes
pathologised as a predatory penetrator, a dangerous monster and outcast.

[105] Sewell, above n 30, 73.

[106] New South Wales Attorney General’s Working Party on the Review of the
Homosexual Advance Defence, above n 37, [6.5]-[6.7]. See above n 31 for
references to comparable state provisions.

[107] Helen Brown, ‘Provocation as a Defence to Murder: To Abolish or To
Reform?’ (1999) 12 Australian Feminist Law Journal 137, 140.

[108] See also Chen, above n 23, 230-3.

[109] Compare the following view with the abolitionist arguments discussed
in Section IV, Part D, infra: ‘Abolition is not advocated because most
heat-of-passion killings of males [sic] victims by male offenders do not
revolve around the participants [sic] sex, gender and or sexual
orientation’ (Ibid 231). With respect, the paradigmatic provocation
scenario adverted to here revolves around nothing if not the sex, gender
and sexuality of the participants. That abolitionist arguments are almost
exclusively directed towards eradicating male violence against women should
not derogate from the obligation to eradicate all forms of gendered
violence, for the legitimation of masculinist violence in all its forms
must be the aim of a progressive legal strategy. Male-to-male violence and
its legal rationalisation has significant discursive consequences.

[110] Obviously, the only source of information regarding the victim and
his actions is the defendant. See Johnston, above n 28, 1166. In a feminist
context, see Jenny Morgan, ‘Dead Women Tell No Tales, Tales are Told About
Them’ (1997) 21 Melbourne University Law Review 237.

[111] See, for example, New South Wales Attorney General’s Working Party on
the Review of the Homosexual Advance Defence, above n 37, [4.16], [5.12].

[112] Alternatively, as per the strategy adopted in Green, the defence may
rely on the discursive linkage of homosexuality and paedophilia. On this,
see Ben Golder, ‘‘[I]t forced me to open more than I could bear’: HAD,
Paedophilia, and the Discursive Limits of the (Male Heterosexual) Body’
(Paper presented at the 11th International Conference of the Law and
Literature Association of Australia, Melbourne, 29 November-1 December
2002) (Copy on file with author).

[113] Adrian Howe, ‘Provoking Polemic – Provoked Killings and the Ethical
Paradoxes of the Postmodern Feminist Condition’ (2002) 10 Feminist Legal
Studies 39, 39.

[114] For example, see Adrian Howe, ‘Homosexual Advances in Law: Murderous
Excuse, Pluralised Ignorance and the Privilege of Unknowing’ in Carl
Stychin and Didi Herman (eds), Sexuality in the Legal Arena (2000); Howe,
above n 10; Howe, above n 92; Ibid. Interestingly, by no means all those
who have identified the defence’s patent gender bias explicitly adopt a
feminist approach. For example, see Jeremy Horder, Provocation and
Responsibility (1992); Joshua Dressler, ‘When “Heterosexual” Men Kill
“Homosexual” Men: Reflections on Provocation Law, Sexual Advances and the
“Reasonable Man” Standard’ (1995) 85 Journal of Criminal Law and
Criminology 726. Note that Dressler is even a supporter of the provocation
defence.

[115] The common law has in this context traditionally viewed premeditated
killing as more culpable than a sudden act committed in passion. See New
South Wales Law Reform Commission, above n 39, 64-5.

[116] Hence, the reform suggestion proposed by Brown, above n 107, 140.

[117] For a summary of some of this recent case law, refer to Howe, above n
10, 357-9. Note also the facts of the High Court case, Stingel, where the
defendant allegedly lost control of his actions upon finding his
ex-girlfriend engaging in sexual activities with another man in a car.

[118] There is a sizeable critical literature devoted to the Battered Woman
Syndrome (‘the BWS’). Unfortunately, time and space constraints preclude a
fuller discussion here, but the important point to note is that the attempt
to utilise the BWS to circumvent the gendered rules of provocation and
self-defence law has met with criticism from within legal feminist circles.
This criticism claims, inter alia, that the BWS pathologises women’s
experiences of victimisation. For a useful discussion, see Julie Stubbs and
Julia Tolmie, ‘Race, Gender, and the Battered Woman Syndrome: An Australian
Case Study’ (1995) 8 Canadian Journal of Women and the Law 122.

[119] Perhaps it is more accurate to state that the decision to abolish the
defence of provocation is a conclusion increasingly arrived at by law
reform bodies, although perhaps one not entirely motivated by feminist
considerations. For instance, see Model Criminal Code Officers Committee of
the Standing Committee of Attorneys-General, above n 39. Recently, the ACT
Government released a discussion paper placing the defence of provocation
under review. See, Department of Justice and Community Safety, Gay,
Lesbian, Bisexual, Transgender and Intersex People in the ACT: An Issues
Paper (2003), 21-2. This paper discusses, at 21, previous Australian and
New Zealand law reform bodies which have advocated abolition.

[120] See the Criminal Code Amendment (Abolition of Defence of Provocation)
Act 2003 (Tas).

[121] It is perhaps misleading to refer to the abolitionist strategy as a
strategy explicitly deployed to remove the HAD. This formulation may
actually be ‘back-to-front’. Indeed, as Howe notes, the example of the HAD
simply presents (yet) another reason to abolish the defence of provocation:
‘The “discovery” of the operation of HAD in Australia provides an “excuse”
to revisit the provocation defence in order to reinforce my argument that
provocation operates as a deeply sexed excuse for murder and should be
abolished’. See Howe, above n 10, 337.

[122] The abolition of the defence of provocation is still a useful
strategy. As the discussion illustrates, the defence is clearly gender
biased and its abolition would represent an important gain. Rather, the
crucial point is that legal solutions cannot be pursued outside of the
context of a wider discursive contesting of the construction of the body in
legal discourse.

[123] See the Appendix at the conclusion of Sewell, above n 30, 80-1, for a
list of recent self-defence cases.

[124] This is perhaps a more apt criticism as it applies to the reforms
discussed in, respectively, Parts A, B, and C, of Section IV.

[125] For a classic exposition of this argument, see Smart, above n 22.

[126] Johnston, above n 28, 1182 (emphasis added).

[127] Ibid 1181.

[128] Naffine, above n 55, 91.

[129] Jennifer Nedelsky, ‘Law, Boundaries, and the Bounded Self’ (1990) 30
Representations 162, 162.

[130] The concept of a ‘constitutive outside’, much employed in
poststructuralist writings, is often attributed to Jacques Derrida. See
Butler, above n 46, 20. It is used here to signify an excluded domain of
objects whose exclusion constitutes the unity of a primary domain. For
example, the concept of the ‘human’ depends structurally on correlative
concepts of the ‘not-human’, which have historically included women
(non-men), people of non-white backgrounds, non-heterosexually-identifying
people, and so forth.

[131] Lawrence et al v Texas 539 US_(2003), 1 (per Kennedy J) (‘Lawrence’).

[132] Lawrence is an interesting example of how liberal jurisprudence –
here, the right to privacy – is employed to resolve a broader, discursive
political problem. As the discussion in Section IV, infra, demonstrates the
significant long-term drawbacks of such a strategy offset the short-term
gains.

[133] See the discussion in Naffine, above n 55, 91-3.

[134] Note that, as in all law reform projects, care must be given to
addressing the civil liberties ramifications of the project. Any project
will have unforeseen legal consequences which will need to be addressed or
recuperated in some way.

[135] See Lise Gotell, ‘Litigating Feminist “Truth”: An Antifoundationalist
Critique’ (1995) 4 Social and Legal Studies 99.

[136] For an example of the prevailing judicial orthodoxy, taken from the
extra-curial writings of the High Court’s newest appointee, see Justice
Dyson Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003)
47 Quadrant 9.