Sydney Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Sydney Law Review |
|
JENNI MILLBANK[*]
The propensity of human beings – of all colours, nationalities and national backgrounds – to distrust, fear or dislike those whose appearance, habits or language they find alien is so widespread it seems likely to be with us always.Editorial in The Australian Newspaper, claiming that the National Inquiry into Racist Violence Report was ‘melodramatic’ and ‘hysterical’.[1]Yeah, I killed him, but he did worse to me
Mr Green[2] after killing his friend Don Gillies by stabbing him several times and bashing him up to 35 times around the head in response to a ‘persistent’ but ‘non-violent’ pass.[3]
Gail Mason and Steve Tomsen’s collection, Homophobic Violence, is the first of its kind in Australia and a vital resource in an area that has been spectacularly overlooked until very recently. Mobilisation against homophobic violence has truly been a self-help project for lesbians and gay men.[4] Chris Puplick points out in the foreword to this book that the National Committee on Violence noted in 1990 that there was very little information available on homophobic violence[5] – still, none was sought until gay and lesbian community groups themselves undertook surveys to demonstrate the severity of the problem. These small scale community surveys undertaken by the Sydney based Anti-Violence Project of the Gay and Lesbian Rights Lobby of NSW (AVP), the Adelaide Community Action Group and the Melbourne based Gay and Lesbians Against Discrimination (GLAD) between 1990 and 1994, provided a wealth of information and were a major impetus in generating institutional concern (among the police, for example) about homophobic violence.[6]
Tomsen notes that:
In crime research and in literature on criminal law, gay men and other sexual minorities have been understood as criminals, the perpetrators of ‘homosexual offences’, who violate anti-sodomy laws and public order statutes. By contrast there has been a complete dearth of Australian research on violence against these groups, from either university or official state sources.[7]
Elsewhere he adds, “Whether from ignorance, conservatism or conscious homophobia, funding bodies, agencies and bureaux have consistently put this issue low on their research agendas” despite “growing evidence that members of this minority group experience disproportionately high levels of violence, much of it in the form of hate crime”.[8]
Homophobic Violence is comprised of papers that were delivered at a conference in 1995 hosted by the Australian Institute of Criminology on violence against lesbians and gay men. The chapters in the volume reflect a selection of papers from community organisations and activists, official bodies and key researchers covering areas such as schools (Griffin), human rights (Ruthchild), homelessness (Irwin, Gregoric and Winter), gender differentials in experiences of violence (Mason), the ideological violence of anti-discrimination statutes (Chapman), the construction of “deviant” sexuality in the trials of those who have killed gay or bisexual men (George), violence and Aids (Sarre and Tomsen), police practices (Baird, Thompson) and the biases of criminology itself as a discipline (Tomsen). Mason and Tomsen explain that “the common thread that runs through these chapters is not just the problem of violence, but fundamentally the concept of homophobia”.[9] The collection, they say, aims to show how “violence and harassment is encouraged and filtered through institutional heterosexism that pervades contemporary Australian society” but also to acknowledge and illustrate how “victimisation takes different forms and involves uneven levels of risk within the gay and lesbian communities”.[10]
Gail Mason’s chapter on gender differences in the experience of violence is a particularly important contribution. She notes that: “Most research that attempts to explain heterosexed violence, to look for its causes or consequences (the majority of which has been undertaken in the United States), focuses on gay men”.[11] “Gay bashing” in its popularly understood sense usually refers to an isolated assault in a public place by unknown assailants, often in a group, upon a person perceived to be homosexual, usually a gay man. Within this paradigm of public violence lesbians have often been seen to suffer “less” and their experiences have not been fully explored.[12] Importantly in the 1992 lesbian-specific Anti-Violence Project study and the later Melbourne and Adelaide surveys, the gendered nature of homophobic violence in Australia was also explored. Mason notes that these studies suggest that “lesbians may be more likely to experience violence committed by older men, men acting alone, and men who are acquainted with the woman. Such violence may take place within a home or work environment and may involve an ongoing campaign of harassment”.[13] Women are also far more vulnerable to attack in their own and other’s homes than men are. Such differences in women’s experience of homophobic violence have been noted but barely explored in overseas research, and so Mason’s analysis of the Australian studies and her follow-up qualitative interviews of 73 women is groundbreaking research. Her interviews revealed that workplace “harassment” is often not distinct from “violence” and that discrimination is interwoven with homophobic attacks and sexual harassment. Through the accounts of violence given by her interviewees, Mason finds that there is “a crisscrossing of both gender and sexuality that precludes any assumption that such incidents are only about a male boss exerting his power over a female employee, or a heterosexual boss attempting to exert his privilege over a homosexual worker. Such incidents are about both sexuality and gender”.[14]
Another important issue which receives thorough and thoughtful treatment in both Homophobic Violence and Faces of Hate is the use of provocation and self defence by accused on trial for the murder of gay and bisexual men. Claims of extreme affront, usually as the result of an alleged pass, sometimes of an attempted – but notably never completed – sexual assault, are now a common thread in murder trials when the victim was gay (as well as in cases where he was not apparently gay but had become acquainted with the killer through sex shops and other “grey area” venues).[15] The high number of such cases in NSW, and the consequent level of media coverage and concern among lesbian and gay communities[16] was such that the NSW Attorney General formed a Working Party in 1995 to review the “Homosexual Advance Defence”. A Discussion Paper was published in 1996 as a result, recommending careful guidance of judges’ summing up to direct juries that homosexual advances, if proven, were to be weighted as equal in seriousness to a heterosexual advance on a woman. The Discussion Paper also endorsed community education in the area.
Steve Tomsen has argued that the “homosexual advance” defence:
denigrates victims and locates the explanation for their killing in their own sexual desire, not in a generally homophobic culture. It falsely locates sole responsibility for homophobic murders in the temperament of individual offenders. The final result is a simultaneous disavowal and approval of this form of violence.[17] In Tomsen’s chapter in Faces of Hate, he places a broad-ranging and readily accessible discussion of some of the cases within a broader framework of issues of “male honour”, homophobic violence and community strategies of resistance. Tomsen argues that:
The passivity and emasculation implied by homosexual touching or objectification can bring a sense of disgrace that might be quickly overcome with retaliatory violence. The explanations offered by many killers suggest an extreme sensitivity to any such perceived threat to their sexual identity. These include alleged acts of touching or even sexual eyeing, as in the case of one victim, John Milicevic, who was killed by being stabbed in the face for allegedly staring at the offender and ‘licking his lips like a faggot’ as he walked through a city park. These exaggerated notions of male honour appear to play a critical role in the motivations of many killers. More disturbingly, they can also be given a dubiously high level of acceptance in some courtrooms. Warding off the dishonour that can flow from a homosexual pass seems to be a concern that is distinct from either genuinely fearing or fighting off an actual sexual assault.[18]
This chapter was written prior to the High Court’s decision in Green v R, which provides a wrenching illustration of many of the issues discussed by Tomsen. In that case, Malcolm Green had bashed and stabbed his friend Don Gillies to death after Gillies climbed into bed with him, rubbed his side and thigh and reached for his crotch.[19] In his judgment for the majority in the NSW Court of Appeal Priestley JA emphasised that the deceased “neither hurt the appellant nor put him in any danger of being hurt; the touching was amorous, not forceful”[20] and held no reasonable jury could have found that an ordinary person in the position of the accused could have been induced to lose their self control so as to form an intent to kill on the basis of such conduct.[21] Priestley’s judgment was a strong statement on this issue, and appeared likely to lead NSW courts away from the inclination to treat the killers of gay men as readily provoked by a pass. That decision has still not been reported, however, and has now been overturned by the High Court,[22] which has issued what many commentators regard as a damaging and dangerous decision.[23]
In the High Court decision, while there are many pages consumed with lengthy and technocratic discussion of the exact statutory definition of provocation and the subjective/objective matrix, much of the underlying tenor of discussion is deeply revealing, and the notions of male honour raised by Tomsen receive a resounding stamp of approval from Justices Brennan, McHugh and Toohey in the majority. The minority judgments of Gummow J and Kirby J are tersely and lengthily contextual respectively, and provide a stunning contrast in their approach to violence and sexuality.[24] It is noteworthy that Kirby J refers in his judgement to Homophobic Violence, as well as to other papers by both Mason and Tomsen. Brennan CJ and Kirby J in their polar approaches to the issues raised in Green, bear quoting.
In Brennan CJ’s view:
The real sting of the provocation could have been found not in the force used by the deceased but in his attempt to violate the sexual integrity of a man who had trusted him as a friend ... Smart J in dissent [NSW CA] described the deceased’s actions, as narrated by the appellant, as revolting. [Smart] added: ‘All this was bad enough but there were further factors, namely, the deceased’s betrayal of the relationship of trust, dependency, friendship and his abuse of his hospitality. he was trying to coerce the appellant into providing him (the deceased) with sexual gratification ....
The provocation was of a very grave kind. It must have been a terrifying experience for the appellant when the deceased persisted. The grabbing and persistence are critical.
Some ordinary men would feel great revulsion at the homosexual advances being persisted with in the circumstances and could be induced to so far lose their selfcontrol as to form the intention to inflict grievous bodily harm. They would regard it as a serious and gross violation of their body and their person ... The deceased’s actions had to be stopped.’
... A reasonable jury might have come to the conclusion that an ordinary person, who was provoked to the degree that the applicant was provoked, could have formed an intent to kill or inflict grievous bodily harm upon the deceased. ... A juryman or jurywoman would not be unreasonable because he or she might accept that the appellant found the deceased’s conduct ‘revolting’ rather than ‘amorous’.[25]
Revolting, violation, revulsion, terrifying, grave and gross are not words that one can readily imagine Justices Brennan or Smart uttering in, say, a sexual harassment case where a clothed adult woman was grabbed by her boss on the shoulder and thigh (and are even less readily imaginable if she had retaliated with lethal force.) Then would Justice Smart say with such conviction that, “The deceased’s actions had to be stopped”? What stuns me about this passage is that Smart J seems to see only one way of stopping them, and that Brennan J quotes him with such uncritical approval. Brennan J replaces “amorous” with “revolting” as though this is an argument in itself for a jury who didn’t find provocation to now be imagined as likely to do so. The reasonable jury appears here as a reasonable facsimile of the judges who imagine them, and on the majority view in the High Court are violently defensive of male heterosexuality.
Kirby J delivers the only judgment to refer to the burgeoning literature on the issues, and to research from lesbian and gay viewpoints. It is also noteworthy that Kirby J is the only judge to consider the symbolic impact of the court’s decision in this case, and its discursive value in a community in which violence against lesbians and gay men remains extremely high. He writes in part:
In my view, the ‘ordinary person’ in Australian society today is not so homophobic as to respond to a non-violent sexual advance by a homosexual person as to form an intent to kill or to inflict grievous bodily harm. He or she might, depending on the circumstances, be embarrassed; treat it first as a bad joke; be hurt; insulted. He or she might react with the strong language of protest; might use as much physical force as was necessary to effect an escape; and where absolutely necessary assault the persistent perpetrator to secure escape.[26]
and
If every woman who was the subject of a ‘gentle’, ‘non-aggressive’ although persistent sexual advance, in a comparable situation to that described in the evidence in this case could respond with brutal violence ... on the male importuning her, and then claim provocation after a homicide, the law of provocation would be sorely tested and undesirably extended. A neutral and equal response to the meaning of the section requires the application of the same objective standard to the measure of self-control which the law assumes, and enforces, in an unwanted sexual approach by a man to a man. Such an approach may be ‘revolting’ to some. Any unwanted sexual advance, heterosexual or homosexual, can be offensive. It may intrude on sexual integrity in an objectionable way. But this court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill or inflict grievous bodily harm. Such a message unacceptably condones serious violence ...[27]
As these versions of the same killing make clear, the law of provocation in such cases produces markedly different results depending on one’s view of the facts.[28] And the facts, always from the killer’s point of view, are viewed through a cultural prism that readily renders gay men’s sexuality predatory and terrifying. Allen George’s chapter in Homophobic Violence, provides a detailed analysis of the story-telling which took place in two of the NSW trials,[29] prior to Green. Through this chapter, George interrogates many of the discursive elements which are reproduced with so little apparent examination by the majority of the High Court in Green. Through his examination of the rhetoric in the trial transcripts, George notes the construction of the victim as “deviant” and killers as “normal” guys (so normal in fact that they are not homophobic, as they are not like those hooligans who are the “real” gay-bashers) and offers a complex interpretation of the role of factual presentation in such cases. This engagement in context is sorely missed in the High Court majority in Green, and I can only hope that some more members of the judiciary read Homophobic Violence before the next gay murder case arises.
The collection of essays in Chris Cunneen, David Fraser and Stephen Tomsen’s Faces of Hate is also the first of its kind in Australia; an important, and unfortunately, timely contribution at this point in Australia’s history when hate crime and racism appear to be on the increase. The collection covers chapters on immigration, nationalism and anti-Asian racism (White), antisemitism (Nemes) and holocaust denial (Fraser), violence against Arab Australians (Fraser, Melhem and Yacoub), vilification of Aboriginal and Torres Strait Islander people (Cunneen), homophobic violence (Tomsen, Mason), the racist far-right (Greason) and legal responses to hate speech (Jones).
The editors note that they faced an inherent difficulty in gathering together such a collection on hate crime in that:
On the surface, there is very little which might seem to unite these ‘groups’ except their shared experiences as victims of crimes of hate and violence. While they may share these experiences at an existential level, it is also clearly the case that these experiences are in many ways different.[30] Thus it is a much more diverse, even disparate, collection than Homophobic Violence, yet the broad range of issues discussed is united by an overarching thread: that of identity and the “creation of these communities as Other and hence as targets for acts of hatred”.31 The range of such constructions of “otherness” and illustrations of their effects, is one of the values of this collection. As is also noted in Homophobic Violence, the law and legal agencies have not necessarily been either swift or efficient in their response to citizens who are subjected to bias-motivated harassment and violence. In their introduction the editors note that the law has until very recently taken a stance of indifference to the emotional content of hate crime:
A crime aimed at the personal integrity or property interests of a member of a minority group is no different, as a matter of principle, for the criminal justice system than any other crime. Thus, while ‘Hate’ may well be the most important factor for both the victim and the perpetrator, it has historically been a matter of principled indifference for the official actors in the formal criminal justice system, from the police charged with the investigation to the judge or jury who must determine whether the act was committed with the requisite ‘criminal intent’.[32]
A number of the chapters are notably different from much academic writing in that they register the author’s own experiences, locating such violence as something which happens to “me” and “us” as well as the Other: “them”. To find a place in law where emotion matters is a difficult task. Melinda Jones’ chapter on legal regimes which deal with hate speech, although a comprehensive “users guide” is also an indictment of the ineffectual nature of much available legal “protection” in Australia for non-physical harm. David Fraser’s chapter also notes a dismal lack of success in prosecuting hate speech abroad.
Irene Nemes’ chapter on anti-semitism draws together many recent incidents to give a sense of the depth of antisemitic hostility in Australia in the 1990s; a hostility that may not seem as apparent as, for instance, hostility to indigenous Australians,[33] but is just as pernicious. In contrast to the wealth of detail in Nemes’ chapter, David Fraser focuses upon just a few incidents of holocaust denial to ground his more densely theoretical discussion of how such speech is assaultative in nature and how it has recently colonised the role of “truth” and “inquiry” in public discourse. Fraser deconstructs legal values of purported neutrality and is especially incisive on that old chestnut, “free speech”. It is both ironic and distressing that one of the most blatant pieces of holocaust denial literature I have ever seen should be sent as a response to this book about hate. The letter, sent to the publisher of Faces of Hate, from a group mentioned in the volume as an ultra-right “think [sic] tank”, bears out many of Fraser’s remarks. It says, among other things:
May I suggest that in future you open your mind to such moral concepts as truth... our work fearlessly focuses on taboo topics which the university historians dare not touch for fear of losing their jobs. Such intellectual work has nothing to do with hate – unless you of course are the hater of truth.
... as far as we are concerned there is no physical evidence to prove that these gas chambers existed. To the contrary evidence has now been published that the homicidal gas chamber shown to millions of tourists at Auschwitz over a period of 40 years is in fact a fraud. Are you going to discredit your professional integrity by continuing to tell lies about this fraudulent act? If you do, then you are only hurting yourself...[34]
Denial is a powerful defence mechanism, but also, clearly, a powerful method of attack as well.
Cunneen notes early in his chapter that a major Australian newspaper responded to the Racist Violence report, which outlined massive and widespread violence in Australia (with disturbingly high levels of that violence originating from state actors such as police and prison guards) by labelling it “melodramatic” and “hysterical”. Thus, the “irrationality of racism disappears and is replaced by the irrationality of anti-racism”.[35] Like holocaust denial, like claims of an “aboriginal industry”, like depictions of lesbians as murderous and gay men as a wealthy corrupt elite of child-abusers there is a cruel reversal in operation. Oppressed and disadvantaged groups are robbed even of the veracity of their experience, portrayed as privileged, grasping and whingeing, or hysterical, and thus as deserving of yet further attack.
Cunneen’s exploration of denial as the basis for these cruel reversals is incisive:
Hysteria also implies the repression of something traumatic: some distressing fact or event which must be kept hidden. ... It seems if we were to use the notion of hysteria as applied to racist behaviour, we might further think through the history of the coloniser’s collective ‘traumatic memory’ and its repression from our historical consciousness.
What are the memories/events of the past within Australia that must be repressed from our collective conscience? Is it the killings, the poisonings, the denial of humanity, the concentration camps and forced removals, broken promises and injustices? ... I was reminded how strong the need for denial is when the then Queensland Premier, Mr Wayne Goss, ordered references to the invasion of 1788 to be removed from teachers’ notes in high schools, preferring instead the term ‘settlement’ ...
There is a certain irony, then, that the therapy for hysteria requires that the person remember the traumatic event. Yet ... rather than collective remembering, we have the process of projection and denial. Projection of hysteria onto those who discuss the nature and prevalence of racism enables the denial of the existence of racism.[36]
The chapter continues with a damning analysis of the role the media has played in vilifying indigenous Australians; a role that has in my view paved the way for the far-right’s current rise to prominence, largely on a wave of anti-Aboriginal sentiment.
David Greason’s chapter outlining the history, ideology and activities of “Australia’s racist far-Right” is compulsory reading for anyone who follows the activities of Pauline Hanson and her One Nation political party. Many of the pot pouri of “racist/paranoid” ideas[37] espoused by groups Greason discusses have appeared in Hanson’s mouth,[38] links have been unearthed between One Nation and some of these groups (such as the “Freedom Scouts”) and now it seems only a matter of time before more are exposed.
Irene Nemes has said that, “Australians often take refuge in the relative comfort of this not being America ...” but such comfort may not last for much longer as hate-based ideologies move, if not to centre stage, then at least to main stage in the Australian political scene.[39] It remains to be seen whether we will truly confront the hate mongers among us, or be able to divert Australia from the divisive, scape-goat littered path it currently seems set on. These two collections are vital steps in the effort to steer a different course.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/SydLawRw/1998/22.html