After provocation: reconciling the legacy of the Homosexual Advance Defence in Occupied Australia

In 2020, South Australia (SA) became the last Australian jurisdiction to overturn the Homosexual Advance Defence (HAD) when it reformed the law of provocation. Since the 1990s and the peak of HIV/AIDS discrimination, HAD has been used across Australia and the common law world as a partial defence an accused person could invoke to reduce charges of murder to those of manslaughter. The legal reform followed the 2016 High Court of Australia case of Lindsay, centring on an Indigenous accused person who killed in the aftermath of a white man’s so-called ‘homosexual advance.' Informed by Carol Smart’s formative analysis of the power of law laying in its “claim to speak the truth, to ‘know’ and therefore control” this chapter considers the legacy of Lindsay in the context of the entrenched violence of a country characterised by ruthless colonial relationships to both homosexuality and the sexual exploitation of First Peoples. It aims to extend our understandings of what sexual violence entails-epistemically and physically-to consider lethal outcomes of the state-sponsored violence of homophobia, the vestiges of which endure long since the intense criminalisation of men’s same-sex desire throughout the 20th century.