Fitzgerald, Andrew --- "Australia's Criminal Justice System Fails Lesbians and Gay Men" [1996] MurdochUeJlLaw 13; (1996) 3(2) Murdoch University Electronic Journal of Law

Australia's Criminal Justice System Fails Lesbians and Gay Men Author: Andrew Fitzgerald Student, School of Law, Murdoch University Issue: Volume 3, Number 2 (July 1996) Introduction This paper discusses Australia's criminal justice system and the way it relates to the 'sexual orientation' of a party. Research is presented which seeks to underscore the extent of the difficulties faced by lesbian and gay men within that system. Exam ination is made of the broader social context within which Australia's criminal justice system operates. This process will highlight some of the dynamics which operate to subordinate lesbians and gay men generally and which assist in shaping Australia's legal system. Discussion will then be focused on theoretical analysis of the concept of homosexuality and social and legal discourse in relation to 'hate crimes' against lesbians and gay men. Finally, a conclusion is offered that seeks, very briefly, to put forward possible solutions which would improve the chances for homosexuals to achieve similar standards of justice to those which are considered immutable by the wider heterosexual population. The New South Wales Police Gay and Lesbian Unit has identified twenty four cases of 'hate killings' between 1988 and 1994 in which the catalyst for the fatal violence was the sexual orientation of the victim. This figure accounted for 25% of all stranger murders during the same period.[1] The Lesbian and Gay Anti-Violence Project has documented the details of many hate killing and hate assault cases against gay men: Police v Leonard:[2] Stephen Dempsey was killed at a beat[3] in Narrabeen New South Wales (17/11/94). It was claimed that Dempsey had sexually propositioned the defendant. The defendant shot Dempsey in the neck then in the chest with arrows. Dempseys' body was dismembered and dumped. Defendant on remand. R v Bonner (NSW SC):[4] Verdict on 19/5/95 - Murder and manslaughter acquittal. Allegedly, deceased made homosexual advance to accused at a hotel and later at the accused's home. They argued, wrestled and the deceased told the a ccused of his desire to have sex with him. Accused stabbed deceased in the neck. Deceased died of blood loss whilst trying to escape from accused's home. Dock statement used by accused.[5] R v Dunn (NSW SC):[6] Verdict in April 1995 - Claim by 20 year old male of self-defence and homosexual panic, in what was described by police as a gruesome murder in an isolated cycleway. Crown offered evidence that defendant had gone "poofter bashing" when he encountered his victim. Jury acquitted accused of murder and convicted him of manslaughter. R v Triffit (Tas SC):[7] Defendant who pleaded guilty to bashing victim outside public toilet in June 1994. Defendant alleged that victim "was perving on him". Judge found that accused "not generally hostile towards homosexuals" and that he exhibited contrition for his actions. Defendant sentenced [6] months suspended gaol sentence. In relation to the prevalence of anti-lesbian and gay male violence, Gay Men and Lesbians Against Discrimination (GLAD) surveyed 1000 lesbians and gay men in Victoria, in order to determine the degree of violence and discrimination experienced as a direct consequence of sexual orientation.[8] In relation to violence the survey found that: 70% of those surveyed had experienced physical abuse, threats of violence or verbal abuse in a public place; 36% of women and 39% of men reported being threatened with violence; 11% of women and 20% of men reported being assaulted; 12% of women and 18% of men reported being harassed by the police, including 6% of men and 2% of women who reported being physically assaulted by the police. The survey concluded that verbal abuse and bashings are part of being gay or lesbian in a public place. The GLAD survey only documented public violence. As a measure of the relationship between lesbians, gay men and the police in South Australia, Lesbian and Gay Men Community Action (SA) conducted the Police & You survey of 57 respondents.[9] The survey concerned incidents where p olice assistance was required and incidents where police assistance was required but not sought. 19 respondents were women, 38 were men. 18 women were lesbian and one was bisexual. 33 men were gay and 6 were bisexual. As a result of the survey the thr ee principal concerns of LGMCA were: The high number of respondents to the survey, who reported anti-gay/lesbian hate crime; (49%) The high level of non-contact with police by victims of crime 44% of respondents were victims of crime or otherwise required police assistance but did not contact the police. The rate of non-reporting was much higher among those respondents when discussi ng crimes where their sexuality was of central concern (50%); The poor image of police held by many respondents 79% of respondents who required police assistance delayed or did not contact the police, and indicated this was because they had concerns about police attitudes to their sexuality; The behaviour of police 23% of respondents who sought contact with the police reported an interaction where police behaviour was homophobic. In 64% of incidents where police initiated contact, respondents reported experiencing homophobic harassment from the police. The advent and transmission of HIV/AIDS has led to an increase in the incidence of violence against gay men.[10] The nature of hate crimes against lesbians and gay men tends to perpetuate prejudice and violence against the same people. The seriousness of this type of crime is realised in the potential it has to engender fear in all lesbians and gay men as a class o f people.[11] These findings indicate that the criminal justice system fails lesbians and gay men. The challenge is to work towards recognising the characteristics and understanding the reasons, extent and implications of these systemic failures. This process involve s more than just an analysis of legal proceedings involving lesbians and gay men or an analysis of the nature of legal processes that often lead to the dismissal and acquittal of defendants accused of violence against lesbian and gay men. It requires an appreciation of the inter-relationships between social, political, religious, cultural and legal dynamics that work together to marginalise lesbians and gay men in Australian society. Anti lesbian/gay violence is a problem with its roots in the way in which Australian society views homosexuality. Homosexuality is ridiculed, feared, despised and surrounded by myth ... negative attitudes towards lesbians and gay men are the rule rather than the exception.[12] Australia's criminal justice system reflects the broader societal dynamics within which it operates. It plays an active role in placing the rights, concerns and fears of lesbians and gay men in an inferior position to those of heterosexuals. Further, Au stralia's criminal justice system plays a key role in legitimising physical and sexual violence against lesbians and gay men. In order to develop a framework of analysis it is necessary to identify the variance of interconnecting themes that work together to subordinate lesbians and gay men. What are the networks of social interactions that makes them targets of emotional, verb al and physical abuse. This process can then allow for a focus grounded in context which discusses how Australian Courts have determined issues of physical and sexual violence against lesbians and gay men. Australian Society and Sexual Orientation The Editors of The Harvard Law Journal[13] argue that the legal community reflects broader social attitudes towards homosexuality which vary along two dimensions. Firstly, individuals have differing opinions on gay relationships in relation to individual identity. Secondly, social attitudes vary depending on individuals' reactions to homosexuality. These two dimensions encapsulate a range of theories or views which interact to determine whether sexual orientation is viewed as part of identity and whether gay men are viewed positively, with indifference or negatively. The Editors argue that the rang e of view "types" can be artificially divided into four competing conceptions of homosexuality which are reflected in legislation, legal decision making, and legal scholarship. They are: the "sin" conception - Developed in the mid nineteenth century; deriving from religious interpretation and prevailed before modern concepts of heterosexuality and homosexuality existed. Almost all non-procreative or non-marital sexual activities are cons idered immoral and deserve criminal sanction. Its basis derives from an ideology proclaiming the fundamental nature of the family as the social and economic unit of society. This ideology rejects any notion of same sex families. the "illness" conception - Developed in the late nineteenth to mid twentieth century and promotes the view that homosexual activity is wrong and deviant and that such activity is symptomatic of sickness. In contrast to the sin conception, the sickness vi ew sees the desire to engage in homosexual activity as inferring in the individual's identity. It emerged as science and medicine eclipsed religion as a major influence in society. Homosexuality was defined for the first time, which categorised an ident ifiable group. The concept of homosexual persons as a distinct group led to differentiation among various immoral sexual activities; and the development of legislative sanctions for private and public homosexual acts and age limits placed on sexual activ ity. the "neutral difference" conception - The development of a body of theory with the view that homosexuals either deserve legal protection or should not be legally penalised for their sexual orientation. This view 'could not emerge until both the concept o f homosexuality and a group of people who defined themselves as homosexual came into existence'. Social and economic development inspired the formation of gay communities. In the late nineteenth century the increasing urbanisation of communities caused by advances in industrialisation 'decreased the importance of family units in determining morality and law'. These changes allowed individuals to choose same-sex relationships instead of marrying. The release of research into homosexuality and the devel opment of gay communities led to greater social awareness of homosexual activity and the development of organised opposition to it. The neutral difference conception, from the early 1960s grew out of attempts to counteract homophobic groups and to fight for the protection of civil rights of lesbians and gay men. The spread of "gay liberation" had legislative effects across the world; beginning in the US in the 1960s and reaching Australia in the late 1970s, when State laws were amended to decriminalise homosexual acts in private.[14] More recently, five jurisdictions in Australia have made reforms to offer s ome form of legislative protection and remedy against discrimination on the basis of sexuality.[15] the "social construct" conception - Proponents of such theories reject the neutral difference conception of homosexuality. They argue that basing legal protection for gay men on the very fact of their sexual orientation reinforces the very repression sou ght to be removed. They argue that the gender of those to whom an individual is attracted becomes important only if society attaches importance to it; that labelling individuals on the gender of their sexual partners reinforces prejudice by making sexual orientation appear fundamental to their identity. Adherents of the social construct conception of homosexuality would advocate that legislation, legal decisions and legal commentary do not indirectly discriminate on the basis of sexual orientation. The y believe that concentration on 'difference' perpetuates stereotypes that lead to discrimination.[16] There is also theory which seeks to inform discourse on violence against gay men. Steve Tomsen draws attention to research which investigates the relationship between "male honour" and "heterosexual identity".[17] Tomsen argues that the preservation of male honour has played a critical role in motivating actions and rationalisations for violence against gay men: In a very commonplace style of masculinity, aggression and violence are viewed as the most appropriate response to a sexual advance by another male. Masculine heterosexual identity is generally built around ensuring the sanctity of the body, with rigid l imits imposed on the circumstances and socially admitted forms of male physical contact.[18] Homosexual touching or objectification implies 'passivity and emasculation' bringing a sense of disgrace which is most easily overcome with retaliatory violence. Concern about masculine identity and honour appears to motivate many of the murderers of gay victims in cases where provocation and self-defence are argued. This logic has received judicial sanction. In R v Turner (1994) Grove J. while declaring his disapproval of the killer's over-reaction to an alleged sexual advance by the victim, he did go on to indicate some support for the killer's actions in terms of the notion of the protection of male honour. Tomsen goes on to conclude that the historical process of male heterosexual conceptions that dominate the direction and the role of the state and the legal system operate to express and protect heterosexual male identity: ... there is a traditional tie between the classic model of the free legal subject and liberal notions of male heterosexual identity built on the protection of honour in "private" social and sexual relations.[19] But there are problems associated with analysis, theories and conclusions derived from research which claim to speak about the lives of gay men and lesbians as if they exist as an homogenous group. A homogeneous homosexual community does not exist. Ther e are loose collections of overlapping communities normally divided by gender. Not all people who identify themselves as lesbian, bisexual, gay or transgendered identify with such communities or networks of interests. When I speak of the politics of silence, I don't just speak of the silence of gay and lesbian people for fifteen hundred years ... I want you to understand that silence is as much self-imposed as imposed by our enemies. We learn the message of their hatr ed all too well, and we choose the closet, hoping to protect ourselves. And that very invisibility is just what our enemies want, the silence that stunts our self-esteem.[20] There are many people who engage in homosexual behaviour who would not identify themselves as such and would possibly not even know that such communities exist.[21] This can mean that the formulation of common interests and polit ical activism by lesbians and gay men to achieve social justice and equal treatment in the criminal justice system can be difficult to achieve.[22] Social justice and equality are that much harder to achieve when many Australians believe that gay men and lesbians should not have the same rights to equality as other members of society. For instance, in an Australia wide survey conducted by Roy Morgan Research in 1989, 54% of Australians believed that homosexual couples should not receive the same level of social rights and benefits as heterosexual couples; 47% believed that it should not be illegal to discriminate against a person because they are ho mosexual; and 38% still believed that homosexual acts in private should be illegal.[23] Both US[24] and Australian[25] researchers believe that there are pervasive as well as overt links between the presence of homophobia and heterosexism in a society and the incidence of 'hate speech', ant i-gay hate crimes in the form of physical and sexual assault, and the murder of gay men. Steve Tomsen has drawn attention to the historic nature of mainstream political silence in relation to the murder of gay men in Australia. In New South Wales in the mid 1980s a series of savage attacks and murders in the Illawarra district of New South Wales ensued with minimal official concern. Tomsen comments that traditionally the media is only interested in gay focussed violence or murder when a victim is famou s or where the details can be manipulated to satisfy salacious commentary on gay lifestyles. Tomsen contrasts this situation with what he believes is a wider social disinterest in the violence perpetrated against lesbians and gay men.[26] Tomsen's position has credence when one considers the effort that mainstream political parties place on distancing themselves from any 'odium' attached to homosexual lifestyles. The Western Australian Labor Party, in its platform of policies and objectiv es, does not include the promotion of the rights of same-sex partners in its list of social justice measures to be implemented. The Western Australian media has assiduously failed to report the nature of continuing assaults against gay men and lesbians i n the Cultural Centre area of Perth; an area which provides a main thoroughfare between gay and lesbian venues. The historical nature of the power and influence evoked by religious bigotry continues to play a fundamental role in broader social views concerning homosexuality. The stranglehold that religious teaching has exercised to mould conceptions of morality ac tively prevents homosexuals from openly sharing fellowship in religious communities. In its extreme so called 'Christian' church leaders in Australia, such as the New South Wales Parliamentarian the Reverend Fred Nile, have ranted hysterically against wh at they see as the evil of the gay lifestyle. The largest organised religion in Australia, the Roman Catholic Church, persists with papal edicts which command all bishops of the Church to fight against all legislation that mandates gay and lesbian rights of any sort; especially the right to have children, natural or foster and to keep homosexuals away from Catholic schools or daycare centres.[27] Bigotry and homophobia continue to determine judgements in Australian courts. The case of R v Turner (1994)[28] is one of numerous examples, according to reports in the Gay and Lesbian media, that provides clear evidence of a co urt exercising legal principles inequitably to favour a defendant accused of murdering a gay man.[29] The trial resulted in a finding of manslaughter against the accused. Turner alleged that he was subjected to a sexual advance from his victim, Kevin Marsh, which resulted in a temporary loss of control. Turner's defence was based solely on the excuse of provocation.[30] In this case controversy surrounded whether the excuse of provocation was correctly applied by the jury. Provocation is comprised of a two component test: a subjective test and an objective test. The subjective test is used to establish if the act of pr ovocation by the victim was sufficient to cause a loss of self control in the accused. The objective test is used to determine whether or not the 'ordinary' person may have behaved in the same manner as the accused. This latter test requires that the ju ry attribute the characteristics and idioms of an accused to those of an 'ordinary' person. Factors such as age, sex, race etc., must be considered in light of all the circumstances in determining whether the accused's conduct matched that of the ordinar y person. Allen George argues that the jury accepted the factors which Turner put forward as justifications for his loss of reason and subsequent action in killing his victim. Turners immaturity was considered by the judge as likely to be reflected in his inability to cope with the [alleged] sexual advances made towards him. The fact that Turner had been drinking and his fear of being trapped in the victims house were also factors affecting his mental state.[31] George points out that the legal narrative of homosexual provocation is most effective when supported by evidence which portrays the victim as perverted. The victim in this case was portrayed as a 'dirty old man' with a 'reputation' which the judge deter mined was deserved because pornographic magazines were found in his house and witnesses gave evidence of 'his disreputable' activities. Alternatively, Turner was portrayed as a young man who had work and came from a good family. Turner made full use of his unsworn dock statement, which provides an opportunity to give an unchallenged version of events, to convince the jury that the victim was a deviant.[32] The result of this case would be surprising were not the result of a whole context of dynamics outlined above. These dynamics operate to ensure that when sexual orientation is a factor that the criminal justice system must grapple with, it is prevented f rom determining blind justice to lesbians and gay men. Conclusion ... I'm not asking for political correctness, I'm asking you not to be an asshole ... [33] The solutions to violence and discrimination against lesbians and gay men are as diverse as the characteristics of systematic homophobia within Australia's criminal justice system and society generally. Essentially, the task is to remove the anti-homose xual bias in Australian society by challenging prejudicial attitudes towards homosexuals. Law reform can be a powerful message to the community. The criminalisation of homosexual acts in private should be wiped from statute books across Australia. The movement to introduce legislation which makes discrimination against homosexuals illegal should be extended to all states by being incorporated at a federal level. There should be anti-vilification legislation at a federal level which sends a clear messa ge to the community that hate speech will not be tolerated. In addition progress must be made which recognises and legitimates the rights of same sex couples in respect of family leave, superannuation and property rights. At a broader level greater research should be conducted to investigate the characteristics and solutions to lesbian and gay hate crimes. The personnel within the criminal justice system, police, lawyers, and judges etc., need to be educated, and discipli ned, to their responsibilities in relation to the quality of justice to which homosexuals are entitled. Bibliography Atkinson, M., (1992), 'Homosexual Law Reform' in University of Tasmania Law Review, Vol. 11, No. 1. Baired, B., Mason, K., Purcell, I., (1994), The Police and You: A Survey of Lesbian and Gay Men in South Australia, Lesbian and Gay Community Action, Adelaide. Dynes, W. R., Donaldson, S., (Eds), (1992), Homosexuality: Discrimination, Criminology, and the Law, Garland Publishing, New York. George, A., (1995), Homosexual Provocation: The Courtroom as an area of Gender Conflict in Australia (unpublished thesis, Dept of Sociology and Anthropology, University of Newcastle. Joseph, S., (1994), 'Gay Rights Under the ICCPR - Commentary on Toonen v. Australia', in University of Tasmania Law Review, Vol. 13, No. 2. Lesbian and Gay Anti-Violence Project, (1995), Forum on the "Homosexual Panic Defence" - 14/4/94, "Homosexual Panic Defence" - And Other Family Values, May, Sydney. Mason, G., (1993), 'Violence Against Lesbians and Gay Men', Trends and Issues, Australian Institute of Criminology, No. 2, November. Monette, P., (1995), Last Watch of the Night: Essays Too Personal and Otherwise, Abacus, London. Scahill, A., (1994), 'Can Hate Speech Be Free Speech', in Australasian Gay and Lesbian Law Journal, Vol. 4. Takach, R., (1994), 'Gay and Lesbian Inequality: The Anti-Vilification Measures', in Australasian Gay and Lesbian Law Journal, Vol. 4. The Editors of the Harvard Law Journal, (1989), Sexual Orientation and the Law, Harvard University Press, Massachusetts. Tomsen, S., (1994), 'Hatred, murder & male honour: Gay homicides and the "homosexual panic defence"', Criminology Australia, Vol. 6, No. 2, November. Wilson, P., (1994), 'Homosexual Law Reform in Australia' in Trends and Issues, Australian Institute of Criminology, No. 29, November. Notes [1] S. Tomsen, (1994), 'Hatred, murder & male honour: Gay homicides and the "homosexual panic defence"', Criminology Australia, Vol. 6, No. 2, November. [2] Sydney Morning Herald - 5.5.94, p. 6; reported in Lesbian and Gay Anti-Violence Project, (1995), Forum on the "Homosexual Panic Defence" - 14/4/94, "Homosexual Panic Defence" - And Other Family Values, May, Sydney, p. 14. [3] Word used to describe locations where men frequently meet to arrange or to have sex with other men. Location of beat could be anywhere but is normally areas such as male public toilets, public car parks, public parks etc. [4] Capital Q; Ibid., p. 14. [5] A 'dock statement' allowed a defendant to make an unsworn statement from the dock which could not be cross-examined. This practice has been discontinued in NSW. [6] Sydney Morning Herald - 16/12/93, p. 6; op. cit., pp. 14-15. [7] Capital Q, 12/5/95, p. 4; Ibid., p 15. [8] G. Mason, (1993), 'Violence Against Lesbians and Gay Men', Trends and Issues, Australian Institute of Criminology, No. 2, November, pp. 3-4. [9] B. Baired, K. Mason, I. Purcell, (1994), The Police and You: A Survey of Lesbian and Gay Men in South Australia, Lesbian and Gay Community Action, Adelaide, pp. 8-9. [10] (i) S. Tomsen, (1994),op. cit., p. 2. (ii) The Editors of the Harvard Law Journal, (1989), Sexual Orientation and the Law, Harvard University Press, Massachusetts, p. 23. [11] Ibid., p. 31. [12] Conclusion of the Streetwatch Implementation Advisory Committee (1992), a committee constituted by government and community representatives in New South Wales. In G. Mason, (1993), 'Violence Against Lesbians and Gay Men', Trends and Issues, Australian Institute of Criminology, No. 2, November, p. 2. [13] The Editors of the Harvard Law Journal, op. cit,, p. 1. [14] Only Tasmania retains criminal sanction for 'private homosexual acts' (s. 122, s. 123: Criminal Code Act 1924). From P. Wilson, (1994), 'Homosexual Law Reform in Australia' in Trends and Issues, Australian Institute of C riminology, No. 29, November, p. 3. This measure remains despite privacy legislation introduced by the Federal Government in 1995 in response to a case, (Toonen v. Australia), brought before the UN Human Rights Committee that found that Australia contravened the ICPPR (namely: provisions against discrimination (Article 2(1), and arbitrary or unlawful breach of privacy) in relation to the treatment by the State of homosexuals. See S. Joseph, (1994), 'Gay Rights Under the ICCPR - Commentary on Toonen v. Australia', in University of Tasm ania Law Review, Vol. 13, No. 2, pp. 392-411. [15] (i) The strongest of such measures exists in NSW where vilification of gay men and lesbians is unlawful; per the Anti Discrimination (Homosexual Vilification) Act 1993 . (a) R. Takach, (1994), 'Gay and Lesbian Inequality: The Anti-Vilification Measures', in Australasian Gay and Lesbian Law Journal, Vol. 4, pp. 30-49. (b) A. Scahill, (1994), 'Can Hate Speech Be Free Speech', in Australasian Gay and Lesbian Law Journal, Vol. 4, pp. 1-30. (ii) In Victoria, Tasmania and Western Australia it is still lawful to discriminate on the basis of perceived sexuality. In addition there is no federal legislation which enforces sanctions against gay and lesbian discrimination in areas of education, health, housing or provision of goods and services. See G. Mason, op. cit., p. 6. [16] I'm not convinced that this 'post-structuralist' approach is clearly explained or elaborated in the Harvard text. It suggests that gays' and lesbians did not exist before communities of same developed. Also the natural ext ension of this argument is that 'self-identification' does not exist, instead gay and lesbian identity is merely a product of the label homosexual or gay or lesbian. I need to do more reading in this area but I am initially swayed by Paul Monette's confu sion concerning 'social constructionism' or 'new inventionism' to the extent that its definition of knowing excludes self knowledge about sexual orientation. See P. Monette, op. cit., pp. 134-135. [17] S. Tomsen, op. cit., pp. 4-5. [18] Ibid., p. 5. [19] Ibid., p. 5. [20] P. Monette, (1995), Last Watch of the Night: Essays Too Personal and Otherwise, Abacus, London, p. 119. [21] B. Baired, K. Mason, I. Purcell, op. cit., p. 7. [22] (i) This is a bit cryptic I know. I am trying to draw attention to diversity within the gay and lesbian community. This is important to the extent that, amongst gay men, the conception of social justice in relation to sexu al orientation can be reflected in the way they themselves view their own sexual orientation. There would inevitably be various degrees of denial, self-loathing, acceptance, celebration and activism. On top of this must be placed social, cultural, polit ical and economic constraints or benefits which that person experiences or identifies with. (ii) There has been research into the relationship between the lifestyle characteristics of homosexual men and their propensity to be subjected to hate crimes. Not surprisingly the research reveals that those who were 'out' and involved in the gay commun ity suffered less hate crime than those gay men who were not 'out' and/or were involved in what was called 'marginal behaviour' such as frequenting beats. See B. Miller, & L. Humphreys, (1980), 'Lifestyles and Violence: Homosexual Victims of Assault an d Murder' in Homosexuality: Discrimination, Criminology, and the Law, (1992), W. R. Dynes, S. Donaldson, (Eds), Garland Publishing, New York, pp. 421-438. [23] G. Mason, op. cit., p. 2. [24] See (i) The Editors of the Harvard Law Journal, op. cit., p. 9-11. (ii) J. Dressler, (1979) 'Judicial Homophobia: Gay Rights Biggest Roadblock' in Homosexuality: Discrimination, Criminology, and the Law, (1992), W. R. Dynes, S. Donaldson, (Eds), Garland Publishing, New York, pp. 79-80. (iii) G. M. Herek, (1989) 'Hate Crimes against Lesbians and Gay Men: Issues for Research and Policy' in Homosexuality: Discrimination, Criminology, and the Law, (1992), W. R. Dynes, S. Donaldson, (Eds), Garland Publishing, New York, pp. 216-224. [25] (i) A. George, (1995), Homosexual Provocation: The Courtroom as an area of Gender Conflict in Australia (unpublished thesis, Dept of Sociology and Anthropology, University of Newcastle, p. 78. (ii) B. Baired, K. Mason, I. Purcell, (1994), op. cit., pp. 1-55. (iii) S. Tomsen, op. cit, p. 2. (iv) G. Mason, (1993), op. cit., p. 2. (v) P. Wilson, op. cit., pp. 1-8. (vi) M. Atkinson, (1992), 'Homosexual Law Reform' in University of Tasmania Law Review, Vol. 11, No. 1, pp. 206-212. (vii) R. Takach, op. cit., pp. 30-49. (viii) A. Scahill, op. cit., pp. 1-30. [26] S. Tomsen, op. cit., pp. 2-3. [27] P. Monette, op. cit., p. 57. [28] (Ref. 70107/93), 6-11/ 1994 (Trial). Justice Grove. [29] A. George, op. cit., p31. [30] A. George, op. cit., p32. [31] Ibid., p. 37. [32] Ibid., , p. 40. [33] P Monette, op. cit., p. 119.