A man used the gay panic defence in India to reduce his sentence. | Photo: Tom Woodward Flickr
A man who stabbed his friend to death has had his sentence and charge reduced in a Bombay court thanks to the ‘gay panic’ defence.
The 35-year-old man had already served seven years in jail for his friends’ death. But he appealed to the Bombay High Court to have his sentenced reduced.
Originally convicted for murder and given a life sentence, the court reduced his sentence. The court’s changed the man’s sentence to culpable homicide and released him for time already served.
The man appealed his original sentence saying his friend was trying to have ‘unnatural sex’ with him and that’s why he attacked him.
In their ruling the court Justices said the man’s story seemed ‘plausible’.
‘If a person is asked to indulge in an unnatural sex act and assaulted, it is quite probable such a person in the heat of passion would assault the person demanding such unnatural act,’ the justices said.
Section 96 to 106 of the Indian Penal Code allow ‘private defence of the person or property’. Section 100 refers to the ‘right of private defense of the body extends to causing death’. It specifies self-defence is justifiable in ‘an assault with the intention of gratifying unnatural lust’.
Homosexual intercourse is illegal in India. Section 377 of the Penal Code outlaws ‘carnal intercourse against the order of nature’. The Supreme Court of India is currently reviewing an appeal to overturn the law. Its decision is expected within a few weeks.
Gay panic defence
The controversial ‘gay panic’ defence first surfaced in the US in the 1960s. The defence partially or completely excuse crimes such as murder and assault on the grounds that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction.
Many countries around the world have barred using the defence along the ‘trans panic defence’.
In 2013, the American Bar Association’s (ABA) House of Delegates voted to approve a resolution against the use of the defences.
‘The ABA’s adoption of this measure sends a clear message to state legislatures that legal professionals find no validity in the sham defenses mounted by those who seek to perpetuate discrimination and stereotypes as an excuse for violence,’ said then executive director of the National LGBT Bar Association, D’Arcy Kemnitz.
‘Too many people have hidden for far too long behind baseless “panic” defenses – judges, lawmakers and juries must demand that these practices come to an end and juries must be provided with instructions advising juries to make their decisions free of improper bias and prejudice.’
