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  (#1 (permalink)) Old
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Two Major Legal Process Issues Involving Homosexuality. - January 14th 2016, 10:41 AM

In Australia, there have been two major legal process discussions happening, around two proposed amendments, neither of which I agree with. The first is the criminalisation of HIV transmissions. I do not want to go as far as to say that the criminalisation of HIV transmission is in any way akin to the criminalisation of homosexuality, but homosexual people who engage in unprotected intercourse are disproportionately likely to contract HIV and this is a well documented correlation. The consideration of that correlation in the development of an amendment should have rendered it systematically, even if indirectly, homophobic. If someone deliberately transmits HIV or is negligent in the transmission after a diagnosis, then that can go under Criminal Negligence or Grievous Bodily Harm.

The second amendment is the proposition to eliminate the "gay panic" defense from Queensland court. A man was acquitted in 1997, of murder, citing panic in the presence of homosexual advances from a man as a defense. The problem with the proposed amendment is that if you are going to ban "gay panic" as a defense, you have to ban the idea of panic more generally, and panic in itself is very much a genuine defense.

In Australia, to prove any violent crime, you have to prove Actus Reus (the commission of an action) and also Mens Rea (the intent to commit). Any suggestion of panic means that a given person is not in their typical, reasonable frame of mind and that immediately puts a red flag on Mens Rea. Australian states have HUGE burdens of proof, it is known as Beyond Reasonable Doubt, literally the highest you can get. A suggestion of panic, regardless of whether it is "gay panic" needs to be taken very seriously.

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Re: Two Major Legal Process Issues Involving Homosexuality. - January 15th 2016, 01:05 AM

We have a similar law here. If you knowingly transmit HIV it is criminal. Sure, HIV had had many advancements in treatments but it is still devastating and you should disclose something like that so proper precautions can be taken.

Gay panic seems like a BS defense though so personally good on them for removing it. So scared of seeing a homosexual you commit murder? What are you afraid of, catching the gay? I feel as if that wouldn't fly with a person of color so why a homosexual?


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Re: Two Major Legal Process Issues Involving Homosexuality. - January 21st 2016, 01:28 PM

Gay panic should be removed as a defense. It's not the same as actual panic, say if you were being attacked or robbed and you panic and retaliate. It's someone saying 'I found out they were gay and I'm so homophobic that this meant I had to kill/attack them on the spot'. It's bs, homophobic and dangerous because it's LGBT people who are more likely to be attacked.

With HIV transmission, that's a little more of a grey area. On one hand, if you purposefully transmit HIV or you have unprotected sex despite knowing that you are HIV positive, you are causing massive damage to the other person, but at the same time, this runs the risk of criminalising HIV positive people purely for being HIV positive. For example, say you have consensual sex with someone, and they know you are HIV positive. Then you fight, and the person uses your HIV as a reason to report you to the police, because it's your word against theirs whether you told them or not, whether you used protection or not, whether they actually got HIV from you or from someone else etc etc. I think it's a slippery slope and may not protect the people who are most vulnerable.


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Re: Two Major Legal Process Issues Involving Homosexuality. - January 21st 2016, 01:31 PM

Quote:
With HIV transmission, that's a little more of a grey area. On one hand, if you purposefully transmit HIV or you have unprotected sex despite knowing that you are HIV positive, you are causing massive damage to the other person, but at the same time, this runs the risk of criminalising HIV positive people purely for being HIV positive. For example, say you have consensual sex with someone, and they know you are HIV positive. Then you fight, and the person uses your HIV as a reason to report you to the police, because it's your word against theirs whether you told them or not, whether you used protection or not, whether they actually got HIV from you or from someone else etc etc. I think it's a slippery slope and may not protect the people who are most vulnerable.
This is a really great point I didn't think of. What would be done to kind of "settle" that gray area when prosecuting?


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