Comment: The homosexual panic and gay advance defenses

• Jurisdiction: South Africa
• Author: Angelo Pantazis
• Date: 28 August 2019
• Citation: (1997) 10 SACJ 85
• Pages: 85-93
• Published date: 28 August 2019

Comments • Aantekeninge



85

The homosexual panic and

gay advance defences

Angelo Pantazis*

If a homosexual makes a non-violent sexual advance to a man who then kills

him because he has been provoked, can the killer rely on a defence of non-

pathological criminal incapacity in South African law? In theory he can, and

this defence was (unsuccessfully) raised in

S v Kensley

1995 (1) SACR 646 (A).

The (possible) South African defence has similarities to two defences raised in

the courts in the United States, the homosexual panic defence and the gay

advance defence. In this comment, I first summarize the relevant parts of

Kensley.

I then explain the two American defences and compare them to the

South African defence, thereby bringing out the criticisms of the American

defences that may be relevant to the South African defence. I use these

criticisms to suggest what approach the South African law should take to the

situation. My suggestions are finally grounded in an awareness of anti-gay

•

University of the Witwatersrand.

(1997) 10 SACJ 85

© Juta and Company (Pty) Ltd