Gay panic defense

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The gay panic defense^[1] is a legal defense, usually against charges of assault or murder.^[2] A defendant using the defense claims they acted in a state of violent temporary insanity because of a purported psychiatric condition called homosexual panic.^[3] The defendant alleges to find the same-sex sexual advances so offensive and frightening that it brings on a psychotic state characterized by unusual violence.

Trans panic is a similar defense applied towards cases where the victim is a transgender or intersex person.

Jurisdictions

Australia

In Australia it is known as the homosexual advance defense (HAD).^[4][5] Of the status of the HAD in Australia, Kent Blore wrote:

Although the homosexual advance defence cannot be found anywhere in legislation, its entrenchment in case law gives it the force of law. [...] Several Australian states and territories have either abolished the umbrella defence of provocation entirely or excluded non-violent homosexual advances from its ambit. Of those that have abolished provocation entirely, Tasmania was the first to do so in 2003.^[6]

Victoria passed similar reforms in 2005, followed by Western Australia in 2008 and Queensland in 2017 (with a clause to allow it in 'exceptional circumstances' to be determined by a magistrate).^[7] In a differing approach, New South Wales, the ACT and Northern Territory have implemented changes to stipulate that non-violent sexual advances (of any kind, including homosexual) aren't a valid defense.^[6] South Australia remains the only jurisdiction within Australia to have not repealed or overhauled the gay panic defence, however the state government is awaiting the outcome of an appeal from the convicted killer of Andrew Negre before reviewing law.

New Zealand

• In 2003, a gay interior designer and former television host, David McNee, was killed^[8] by part-time sex worker Phillip Layton Edwards. Edwards said at his trial that he told McNee he was not gay, but would masturbate in front of him on a "no-touch" basis for money. The defense successfully argued that Edwards, who had 56 previous convictions and had been on parole for 11 days, was provoked into beating McNee after he violated their "no touching" agreement. Edwards was jailed for nine years for manslaughter.^[9][10]
• In July 2009, Ferdinand Ambach, 32, a Hungarian tourist, was convicted of killing Ronald Brown, 69, by hitting him with a banjo and shoving the instrument's neck down Brown's throat. Ambach was initially charged with murder, but the charge was downgraded to manslaughter after Ambach's lawyer successfully invoked the gay panic defense.^[11][12]
• On November 26, 2009, the New Zealand Parliament voted to abolish Section 169 of the Crimes Act 1961, removing the provocation defence from New Zealand law, although it was argued by some that this change was more a result of the failed provocation defence in the Sophie Elliott murder trial by her ex-boyfriend.^[13]

United Kingdom

Guidance given to counsel by the Crown Prosecution Service of England and Wales states: "The fact that the victim made a sexual advance on the defendant does not, of itself, automatically provide the defendant with a defence of self-defence for the actions that they then take." In the UK, it has been known for decades as the "Portsmouth defence"^[14][15][16] or the "guardsman's defence"^[17] (the latter term was used in an episode of Rumpole of the Bailey made in 1980).

United States of America

The gay panic defense has been banned in California only, but the American Bar Association has suggested that other states follow California's lead.^[18] In 2006, California amended its penal code to include jury instructions to ignore bias, sympathy, prejudice, or public opinion in making their decision, and a directive was made to educate district attorneys' offices about panic strategies and how to prevent bias from affecting trial outcomes.^[19][20] On September 27, 2014, Governor Jerry Brown signed Assembly Bill No. 2501, making California the first and only state in the USA to ban the gay and trans panic defense.^[21] AB 2501 states that discovery of, knowledge about, or potential disclosure of the victim's actual or perceived gender, gender identity, gender expression, or sexual orientation does not, by itself, constitute sufficient provocation to justify a lesser charge of voluntary manslaughter.^[22]

The gay panic defense is generally invoked in cases where the guilt of the defendant is unquestionable, but only as a means to strengthen a more "traditional criminal law defense such as insanity, diminished capacity, provocation, or self-defense" and is not meant to provide justification of the crime on its own.^[23] While using the gay panic defense to explain insanity has typically not been successful in winning a complete acquittal, diminished capacity, provocation, and self-defense have all been used successfully to reduce charges and sentences.^[23] Historically, in US courts, use of the gay panic defense has not typically resulted the acquittal of the defendant; instead, the defendant was usually found guilty, but on lesser charges, or judges and juries may have cited homosexual solicitation as a mitigating factor, resulting in reduced culpability and sentences.^[24] The most famous case in which this occurred was the "Jenny Jones" case, where Jonathan Schmitz was tried for the first-degree murder of Scott Amedure and was instead found guilty of the lesser offense of second-degree murder.^[25] Some instances where the gay panic defense has been invoked include:

• The first noted instance of the "gay panic defense" is when Joseph Rodriguez beat an old man to death with an improvised club on the evening of September 26, 1965.^[26][23] During the trial, Rodriguez testified he was urinating in an alley when he was grabbed from behind; fearing the old man was trying to engage him in a homosexual act, Rodriguez commenced beating him with the club.^[26] An expert witness for the defense testified Rodriguez "was acting as a result of an acute homosexual panic," but Rodriguez was convicted of second-degree murder despite the defense strategy.^[26]
• ′Chet′ Jackson was murdered by John Stephan Parisie on Friday, April 12, 1968. Jackson, a local automobile dealer who had left a scout meeting earlier that evening, was found by a tow truck driver standing on a country road outside of the city of Springfield, Illinois at approximately 10:45 P.M.^[27][28] The bloody Jackson, who said he had been shot, asked to be taken to a hospital, where he died the next morning at approximately 10:30 A.M.^[27][28] Parisie was found asleep in Jackson's car at 5:22 A.M. that same morning of April 13, in possession of Jackson's wallet and wedding ring.^[27] A jury convicted Parisie of murder, and he was sentenced to a term of 40 to 70 years imprisonment on February 27, 1969.^[28] On the stand, Parisie testified that he had shot Jackson with a stolen gun.^[27] According to Parisie's testimony, Jackson had offered him a lift when he saw Parisie walking; Jackson then drove him out of town past the lake to a deserted gravel road, parked, turned off the lights, slid back the seat, and made a homosexual advance, saying that if "[Jackson] refused, he would have to walk."^[27] However, prior to his death, Jackson told a state police trooper that he did not know who had shot him, and they had gone for a ride around the lake without parking.^[27] A 1972 appellate court decision upholding the trial verdict said the defense strategy was based upon "homosexual panic" leading to insanity, since Parisie testified he just "blew up, went crazy" after being propositioned.^[27] Prior to the trial and jury selection, a private attorney representing Jackson's widow and three children convinced the court to prohibit the defense counsel from mentioning the victim's sexual orientation^[28] during jury selection, ruling the defense had failed to demonstrate relevancy.^[27] The US Court of Appeals for the 7th Circuit reversed, determining that Parisie's 6th Amendment rights had been violated by failing to allow him to show evidence that Jackson was homosexual.^[28]
• James Bierley was stabbed to death by Robert James Thornton on January 8, 1970 in Columbia, Missouri. Bierley and Thornton were neighbors residing in the same apartment building; in a statement he gave four days later, Thornton said he had been drinking when Bierley invited him upstairs to his room to watch television. After watching for half an hour, in Thornton's statement, "[Bierley] started playing with me and put his arm around me ... he started kissing me on the jaw ... I told him three or four times to quit what he was doing and he just kept on like he didn't hear me." When Thornton attempted to leave, Bierley grabbed him and pulled him back into the room, where Thornton felt "that he was trying to queer me and I just blew up and started stabbing him. He had not made any threats to me."^[29] The initial charge was first degree murder, which the state dropped to manslaughter. Thornton was found guilty of manslaughter and sentenced to ten years imprisonment. In an appeal ruling, the Missouri Court of Appeals noted that since the victim was attempting to commit a felony upon Thornton (sodomy was a felony offense under § 563.230 RSMo 1969), homicide could be justifiable (under § 559.040 RSMo 1969), but instead, because Thornton tried to hide the knife and denied the crime when questioned by police on the evening of January 8, that indicated a consciousness of guilt rather than justifiable homicide. The Appeals Court rejected the defense that Thornton was in a state of "homosexual panic" as the pair had been sitting in a small room together with the door open, there were no signs of a physical struggle, Bierley had no weapon and according to Thornton's statement, had not made any threats, and no other residents reported unusual noises or shouts.^[29]
• William C. Dubbels was murdered by Robert J. Shelley early in the morning of September 3, 1975 in Franklin, Massachusetts.^[30] Dubbels was the manager of an all-night grocery store which employed Shelley. Shelley visited Dubbels at his home with some friends near midnight on September 2 and after drinking and joking for several hours, the friends departed, leaving Shelley and Dubbels alone. At some point during the evening, Dubbels had expressed his physical attraction to Shelley, but it was not taken seriously in the joking context of the gathering; after they were alone, Dubbels suggested that Shelley spend the rest of the night to help him open the store in the morning. Shelley agreed, and after taking a shower, got into bed with Dubbels. Dubbels made sexual advances, but was rebuffed and Shelley, upset, went downstairs to retrieve a meat cleaver and roasting fork from the kitchen. After returning to the upstairs bedroom, Dubbels reportedly put his arm around Shelley, and Shelley responded by attacking and killing Dubbels. Shelley was arrested, found guilty of first-degree murder in 1976, and sentenced to life imprisonment.^[30] At his trial, Shelley produced a psychiatrist as an expert witness, who testified that Shelley suffered a "dissociative reaction" brought on from a "homosexual panic;" an expert witness from the Commonwealth of Massachusetts agreed the dissociative reaction was brought on by homosexual panic, but stated the consumption of alcohol was a contributing factor.^[30] The first trial was overturned for overaggressive prosecution, but Shelley was again convicted of first-degree murder and sentenced to life in a second trial in 1978.^[31]
• Ronald Landry was stabbed to death by William H. Doucette, Jr. on February 6, 1979 in a motel in Malden, Massachusetts.^[32] Upon questioning from police, Doucette stated that Landry had tried to rape him with a knife to his throat, but the autopsy of Landry's body showed sperm in his rectum, mouth and throat, with the sperm in his mouth being deposited no more than an hour or two prior.^[32] Doucette was convicted of first degree murder and was sentenced to life imprisonment.^[32] In reviewing the case, the Supreme Judicial Court of Massachusetts found Doucette's invocation of the "homosexual panic" defense unconvincing, as the term was used "merely [to describe] the defendant's version of the events which occurred in the motel room."^[32]
• John Dunkin was shot and killed by Ronald Williamson the night of October 31, 1981 in Wasilla, Alaska.^[33] The prosecution theory was that Dunkin and Williamson had left a local bar to go barhopping together, but Williamson convinced Dunkin to stop the car along the way, and in the course of robbing Dunkin, shot him. The defense instead asserted that Dunkin invited Williamson and a friend outside to "do some Quaaludes" and despite a warning from the bartender about Dunkin, Williamson left with Dunkin in Dunkin's car. When Williamson dropped his lighter, he felt a gun, and Dunkin proceeded to drive Williamson at gunpoint to a remote area where he attempted to force Williamson to perform fellatio, which Williamson resisted. During the course of the ensuing struggle, Williamson located another gun in the vehicle and shot Dunkin with it.^[33] Williamson was convicted of two counts of tampering with physical evidence and manslaughter and was sentenced to five years imprisonment for each count of tampering and fifteen years for manslaughter.^[33] However, an appeals court ruled that hearsay testimony from Williamson's co-defendant was improperly admitted and evidence of Dunkin's sexually aggressive behavior had been suppressed; on appeal, the conviction for manslaughter was set aside and a second trial was granted.^[33]
• Thurman Anderson was shot and killed by Kenneth Burton Lang, Jr. on August 18, 1983 in the Los Padres National Forest where Anderson had told his wife he would be hunting deer.^[34] Anderson had picked up Lang while Lang was hitchhiking and the two men traveled to a campsite together in Anderson's motor home. According to Lang's testimony, Anderson said something about being afraid of catching venereal disease and having had sex with two men before, and as Lang was looking through a set of binoculars, Anderson grabbed Lang by the leg and attempted to kiss him. When Lang pushed him away angrily, Anderson turned his back on Lang and swung his rifle down from his shoulder; Lang was fearful that Anderson was loading the rifle, so he shot Anderson with a handgun he owned and was carrying.^[34] During rebuttal, however, the prosecution presented the testimony of Lang's former roommate, a known homosexual who had propositioned Lang without a violent reaction. Lang was convicted of first-degree murder and robbery with the special circumstance where the murder was committed in perpetration of the robbery, and he was sentenced to death. The Supreme Court of California, in upholding the verdict, found that remarks attributed to Anderson by Lang about venereal disease were characteristic of a certain subgroup of homosexuals who had very few sexual contacts with men and a morbid fear of venereal disease. Because this subgroup was not widely known, it was likely that Lang himself was part of that subgroup.^[34]
• Mario Escamilla stabbed a man to death after being invited inside the victim's house on July 3, 1986 in Lincoln, Nebraska.^[35] Escamilla entered the victim's house when he asked to use the telephone, which occurred after the victim called out to him on the street, asking if Escamilla was lost. While Escamilla was using the telephone, the victim came up behind him and tried to touch Escamilla's scrotum, causing Escamilla to react violently by picking up a kitchen knife and stabbing the man in his neck. On appeal, Lancaster County District Court set aside the conviction for first degree murder, and after the State appealed that appeal, the Supreme Court of Nebraska determined "there was no scientific testimony offered by Escamilla which supported his claim of 'homosexual panic.'"^[35]
• In 1987, Joseph Mitchell Parsons, who called himself the "Rainbow Warrior",^[36] claimed that he killed Richard Lynn Ernest to defend against a homosexual advance, but was unable to present any evidence at trial to support this claim.^[37] The victim's family and friends stated in court that Ernest was not gay or bisexual.^[38] Prosecution witnesses testified of Parsons' homosexual activity in jail.^[39] A forensic psychiatrist from the University of Utah stated that the descriptions of Parsons' sexual history indicated that he "may have been the one initiating the contact and became angry when [Ernest] turned him down."^[40] Parsons was executed by lethal injection at Utah State Prison in October 1999.^[36]
• Stephen Lamie picked up Timothy Schick while Schick was hitchhiking on the evening of August 6, 1988; Schick stated that when he asked Lamie if he knew where they could find girls for sex or if he knew where he could get a "blow job," Lamie replied "No, but I will" and the two stopped at a baseball field. Schick would later state that after exiting the car, Lamie pulled down his own shorts and underwear, and attempted to grab Schick's penis. Schick responded by beating Lamie until "he heard gurgling noises from Lamie's chest and throat," stealing money from Lamie's wallet, and running to a nearby friend's house for help. Schick was found guilty of theft, confinement resulting in serious bodily injury, and voluntary manslaughter; he was sentenced in 1989 to consecutive sentences totaling 28 years in prison,^[41] but was released in 2001.^[42]
• Victor Hempstead was beaten to death by Dennis D. Lowe on the evening of January 10, 1992 in the "Bums Hollow" area of Omaha, Nebraska. According to Lowe's testimony, he had fallen asleep in his truck, only to be awakened by Hempstead undoing Lowe's jeans and groping him.^[43][44] Lowe testified he "freaked, got scared" and then "lost it mentally for a second or two."^[43] The defense was predicated in part on demonstrating Hempstead's homosexuality leading to Lowe's panic, but in an appeal, the Supreme Court of Nebraska found the evidence presented of Hempstead's homosexuality unconvincing.^[43] Lowe was convicted of second degree murder and use of a deadly weapon in the commission of a felony.^[43] However, in another appeal, because the homicide did not demonstrate malice, the conviction for murder was set aside in 1995, paving the way for a second trial.^[44] Lowe was granted parole in 2004.^[45]
• In 1995, one of the highest-profile cases to make use of the gay panic defense was the Michigan trial of Jonathan Schmitz, who killed his friend Scott Amedure after learning, during a taping of The Jenny Jones Show, that Amedure was sexually attracted to him. Schmitz confessed to committing the crime but claimed that Amedure's homosexual overtures angered and humiliated him. Legally, this defense had a very weak standing for him, since in cases of legal provocation providing for diminished capacity, it is required to have an immediate response. Since he had not acted until three days after the incident, legally, he failed to show any panic-based violent psychosis. He was convicted of second-degree murder and sentenced to 25 to 50 years in prison.^[25] Schmitz is incarcerated in the minimum-security Parnall Correctional Facility and is eligible for parole in 2017.^[46]
• In the 1998 murder of university student Matthew Shepard, the defendants claimed in court that the young man's homosexual proposition enraged them to the point of murder. However, Judge Barton Voigt barred this strategy, saying that it was "in effect, either a temporary insanity defense or a diminished capacity defense, such as irresistible impulse, which are not allowed in Wyoming, because they do not fit within the statutory insanity defense construct." After their conviction, Shepard's attackers recanted their story in a 20/20 interview with Elizabeth Vargas, saying that the murder was a robbery attempt gone awry under the influence of drugs. This claim was denied by the defendants' girlfriends.
• Billy Jack Gaither was murdered by Steven Eric Mullins and Charles Monroe Butler Jr. and his body was set on fire on February 19, 1999.^[47] The two were accused of planning his death for two weeks after being angered over what they said was a sexual advance.^[48][49] Gaither was living in Sylacauga, Alabama with his parents; although he had not come out to his parents, he was known to other gay residents of Sylacauga.^[50] In a later interview, Butler blamed the victim, saying "Billy Jack started talking about some gay issues ... wanting to have a threesome, or whatever [with Butler and Mullins]. Tempers flared up. Steve jumped on him, and cut his throat there ..." and later claimed Gaither was being disrespectful since Butler wasn't "some gay tramp out there, waiting to be corn-holed by some prick" despite Butler having frequented gay bars in Birmingham with friends.^[51] Friends of Gaither stated that it was unlikely that Gaither had propositioned the duo, as he was characterized as shy.^[52] At the time, Mullins and Butler were not charged with a hate crime because Alabama's hate crime statute did not cover crimes based on sexual orientation;^[50] the pair were convicted and sentenced to life imprisonment without parole.^[53]
• Larry King, a 15-year-old student, was murdered by fellow 14-year-old classmate Brandon McInerney on February 12, 2008. The first trial ended in a mistrial (hung jury) after McInerney's defense lawyers claimed he had "reached an emotional breaking point in response to King's advances"^[54] and that he felt threatened by King, who had "returned taunts from [McInerney] and other boys with sexual overtures and declarations of love."^[55] In 2011, McInerney pleaded guilty to second degree murder, voluntary manslaughter, and use of a gun to avoid a second trial, and was sentenced to 21 years imprisonment.^[54]
• In 2010, Vincent James McGee was charged with capital murder for stabbing and killing Richard Barrett in Mississippi.^[56] McGee claimed that Barrett had dropped his pants and asked McGee to perform a sexual act on him, sending McGee into a panic.^[57] McGee pleaded guilty to manslaughter, arson, and burglary on July 28, 2011. He was sentenced to 20 years on the manslaughter charge, 20 years on the arson charge, and 25 years on the burglary charge; 65 years in total.^[58]

Trans panic

• A transgender variation of the gay panic defense was also used in 2004–2005 in California by the three defendants in the Gwen Araujo homicide case, who claimed that they were enraged by the discovery that Araujo, a transgender teenager with whom they had engaged in sex, had male genitalia. Following their initial suspicions about her biological sex, Araujo was "subjected to forced genital exposure in the bathroom, after which it was announced that 'he was really a man'".^[59] The defendants claimed that Araujo's failure to disclose her biological sex was tantamount to deception, and that the subsequent revelation of her biological sex "had provoked the violent response to what Thorman represented as a sexual violation 'so deep it's almost primal'".^[59] The first trial resulted in a jury deadlock; in the second, defendants Mike Magidson and Jose Merél were convicted of second-degree murder, while the jury again deadlocked in the case of Jason Cazares. Cazares later entered a plea of no contest to charges of voluntary manslaughter. The jury failed to return the requested hate crime additions to the convictions for the defendants.^[60]
• Islan Nettles was beaten to death in Harlem just after midnight on August 17, 2013.^[61] The killer, James Dixon, was not indicted until March 2015, despite turning himself in three days after the attack and confessing that he had flown into "a blind fury" when he realized that Nettles was a transgender woman.^[62] Dixon pleaded not guilty to first degree manslaughter at his indictment.^[63] Dixon was not charged with murder, which would have required proof of intent, nor was he charged with a hate crime, even though there was no other apparent motive for the beating other than gender identity.^[63] During his confession, Dixon said that his friends had mocked him for flirting with Nettles, not realizing that she was transgender, and furthermore, in an incident a few days prior to the beating, his friends had teased him after he flirted with two transgender women while he was doing pull-ups on a scaffolding at 138th Street and Eighth Avenue.^[62] Dixon pleaded guilty and received a sentence of 12 years imprisonment, a sentence that Nettles's mother felt was too light.^[64]

See also

• Violence against LGBT people
• Homophobia
• Lesbophobia
• Biphobia
• Transphobia
• Corrective rape

References

Further reading

• Chen, Christina Pei-Lin (2000). "Provocation's privileged desire: the provocation doctrine, homosexual panic, and the non-violent unwanted sexual advance defense.". Cornell Journal of Law and Public Policy. 10 (1). Retrieved 15 February 2017. 
• Darwin community legal service – an Australian response, also citing WA recommendations.
• "Homosexual panic" and the mercenary killing – AIC Research and Public Policy Series (Australia).
• Suffredini, K., Pride and prejudice: the homosexual panic defense – An American legal perspective.
• McConnell, David (2013). American Honor Killings: Desire and Rage Among Men. Brooklyn, New York: Akashic Books. ISBN 978-1-61775-153-0. Retrieved 15 February 2017. 

External links

• Gay Panic Defense Ruling – Ruling in the Matthew Shepard Case
• Lindenberger, Michael (12 April 2005). ""They asked for it": Murderers of gay and transgender people across the country are still blaming the victims, claiming sexual advances can cause homicidal rage. Now prosecutors are joining together to get rid of the "gay panic" defense once and for all". The Advocate. pp. 34–37. Retrieved 15 February 2017. 
• Guidance To Counsel – Guidance on Prosecuting Cases of Homophobic Crime, Crown Prosecution Service