Touro Law Review BLOG

by Omar T. Russo

 

Introduction

In April of 2018, a jury found 69-year-old James Miller of Austin, Texas not guilty of murder for the 2015 slaying of his neighbor, Daniel Spencer.[1]  The jury convicted Miller of criminally negligent homicide, a crime that earned him a mere six months in jail and ten years of probation.[2]  Miller invited Spencer, his 32-year-old neighbor, to his house where they drank and listened to music; the two were musicians.[3]  According to Miller, he rejected a kiss from Spencer and stabbed him in a panic.[4]

Miller’s defense counsel argued that he acted in self-defense, which is one of the defenses defendants may assert, known unofficially as the “gay panic” defense.[5]  Only a handful of states have enacted legislation to proactively ban the defense, and similar legislation is pending at the federal level, in several states, and in the District of Columbia.[6]

The so-called “gay panic” defense stems from a phenomenon originally coined by psychotherapist Edward J. Kempf in 1920, who claimed that in his studies of heterosexual-identifying males, they became agitated, enraged and panicked by their acute homosexual thoughts or ideas.[7]  The concerns for psychological breakdown described by Kempf were not out of touch with the times, given the classification of “homosexuality” as a medically-recognized disorder until 1973.[8]

Today the gay panic defense continues to be used to influence jurors to mitigate a violent defendant’s conviction or sentence based on the premise that the victim was romantically interested in the defendant of the same sex that, consequently, struck some panic within the defendant and caused him or her to react violently.  The defense, based upon irrational “homophobia and transphobia, . . . send[s] the wrong message that violence against LGBT people is acceptable.”[9]  In an era post-pathological homosexuality, cases such as these move the focus of the case from the defendant to the victim.[10]  In order for this defense to work, defendants must prove that “the victim’s unwanted, nonviolent homosexual advance was characterized as an external stimulus causing the defendant’s homicidal reaction.”[11]

The basis for this defense is highly troublesome for another reason, namely, its equal protection implications.  If we swapped the victim’s supposed sexual identity with a religious identity or racial identity, then the defense would crumble.  Contemporarily, a defense of panic based on arbitrary characteristics of another person is illogical and poorly reflective of our current state of law, justice, and societal opinion.  The gay panic defense continues to perpetuate the message that LGBT people are frightening and somehow instill reasonable fear in people; that an LGBT individual’s unwanted and nonviolent romantic attempts are justification for violence and even murder.  To bring the issue of a victim’s sexual orientation to focus as a defense tactic is “like placing a woman’s sexual promiscuity at issue to show consent to rape.”[12]

Origins of the Gay Panic Defense

The first known use of the gay panic defense was the California case of People v. Rodriguez,[13] where the defendant argued that the victim touched him sexually while he urinated in an alley.[14]  In Rodriguez, the defendant beat to death an elderly man with a tree branch after following him into his yard where he was emptying his garbage.[15]  The defendant, however, argued that after his friends stole a woman’s purse, he ran to urinate in an alley and was grabbed in the process from behind.[16]  Fearing the man was “trying to engage in a homosexual act,” the defendant picked up the branch and beat the victim over the head.[17]

An expert testified at trial that the defendant was not acting under “acute homosexual panic,” but was sane when he committed the murder.[18]  The jury returned a verdict of guilty for murder in the second degree, rather than for murder in the first degree, with which the defendant was originally charged.[19]  This case opened the door for the gay panic defense as a mitigating factor for defendants’ violent actions.  Although the expert physician provided testimony as to the defendant’s sanity, which the jury accepted, the pervasive nature of the defendant’s story of having been touched while urinating led to a reduced conviction.

A Deeply Rooted LGBT Bias in the Law

As anti-gay sentiment grew in the first half of the twentieth century, laws developed to reflect the national opinion.  Through the enforcement of sodomy laws, many states engaged in “witch hunts” of gay men, which were the legal methods of criminalizing “gay conduct.”[20]  These sodomy laws were upheld by the Supreme Court’s 1986 landmark case, Bowers v. Hardwick,[21] in which the Court upheld a strict Georgia sodomy statue.  The defendant argued the statute that criminalized sodomy violated his constitutional rights to privacy and due process.[22]  Ultimately, the Court ruled in favor of Georgia,[23] essentially validating the sodomy laws of that state and others that were being used to punish gay men across the country.

The issue of sodomy laws would not be revisited by the Court until 2003, when it overturned its ruling in Bowers with its holding in Lawrence v. Texas.[24]  The Court held that the Texas sodomy statute that formed the basis for the case served “no legitimate state interest which [could] justify its intrusion into the personal and private life of the individual.”[25]  The Court set out that the Due Process Clause provides individuals the “full right to engage in their conduct without intervention of the government,” effectively invalidating state statutes prohibiting similar conduct to the Texas statute.[26]

The Impact of the Gay Panic Defense

Lawrence v. Texas stands, today, as a precursor to the national progression of LGBT rights.  Over a decade later, the Supreme Court continued its momentum in this area with its ruling in Obergefell v. Hodges,[27] effectively providing the right to marry to all citizens of the United States.[28]

Despite the public’s progressing views toward LGBT persons, and the law’s reluctant evolution in the same direction, gays and transgenders face violence at disproportionately high rates compared to any other group of people.[29]  The gay panic defense perpetuates the continued violence against LGBT persons by allowing perpetrators to have their sentences mitigated or avoid punishment entirely, solely on the basis of their victim’s actual or perceived sexual orientation or gender identity.[30]

While the gay panic defense itself is unrecognized in any jurisdiction in the country, defendants use it as an underlying defense to typically one of three recognized defenses: self-defense, provocation, or diminished capacity/insanity.[31]  By allowing a defendant to receive any benefit of the doubt for violence he perpetrates against another based solely on the victim’s LGBT status, or perceived status, is to play upon the implicit bias of some jurors and exacerbate the implication that LGBT persons do not matter.

Current and Pending Bans

States must act to proactively put an end to the use of gay panic defenses because of its detrimental impact to the proper function of the criminal justice system.  California, Illinois, and Rhode Island have each succeeded in passing legislation to that effect and are leading the nation on this front.

California

In 2014, California became the first state to ban the gay panic defense from being used in criminal proceedings, stating in relevant part:

For purposes of determining sudden quarrel or heat of passion . . . the provocation was not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship.[32]

The bill limits a defendant’s ability to assert provocation as a defense for murder in reaction to a romantic interaction or attempt by a member of the same sex under the laws of the state. It is similar to the way state and federal laws protect rape victims in criminal trials through rape shield laws that limit a defendant’s ability to defend himself through probing into the victim’s sexual history.

Illinois

Illinois followed, introducing two new provisions which limit the use of the defense:

Provided, however, that an action that does not otherwise mitigate first degree murder cannot qualify as a mitigating factor for first degree murder because of the discovery, knowledge, or disclosure of the victim’s sexual orientation. . . .[33]

Serious provocation is conduct sufficient to excite an intense passion in a reasonable person provided, however, that an action that does not otherwise constitute serious provocation cannot qualify as serious provocation because of the discovery, knowledge, or disclosure of the victim’s sexual orientation. . . .[34]

Illinois’ statute essentially states that the discovery of a victim’s sexual orientation or gender identity may not suffice for an assertion of the provocation defense, and more broadly that any attempt to mitigate the crime of murder will fail if based solely upon a similar discovery.

Rhode Island

Rhode Island’s statute is arguably the most encompassing law of the three states that have banned the gay panic defense.  Rhode Island’s statute bans the use of the “unrecognized” defense under the three official defenses through which it is typically brought: provocation, self-defense and diminished capacity.

[P]rovocation was not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation . . . a defendant does not suffer from reduced mental capacity based solely on the discovery or, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation . . . A person is not justified in using force against another based solely on the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation. . . .[35]

Along with California, Illinois, and Rhode Island, similar legislation to ban the use of gay panic defenses is pending in New Jersey, Washington, and the District of Columbia.[36]  At the federal level, a bill is pending that would prohibit such defenses in federal criminal cases.[37]  The federal bill in relevant part states that “no nonviolent sexual advance or perception or belief, even if inaccurate, of the gender, gender identity or expression, or sexual orientation of an individual may be used to excuse or justify the conduct of an individual or mitigate the severity of an offense.”[38]  While successfully passing this bill at the federal level will eliminate this defense tactic in federal courts, state courts would not be bound by the law, and each state legislature must codify their own individual bans.

Conclusion

The gay panic defense is an outdated defense technique that abuses unfortunate lingering bias against the LGBT community to reduce a defendant’s perceived culpability or absolve them entirely.  Alarmingly, the defense harms LGBT people in the very forum in which they, as victims, should be able to seek justice and protection.

Victims of violent crimes in these cases deserve justice, but rather they and their families are often re-victimized, as violent offenders receive reduced convictions and sentences.  Modern society has progressed to a point where it would be absurd to allow our justice system to be hindered by an obstacle based on apathy for the lives of gay and transgender citizens.  Gay panic defense bans should be universally implemented to protect LGBT victims in the same way that rape shield laws protect victims of sexual assault across the nation.  The gay panic defense is an affront to LGBT people in this country and a weakness within the criminal justice system that must be managed by states taking the initiative to protect all their citizens.

[1] Jackie Salo, Man Who Used ‘Gay Panic’ Defense for Killing Neighbor Avoids Prison, N.Y. Post (Apr. 27, 2018, 5:28 PM), https://nypost.com/2018/04/27/man-who-used-gay-panic-defense-for-killing-neighbor-avoids-prison/.

[2] Id.

[3] Cleve R. Wootson, Jr., A Former Police Employee Said He Killed a Man in ‘a Gay Panic’ – an Actual Legal Defense That Worked, Wash. Post (Apr. 27, 2018), https://www.washingtonpost.com/news/post-nation/wp/2018/04/27/a-former-cop-said-he-killed-a-man-in-a-gay-panic-an-actual-legal-defense-that-worked/?noredirect=on&utm_term=.5aafde75b8f6.

[4] Id.

[5] William Shepherd, Gay and Trans Panic Defenses Resolution, 2013 A.B.A. Resol. 113A, at 6, https://lgbtbar.org/wp-content/uploads/sites/6/2014/02/Gay-and-Trans-Panic-Defenses-Resolution.pdf.

[6] Gay and Trans Panic Defense, LGBT B., https://lgbtbar.org/what-we-do/programs/gay-and-trans-panic-defense (last visited Sept. 1, 2018).

[7] Edward J. Kempf, Psychopathology 477 (1920), https://archive.org/details/39002086348753.med.yale.edu.

[8] Jack Drescher, Out of DSM: Depathologizing Homosexuality, 5 Behav. Sci. 565 (2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4695779.

[9] Jordan Blair Woods et al., Model Legislation for Eliminating the Gay and Trans Panic Defenses, Williams Inst., Sept. 2016, at 3, https://williamsinstitute.law.ucla.edu/wp-content/uploads/2016-Model-GayTransPanic-Ban-Laws-final.pdf.

[10] David Alan Perkiss, A New Strategy for Neutralizing the Gay Panic Defense at Trial: Lessons From the Lawrence King Case, 60 UCLA L. Rev. 778, 797 (2013).

[11] Id.

 

[12] Developments in the Law: Sexual Orientation and the Law, 102 Harv. L. Rev. 1508, 1548 n.187 (1989).

[13] 64 Cal. Rptr. 253 (Ct. App. 1967).

[14] Id. at 256.

[15] Id. at 253.

[16] Id. at 256.

[17] Id. at 255.

[18] Rodriguez, 64 Cal. Rptr. at 255.

[19] Id. at 254.

[20] Richard Weinmeyer, The Decriminalization of Sodomy in the United States, 16 AMA J. Ethics 916, 916-17 (2014).

[21] 478 U.S. 186 (1986).

[22] Id. at 188.

[23] Id.

[24] 539 U.S. 558 (2003).

[25] Id. at 578.

[26] Id.

[27] 135 S. Ct. 2584 (2015).

[28] Id. at 2605.

[29] Jaime M. Grant et al., Injustice At Every Turn: A Report of the National Transgender Discrimination Survey, Nat’l Ctr. Transgender Equality, 2011, at 2, https://endtransdiscrimination.org/PDFs/NTDS_Report.pdf.

[30] Woods et al., supra note 9, at 2.

[31] Shepherd, supra note 5.

[32] Assemb. 2501, 2013 Leg., Reg. Sess. (Cal. 2014).

[33] S. 1761, 100th Gen. Assemb., Reg. Sess. (Ill. 2017).

[34] Id.

[35] H.R. 7066, 2017 Leg. Sess. (R.I. 2018).

[36] LGBT B., supra note 6.

[37] Gay and Trans Panic Defense Prohibition Act of 2018, H.R. 6358, 115th Cong. (2018).

[38] Id. § 3.