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The gay panic defense is a legal strategy in which a defendant claims they acted in a state of violent, temporary insanity, committing assault or murder, because of unwanted same-sex sexual advances.[1][2][3] A defendant may allege to have found the same-sex sexual advances so offensive or frightening that they were provoked into reacting, were acting in self-defense, were of diminished capacity, or were temporarily insane, and that this circumstance is exculpatory or mitigating.[4]
A manifestation of homophobia and transphobia,[5][6]trans panic is a closely related defense applied in cases of assault, manslaughter, or murder of a transgender individual, with whom the assailant(s) engaged in sexual relations unaware that the victim is transgender until seeing them naked, or further into or after sexual activity.[1][2][7]
Broadly, the defenses may be called the gay and trans panic defense or the LGBTQ+ panic defense.[4][7][8] They are typically used by heterosexual cisgender men against gay men and trans women.[1][2]
History
The gay panic defense grew out of a combination of a legal defense from the mid-nineteenth century and a mental disorder described in the early twentieth. It seeks to apply the legal framework of the temporary insanity defense, using the mental condition of "homosexual panic disorder".
Psychiatrist Edward J. Kempf coined the term "Homosexual panic" in 1920 and identified it as a condition of "panic due to the pressure of uncontrollable perverse sexual cravings".[10] Kempf coined the term homosexual panic for the condition, and classified it as an acute pernicious dissociative disorder, meaning that it involved a disruption in typical perception and memory functions.[citation needed] Kempf identified the condition during and after World War I at St. Elizabeths Hospital in Washington, D.C.[11]
The disorder was briefly included in DSM-1 as a supplementary term in Appendix C[12] but did not appear in any subsequent editions of DSM and thus is not considered a diagnosable condition.[13]
In contradistinction to the legal defense created later and named after it, the onset of the condition was not attributed to unwanted homosexual advances. Rather, Kempf stated that it was caused by the individual's own "aroused homosexual cravings".[14]
Homosexual panic as a mental health disorder is distinct from the homosexual panic defense (HPD; also known as gay panic defense) within the legal system. Whereas homosexual panic disorder was at one point considered a diagnosable medical condition, the HPD implies only a temporary loss of self-control.[15]
Jurisdictions
Australia
In Australia, it is known as the "homosexual advance defence" (HAD).[16][17] 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.[18]
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).[19] 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) are not a valid defense.[18]
South Australia was the first Australian jurisdiction to legalize consensual homosexual acts in 1975; however, as of April 2017[update] it was the only Australian jurisdiction not to have repealed or overhauled the gay panic defense.[20] In 2015 the South Australian state government was awaiting[21][22] the report from the South Australian Law Reform Institute and the outcome of the appeal to the High Court from the Court of Criminal Appeal of South Australia. In 2011 Andrew Negre was killed by Michael Lindsay bashing and stabbing him. Lindsay's principal defense was that he stabbed Negre in the chest and abdomen but Negre's death was the result of someone else slitting Negre's throat. The secondary defense was that Lindsay's action in stabbing Negre was because he had lost self-control after Negre made sexual advances towards him and offered to pay Lindsay for sex. The jury convicted Lindsay of murder and he was sentenced to life imprisonment with a 23-year non-parole period. The Court of Criminal Appeal upheld the conviction, finding that the directions to the jury on the gay panic defense were flawed, but that every reasonable jury would have found that an ordinary person would not have lost self-control and acted in the way Lindsay did.[23] The High Court held that a properly instructed jury might have found that an offer of money for sex made by a Caucasian man to an Aboriginal man in the latter's home and in the presence of his wife and family may have had a pungency that an unwelcome sexual advance made by one man toward another in other circumstances would not have.[24][25] Lindsay was re-tried and was again convicted of murder. The Court of Criminal Appeal upheld the conviction,[26] and an application for special leave to appeal to the High Court was dismissed.[27] In April 2017 the South Australian Law Reform Institute recommended that the law of provocation be reformed to remove discrimination on the basis of sexual orientation and / or gender, but that the removal of a non-violent sexual advance as a partial defence to murder be deferred until stage 2 of the report was produced.[20]
In April 2019, the government of South Australia announced that the gay panic defense will be repealed. A "community consultation phase" is being set up and a bill will soon be introduced to the Parliament of South Australia and passed and implemented by 2020.[28][29]
New Zealand
In 2003, a gay interior designer and former television host, David McNee, was killed[30] by a 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.[31][32]
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.[33][34]
On 26 November 2009, the New Zealand Parliament voted to abolish Section 169 of the Crimes Act 1961, removing the provocation defense from New Zealand law, although it was argued by some that this change was more a result of the failed provocation defense in the Sophie Elliott murder trial by her ex-boyfriend.[35]
Philippines
Lance Cpl. Joseph Scott Pemberton, a U.S. Marine from Massachusetts, was convicted of homicide (but not of murder) in the killing of Jennifer Laude in a motel room in Olongapo in the Philippines in 2014. Police said that Pemberton became enraged after discovering that Laude was a transgender woman. After Pemberton served six years of a ten-year sentence, President Rodrigo Duterte gave him an "absolute pardon." Sen. Imee Marcos said the pardon would help the Philippines maintain "very deep and very cordial" relations with the US.[36]
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"[37][38][39] or the "guardsman's defence".[40] The latter term was used in a 1980 episode of Rumpole of the Bailey.
United States
Federal laws
In 2018, Senator Edward Markey (D-MA) and Representative Joseph Kennedy III (D-MA) introduced S.3188[41] and H.R.6358,[42] respectively, which would ban the gay and trans panic defense at the national level. Both bills died in committee.[43][44]
In June 2019, the bill was reintroduced in both houses of Congress as the Gay and Trans Panic Defense Prohibition Act of 2019 (S.1721 and H.R.3133).[45][46] The bills would prohibit a federal criminal defendant from asserting, as a defense, that the nonviolent sexual advance of an individual or a perception or belief of the gender, gender identity, or expression, or sexual orientation of an individual excuses or justifies conduct or mitigates the severity of an offense.[43][44]
State laws
States that have banned (blue) or are considering bans (pink) on the gay and trans panic defense, as of July 2020
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.[47][48] The American Bar Association unanimously passed a resolution in 2013 urging governments to follow California's lead in prescribing explicit juror instructions to ignore bias and to educate prosecutors about panic defenses.[49][50]
Following the ABA's resolution in 2013, the LGBT Bar is continuing to work with concerned lawmakers at the state level to help ban the use of this tactic in courtrooms across the country.[50]
Bans and consideration of bans for gay and trans panic defense
On September 27, 2014, Governor Jerry Brown signed Assembly Bill No. 2501, making California the first state in the US to ban the gay and trans panic defense.[79] 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.[51]
In August 2017, Bruce Rauner, Governor of Illinois, signed SB1761,[52] banning the gay and trans panic defenses in that state.[80]
In June 2018, H7066aa and S3014,[53] bills to prohibit the gay and trans panic defense passed the Rhode Island Assembly with overwhelming margins: The House voted 68–2[81] and the Senate voice voted 27-0.[82] The Governor of Rhode Island signed the bill into law a month later in July 2018. The law went into effect immediately.[83]
In 2019, the New York State Legislature once again considered banning the gay panic defense.[84] For the 2019–2020 session, the bills considered were S3293 and A2707; prior versions of the bill have died in committee (S7048, 2013–14 session; A5467/S499, 2015–16 session; A5001/S50, 2017–18 session).[64] On June 30, 2019, the day of the NYC Pride March, Governor Andrew Cuomo signed the ban into law, effective immediately.[85]
In April 2019, both houses of the Hawaii State Legislature passed bills to prohibit the gay and trans panic defense (HB711 and SB2). A conference committee was set up to reconcile the two versions of the bill; the reconciled bill passed both houses on April 26, 2019 and was signed into law two months later, on June 26, 2019, by the GovernorDavid Ige. It went into effect immediately.[55][86][87]
In May 2019, the Nevada Legislature passed SB97 to prohibit the gay and trans panic defense used within Nevada state courts and tribunals. On 14 May 2019, GovernorSteve Sisolak signed SB97 into law. The law went into effect on 1 October 2019.[57][88]
Also in June 2019, the Maine Legislature passed a bill (House vote 132-1 and Senate vote 35-0), which was signed by GovernorJanet Mills on June 21, 2019 to ban the "gay and trans panic defence" effective immediately.[91][56]
As of June 2019, similar bills have been introduced in several other states and the District of Columbia.[43][44]
New Jersey passed a bill without a single vote in opposition to ban the gay and trans panic defense; it was signed into law in January 2020.[92]
The gay panic defense is generally invoked in cases where the guilt of the defendant is unquestioned, but only 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.[98] 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.[98]
Historically, in US courts, use of the gay panic defense has not typically resulted in 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.[99]
The most famous case in which this occurred was the "Jenny Jones" case, in which 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.[100] Some instances where the gay panic defense has been invoked include:
In August 1954, William T. Simpson, a 27-year-old air steward for Eastern Air Lines, was murdered by Charles W. Lawrence and Lewis Richard Killen in a "lovers' lane" area of North Miami, Florida. For months, Lawrence had been posing as a hitchhiker on Biscayne Boulevard; after he was picked up, Killen would trail the car in a green Chevrolet and rob the driver who had picked up Lawrence. During the course of the investigation, Milt Sosin, a reporter for The Miami News, wrote that Lawrence and Killen had chosen the area deliberately to target homosexual victims. Lawrence confessed to shooting Simpson while "resisting his advances" and stated that "Simpson started to get nervous ... I didn't mean to shoot him. I mean[t] to fire through the windshield and frighten him and keep him there. I must have hit him."[101] Lawrence and Killen were convicted of manslaughter instead of first-degree murder, possibly due to negative local press coverage of homosexuality and the characterization of Simpson as "a pervert" during the trial.[102]
Another early 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 26 September 1965.[103][98] 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.[103] 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.[103]
"Chet" Jackson was murdered by John Stephan Parisie on 12 April 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 pm.[104][105] The bloodied Jackson, who said he had been shot, asked to be taken to a hospital, where he died the next morning at approximately 10:30 am.[104][105] Parisie was found asleep in Jackson's car at 5:22 am the same morning of 13 April, in possession of Jackson's wallet and wedding ring.[104] A jury convicted Parisie of murder, and he was sentenced to a term of 40 to 70 years' imprisonment on February 27, 1969.[105] On the stand, Parisie testified that he had shot Jackson with a stolen gun.[104] 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 "[Parisie] refused, he would have to walk."[104] 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.[104] A 1972 appellate court decision upholding the trial verdict ruled that the defense strategy was based upon "homosexual panic" leading to insanity as Parisie testified he just "blew up, went crazy" after being propositioned.[104] 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[105] during jury selection, ruling the defense had failed to demonstrate relevancy.[104] The U.S. 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.[105]
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."[106] 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.[106]
William C. Dubbels was murdered by Robert J. Shelley early in the morning of 3 September 1975 in Franklin, Massachusetts.[107] 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. 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.[107] 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.[107] 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.[108]
Ronald Landry was stabbed to death by William H. Doucette Jr. on 6 February 1979 in a motel in Malden, Massachusetts.[109] 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.[109] Doucette was convicted of first-degree murder and was sentenced to life imprisonment.[109] 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."[109]
John Dunkin was shot and killed by Ronald Williamson the night of October 31, 1981 in Wasilla, Alaska.[110] 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. 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.[110] 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.[110]
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.[111] 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.[111] During rebuttal, the prosecution presented testimony from 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.[111]
Mario Escamilla stabbed a man to death after being invited inside the victim's house on 3 July 1986 in Lincoln, Nebraska.[112] 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.'"[112]
In 1987, Joseph Mitchell Parsons, who called himself the "Rainbow Warrior",[113] 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.[114] The victim's family and friends stated in court that Ernest was not gay or bisexual.[115] Prosecution witnesses testified of Parsons' homosexual activity in jail.[116] 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."[117] Parsons was executed by lethal injection at Utah State Prison in October 1999.[113]
Stephen Lamie picked up Timothy Schick while Schick was hitchhiking on the evening of August 6, 1988 in Lafayette, Indiana; 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,[118] but was released in 2001.[119]
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.[120][121] Lowe testified he "freaked, got scared" and then "lost it mentally for a second or two."[120] 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. Lowe was convicted of second-degree murder and use of a deadly weapon in the commission of a felony.[120] 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.[121] Lowe was granted parole in 2004.[122]
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. In cases of legal provocation providing for diminished capacity, it is required that the provocation have an immediate response. As Schmitz did not act until three days after the incident, he was convicted of second-degree murder and sentenced to 25 to 50 years in prison.[100] Schmitz was incarcerated in the minimum-security Parnall Correctional Facility until he was paroled on 22 August 2017.[123]
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.[124] The two were accused of planning his death for two weeks after being angered over what they said was a sexual advance.[125][126] 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.[127] In a later interview, Butler said, "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.[128] Friends of Gaither stated that it was unlikely that Gaither had propositioned the duo, as he was characterized as shy.[129] 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;[127] the pair were convicted and sentenced to life imprisonment without parole.[130]
Larry King, a 15-year-old student, was murdered by fellow 14-year-old classmate Brandon McInerney on 12 February 2008. McInerney was charged as an adult. The first trial ended in a mistrial (hung jury) after defense lawyers claimed their client had "reached an emotional breaking point in response to King's advances"[131] and that he felt threatened by King, who had "returned taunts from [McInerney] and other boys with sexual overtures and declarations of love."[132] 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.[131]
In March 2008, Terrance Hauser was stabbed to death by Joseph Biedermann; the two lived in neighboring apartment complexes in Hoffman Estates, Illinois.[133] Both men were drinking together at a local bar when Biedermann was refused further service by the bartender due to intoxication; both men returned to Hauser's apartment to continue drinking, and Biedermann later testified that he passed out, then woke to find Hauser threatening him to disrobe at swordpoint.[134] According to Biedermann, he managed to obtain a dagger and stabbed Hauser 61 times during his escape.[134] Despite the violence of the stabbing, which fractured Hauser's spine and shoulder blade, the room showed no signs of a struggle; two wine glasses on a table had not been overturned.[135] Biedermann then ran back to his apartment, where he woke up his girlfriend at 3 A.M.; she described him as being covered in blood and bearing a cut to his forearm, which they drove to the hospital to have treated.[136] At the trial, prosecutors only gave the jurors the option to convict Biedermann for first-degree murder (indicating premeditation).[134] Although interested observers stated that Biedermann was using the gay panic defense,[137] Biedermann's attorney was careful to state that he had acted strictly out of self-defense. The jury acquitted Biedermann in July 2009.[134][138]
In 2010, Vincent James McGee was charged with capital murder for stabbing and killing Richard Barrett in Mississippi.[139] McGee claimed Barrett had dropped his pants and asked McGee to perform a sexual act on him, sending McGee into a panic.[140]
in 2011, Pedro Garcia and Wilfredo Sanchez beat Francisco Gonzalez Fuentes, placed him in the bathtub, and stabbed him to death before dismembering his body and packing it into garbage bags. At trial, Garcia stated that Fuentes had told others that they were in a relationship, and Garcia attacked him because he was terrified that someone would think he was gay. The prosecution argued that Garcia was Fuentes’ live-in boyfriend. Sanchez was sentenced to death and Garcia received 60 years after agreeing to testify against Sanchez.
Marco McMillian, an openly gay candidate for the mayor of Clarksdale, Mississippi, was murdered by Lawrence Reed on 26 February 2013. Reed's defense relied on his claim that he killed McMillian in self-defense after an attempted rape. Reed, who was taken into custody after crashing McMillian's automobile, had earlier confessed to the deputy guarding him while he was being treated for crash-related injuries. Reed was convicted and sentenced to life imprisonment.[141]
James Miller of Austin, Texas used the gay panic defense at his trial following the killing of his neighbor, Daniel Spencer, in September 2015. The two were playing guitar together and drinking, and Miller testified he thought Spencer had propositioned him. The prosecution stated that Miller had stabbed Spencer in the back and that Miller showed no sign of harm, undercutting Miller's defense that deadly force was needed because of the disparity in the two men's sizes and ages.[142] In April 2018, a jury found Miller guilty of criminally negligent homicide, but not guilty of manslaughter and murder.[143] Miller received a sentence of six months jail time, 10 years probation, 100 hours of community service, and $11,000 in restitution to Spencer's family.[144]
A trans panic defense was 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 a penis. Following their initial suspicions about her birth-assigned sex, Araujo was "subjected to forced genital exposure in the bathroom, after which it was announced that she was 'really a man'".[145] The defendants claimed that Araujo's failure to disclose her birth-assigned sex and anatomy was tantamount to deception, and that the subsequent revelation of her birth-assigned sex "had provoked the violent response to what Thorman represented as a sexual violation 'so deep it's almost primal'".[145] 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 did not return the requested hate crime additions to the convictions for the defendants.[146]
Angie Zapata was beaten to death by Allen Andrade in July 2008. After Andrade learned that Zapata had a penis, she smiled at him and said "I'm all woman"; his defense attorney stated the smile "was a highly provoking act, and it would cause someone to have an aggressive reaction" when arguing to have the charge against him dropped to second-degree murder. Judge Marcelo Kopcow rejected that argument,[147] and Andrade was sentenced to a mandatory sentence of life in prison without the possibility of parole after he was convicted by a jury of first-degree murder in 2009 after two hours of deliberation. The conviction included a hate crime endorsement, believed to be the first instance of a hate crime application when the victim was transgender.[148]
Islan Nettles was beaten to death in Harlem just after midnight on August 17, 2013.[149] 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.[150] Dixon pleaded not guilty to first-degree manslaughter at his indictment.[151] Dixon was not charged with murder, which would have required proof of intent, nor was he charged with a hate crime.[151] During his confession, Dixon said that his friends had mocked him for flirting with Nettles, not realizing that she was transgender. 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.[150] Dixon pleaded guilty and received a sentence of 12 years' imprisonment, a sentence that Nettles' mother felt was too lenient.[152]
^ abJordan Blair Woods; Brad Sears; Christy Mallory (September 2016). "Gay and Trans Panic Defense". The Williams Institute - UCLA School of Law. Archived from the original on November 30, 2019.
^Kempf, Edward (1920). "The psychopathology of the acute homosexual panic. Acute pernicious dissociation neuroses". Psychopathology. pp. 477–515. doi:10.1037/10580-010.
^American Psychiatric Association (1952). Diagnostic and Statistical Manual (1 ed.). Washington, D.C.: American Psychiatric Association Mental Hospital Service. p. 121.
^"DSM". American Psychiatric Association. American Psychiatric Association.
^"McNee's killer appeals against sentence". The Dominion Post. 17 February 2005. p. 3. Phillip Layton Edwards has appealed against his nine-year prison sentence for the manslaughter of television interior designer David McNee, claiming other young men who killed in similar circumstances received shorter jail terms. In the Court of Appeal at Auckland yesterday, his lawyer Roy Wade pointed to two cases in which young men who killed an older man who made homosexual advances received terms of four and three years ... Mr McNee, 55, the star of television show 'My House, My Castle', died in the bedroom of his St Mary's Bay home in July 2003 after choking on his own vomit while unconscious. Edwards had hit him 30 to 40 times in the head and face in a beating a pathologist described as severe.
^Boland, Mary Jane (9 July 2006). "Move to end provocation defence for gay murders". The Sunday Star-Times. p. 8. The McNee case was a classic example of the law not protecting gay men," Lambert said. "It's abhorrent to suggest that we should downplay the seriousness of what Edwards did because he was hit on.
^Toolis, Kevin (25 November 1995). "A Queer Verdict; It happens time and again. The killings are vicious, but the killers escape a murder conviction. Why? Because they field the 'homosexual panic' defence: they claim they lost control when their victim made a pass at them. And juries go along with it". The Guardian. p. T14.
^California State Assembly. "The Gwen Araujo Justice for Victims Act". Session of the Legislature. Statutes of California (House Resolution). State of California. Ch. 550 p. 4617. An act to add Section 1127h to the Penal Code, relating to crime. [Approved by Governor September 28, 2006. Filed with Secretary of State September 28, 2006
^"The Gwen Araujo Justice for Victims Act". California Secretary of State. 22 February 2005. Retrieved 1 June 2019. SEC. 3. Section 1127h is added to the Penal Code, to read: 1127h. In any criminal trial or proceeding, upon the request of a party, the court shall instruct the jury substantially as follows: "Do not let bias, sympathy, prejudice, or public opinion influence your decision. Bias includes bias against the victim or victims, witnesses, or defendant based upon his or her disability, gender, nationality, race or ethnicity, religion, gender identity, or sexual orientation."
SEC. 4. The Office of Emergency Services shall, to the extent funding becomes available for that purpose, develop practice materials for district attorneys' offices in the state. The materials, which shall be developed in consultation with knowledgeable community organizations and county officials, shall explain how panic strategies are used to encourage jurors to respond to societal bias against people based on actual or perceived disability, gender, including gender identity, nationality, race or ethnicity, religion, or sexual orientation and provide best practices for preventing bias from affecting the outcome of a trial.
^ ab"Resolution"(PDF). American Bar Association, House of Delegates. August 12–13, 2013. Retrieved 21 November 2019.
^ abCalifornia State Assembly. " Session of the Legislature". Session of the Legislature. Statutes of California (House Resolution). State of California. Ch. 684. An act to amend Section 192 of the Penal Code, relating to manslaughter. [Approved by Governor September 27, 2014. Filed with Secretary of State September 27, 2014.] [...] SECTION 1. Section 192 of the Penal Code is amended to read: 192. Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: (a) Voluntary—upon a sudden quarrel or heat of passion. [...] (f) (1) For purposes of determining sudden quarrel or heat of passion pursuant to subdivision (a), 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. Nothing in this section shall preclude the jury from considering all relevant facts to determine whether the defendant was in fact provoked for purposes of establishing subjective provocation. (2) For purposes of this subdivision, "gender" includes a person's gender identity and gender-related appearance and behavior regardless of whether that appearance or behavior is associated with the person's gender as determined at birth.
^ abcLee, Cynthia (2008). "The Gay Panic Defense". UC Davis Law Review. 42: 471–566. Retrieved 1 June 2019.
^Salerno, Jessica M.; Najdowski, Cynthia J.; Harrington, Evan; Kemner, Gretchen; Dave, Reetu (February 2015). "Excusing Murder? Conservative Jurors' Acceptance of the Gay-panic defense". Psychology, Public Policy, and Law. 21 (1): 24–34. doi:10.1037/law0000024. Retrieved 1 June 2019. The gay-panic defense is a specific type of provocation defense in which the defendant claims that the crime in question was the result of a sudden and intense passion provoked by the victim's unwanted same-gender sexual advance. It is primarily used by straight men claiming that they found the experience of an unwanted same-gender sexual advance so upsetting that they temporarily became enraged and lost control of their own behavior (Lee, 2008). Chen (2000) argues that the acceptance of a gay-panic defense implies acceptance of a nonviolent same-gender sexual advance as an adequate trigger to cause a person to fall into an uncontrollable state of panic. If jurors collectively agree that the reaction was reasonable, they can find the defendant guilty of a lesser offense, which often results in a lesser sentence (Lee, 2008).
^ abcPeople v. Rodriguez, 256 Cal. App. 2d 663 (California Court of Appeals, Second District, Division Three 5 December 1967) ("Also cited as 64 Cal. Rptr. 253").
^ abcdefghPeople v. Parisie, 287 N.E.2d 310 (Illinois Appellate Court — Fourth District 26 June 1972) ("also cited as 5 Ill.App.3d 1009 (1972)").
^ abcdeParisie v. Greer, 671 F.2d 1011 (7th Cir. [U.S. Court of Appeals for the Seventh Circuit] 18 February 1982).
^ abState v. Thornton, 532 S.W.2d 37 (Missouri Court of Appeals, Kansas City District 31 December 1975).
^ abcCommonwealth v. Shelley, 373 N.E.2d 951 (Supreme Judicial Court of Massachusetts, Norfolk 23 February 1978) ("also cited as 374 Mass. 466 (1978)").
^Commonwealth v. Shelley, 381 Mass. 340 (Norfolk County 21 August 1980).
^ abcdCommonwealth v. Doucette, 391 Mass. 443 (Supreme Judicial Court of Massachusetts, Middlesex 14 March 1984) ("also cited as 462 N.E.2d 1084").
^ abcWilliamson v. State, 692 P.2d 965 (Court of Appeals of Alaska 21 December 1984).
^ abcPeople v. Lang, 782 P.2d 627 (Supreme Court of California 7 December 1989) ("also cited as 49 Cal. 3d 991 (1989) and 264 Cal. Rptr. 386").
^ abState v. Escamilla, 511 N.W.2d 58 (Supreme Court of Nebraska 28 January 1994) ("also cited as 245 Neb. 13").
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