Mimesis Law
18 September 2020

Banning The “Gay Panic” Defense: A Solution In Search Of A Problem

September 16, 2016 (Fault Lines) — The Williams Institute, a think-thank at the UCLA School of Law, recently published a white paper proposing model legislation to ban the “gay panic” defense. Essentially, it’s a defense to murder or lesser assaultive crimes, in which the defendant claims that something related to the victim’s homosexuality or perceived gender (such as an unwanted sexual advance) establishes a defense to their crime, either because of

–Provocation (“defendants argue that the discovery, knowledge, or potential disclosure of a victim’s sexual orientation or gender identity was a sufficiently provocative act that drove them to kill in the heat of passion”);

–Diminished capacity (“defendants argue that the discovery, knowledge, or potential disclosure of a victim’s sexual orientation or gender identity caused them to have a temporary mental breakdown, driving them to kill[.]”);  or

–Self defense (“defendants argue that they had a reasonable belief that they were in immediate danger of serious bodily harm based on the discovery, knowledge, or potential disclosure of a victim’s sexual orientation or gender identity.”)

So, is there a rash of sleazy defense lawyers whose underhanded trial strategy is to appeal to the lowest common denominator, and make disgusting appeals to the latent (or explicit) homophobia of the jury? The authors of the article are glad you asked, because they’ve included a helpful summary of cases in all three categories, which I will now summarize in excruciating detail. (Ed. Note: ca. 12,000 words omitted; Noel slapped upside the head.)

Basically, of the 20 cases (all from different states) the authors uncovered in their exhaustive research Westlaw search, not a single one reflects a successful assertion of the gay panic defense. Nevertheless, they propose the following model legislation:

Section 101. Restrictions on the Defense of Provocation

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.

Section 102. Restrictions on the Defense of Diminished Capacity

A defendant does not suffer from reduced mental capacity based on 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.

Section 103. Restrictions on the Defense of Self-Defense

A person is not justified in using force against another based on 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.

The tl;dr version of the article is:

  1. There’s this kinda distasteful defense that some schmucks try to use as a justification for killing gay people.
  2. As far as we can tell, it never works.
  3. But here’s how to fix it!

Of course (as the authors note), successful assertions of the gay panic defense won’t make it into Westlaw or Lexis, since if it was successful the only thing on the record would be a not guilty verdict. Yet the authors don’t even present any anecdotal evidence of a trial where it was brought up and the defendant was acquitted.

What’s more, there are procedural safeguards against naked appeals to prejudice. If the sexual orientation of a victim is something that the defense is likely to make an issue of, the prosecutor and/or judge can voir dire the jury panel over it, and strike those who can’t be objective.  Defense experts testifying on the defendant’s state of mind can be cross-examined, and if necessary, countered by other experts. In any case, the ultimate practical effect of such laws would manifest itself in the instructions that are read (or not read) to the jury. But again, there’s no evidence presented that juries are actually buying this defense.

So why is banning the gay panic defense a bad idea? In the practical sense, it isn’t. It’s not a good idea, either, just a waste of time and energy; more ink expended in the printing of law books, a solution to something that isn’t a problem. In the larger sense, though, it’s a symptom of the sloppy thing that permeates criminal defense policy: that every problem, everywhere, even the non-existent ones, can be solved by passing a law.

3 Comments on this post.

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  • Chris
    15 September 2016 at 3:31 pm - Reply

    “including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant”

    I wonder if the authors believe any touching can be non-“forcible.” Such as rubbing the shoulders etc.

    Sounds like same sex unwanted sexual advances would be considered morally superior under the law, or unequal protection of the law generally for people using force to fend off unwanted “straight” sexual advances.

    • Jamie
      20 September 2016 at 1:52 pm - Reply

      Even IF rubbing someone’s shoulders was considered non-forcible, it’s not an assertion that it’s objectively unreasonable to respond with force because the advance was unwanted. The assertion is that it’s objectively unreasonable to respond with force to the sudden discovery that someone isn’t straight. Even if the way you found that out was because they made a pass at you.

      That’s a lot of clauses in each sentence and I had to re-read it a few times to be sure. (I think the writer used the style guide written by whomever is responsible for most of the crap my city council passes.)

  • Jamie
    20 September 2016 at 1:10 pm - Reply

    I found a few cases pretty quickly. Mostly turns up in mitigating circumstances rather than outright acquittal. Here’s one acquittal though.

    http://www.huffingtonpost.com/michael-rowe/man-acquitted-of-murder-a_b_231748.html

    Not in the US, but for a few examples, with some context:
    http://www.vice.com/read/gay-panic-is-still-a-murder-defence-in-some-states-of-australia

    It does work (or at least it has). And that’s why I’m actually concerned that this kind of law is *worse* than useless – it’s got some real potential to do harm.

    tl;dr version:
    1 – this definitely won’t prevent people from making the claim that they did something because ‘ew, gay people’
    2 – overstating use/effectiveness may backfire and increase violence towards trans women and gay men

    The first point is already suggested by the article. If there’s a problem that can be fixed with jury instructions then tailor something for that. Some of the most-cited examples of this being ‘successful’ are cases that involved plea bargains rather than juries. One is a case where the two men who got a plea bargain got it in exchange for agreement to testify against the other two.

    To the extent the ‘gay panic/trans panic’ defense is a problem I’d suggest that it’s not so much in the courts as it is the reporting. More sensationalistic news sources aren’t going to respond to anything other than market pressure.

    At the other end there’s the illusion of ‘impartiality’ in mainstream reporting. It’s a different type of public pressure I suppose, but repeating a defendant’s claims of being ‘surprised’ by a penis… isn’t better journalism if they omit that the defendant had been previously busted frequenting an area popular with trans sex workers… or that the two men met via grindr.

    That’s fixed primarily by changing attitudes, not the other way around. There’s certainly room for adopting new professional standards to recognize (and yes, promote) changing standards for respect. Sometimes laws are more effective if they’re understood as a symbolic gesture.

    What could possibly go wrong?
    People who are marginalized or discriminated against for multiple parts of their identities are more likely to be poor and less likely to steer groups with well-funded legislative initiatives. The typical murder victim looks more like the former than the latter.

    The people who are most likely to believe that getting hit on by a gay man is a good reason to kill him seem unlikely to be persuaded by this law. A jury swayed by it is likely to pick up the information without anything that directly violates ANY reasonable law. If anything, making an ineffective law against it will trigger a bunch of new publicity and the impression that ‘those people’ are trying to force their values ‘down our throats’.

    In short, it seems like a short-sighted ‘solution’ from people out of touch with the risk it could just be great way to further normalize violence among insecure men and boys living in exactly the kinds of places that still condone beating or killing gays. (And where trans women are assumed to be gay men trying to trick straight men into becoming gay.)