Dismantling The Homosexual Panic Defense Essay Research

Paper

Getting Away with Murder

Aaron McKinney was recently convicted of second-degree murder for his role in the fatal bludgeoning of Matthew Shepard on October 6th of last year. During the opening statements of his trial, McKinney?s attorneys argued that a homosexual advance from Shepard brought back a traumatic childhood experience which triggered “five minutes of emotional rage and chaos” (Cart “Rests” 1). The claim invoked, which was ultimately rejected by the judge presiding over the case, is known as the “homosexual-panic” or “gay-panic” defense. According to the Harvard Law Review, this defense, a manifestation of the temporary insanity plea, is “premised on the theory that a person with latent homosexual tendencies will have an extreme and uncontrollably violent reaction when confronted with a homosexual proposition” (Stryker 2). The homosexual panic defense?based on the premise that internal homophobia justifies cold-blooded murder?is one of the sad symptoms indicative of the homophobia that exists in American society today.

Homophobia is one of the few prejudices that is still very visible in modern society. Only recently have gay rights become a topic of national concern. Thirty years ago, police raids on gay bars were a fact of life. “You took then for granted,” says activist Joan Nestle, a writer and activist who started going to Greenwich Village bars as a teenager in the 1950s (Swift 2). So when the patrons of a bar called the Stonewall Inn on June 27, 1969 fought back?attacking police with rocks, bottles and fists?that startling act of defiance became an instant watershed event. Despite the civil upheaval that weekend, “the event that would become known as the birth of the gay movement was barely covered by the news” (Swift 2). But the die had been cast and the gay and lesbian movement had been radicalized?new groups of young, gay men and women formed organizations such as the Gay Liberation Front (GLF) and the Gay Activist Alliance (GAA). The Stonewall Rebellion inspired gays to openly fight such vicious discrimination; nevertheless, there are far too many atrocities that currently result from homophobia.

Although American society appears to be increasingly tolerant of homosexuality, there has been a marked rise in hate crimes against homosexuals in recent years. The National Gay and Lesbian Task Force reported a thirty-one percent increase in violence against homosexuals in the past year alone. David Huebner, member of the Board of Directors of the Gay and Lesbian Alliance Against Defamation believes that now more than ever, “anti-gay violence continues to be a widespread and profoundly destructive plague upon the nation” (Huebner interview).

Attacks against gay men tend to be excessively violent and irrational. Motivated by extreme hatred, they are “vicious in scope and the intent is to kill and maim” (Winer 30). One striking feature of such hate-motivated homicides is their gruesome nature. Seldom is a homosexual victim simply shot; he “is more apt to be stabbed a dozen or more times, mutilated and strangled” (Miller 169). This apparent brutality suggests that the attackers are losing control of reality, and are therefore suffering some sort of temporary insanity or diminished capacity. The inability to maintain control is the premise for the homosexual panic defense. On its face, suffering from any type temporary insanity should warrant the use of an insanity defense. However, the societal implications in allowing this defense are too great. Proof of insanity would be far too hard to demonstrate; thus this claim has the potential to be severely abused (Hunter interview). While it may be that these attackers have lost their ability to think rationally, by allowing the homosexual panic defense to bear weight in a court of law, the justice system is not only allowing hate crimes to exist, but is also excusing these murders.

The notion of homosexuality may engender an unjustifiable reaction within homophobic men. While this is apparent from the many gay bashing incidents around the country, there is also a study showing a biological reaction to homosexuality. In 1996, Henry Adams, a psychologist at the University of Georgia, devised a way to see if gay bashing was related to suppressed homosexual urges. He recruited a group of men between the ages of 18 and 31, categorizing them as either homophobic or non-homophobic. They were then shown explicit erotic videos depicting straight, gay and lesbian sex, during which penile circumference was measured by a plethysmograph. As a result of the video depicting gay sex, eighty percent of the homophobic participants showed “moderate to definite tumescense” as compared to thirty percent of the non-homophobic subjects (Stryker 5). Professor Adams concluded that most homophobes “demonstrate significant arousal to homosexual erotic stimuli,” suggesting that homophobia is a form of “latent homosexuality where persons are either unaware or deny their homosexual urges” (Adams 441; “Antigay” 1).

The homosexual panic defense is based on the theory that homophobic men may actually have repressed homosexual urges. Homophobia is often indicative of self-loathing homosexual feelings; many homophobes subconsciously use anti-gay attitudes as a disguise for their own homosexuality. Dr. Patrick Suraci, the author of Male Sexual Armor, suggests that a gay basher wrestling with homosexual impulses of his own, “instead of being able to accept those homosexual feelings within himself, he wants to kill those feelings” (Lawrence 1). Attacks against gays demonstrate an “absolute intent to rub out the human being because of his sexual orientation” (Wilson 42). The attackers project their own self-loathing onto a gay victim. No matter what the basis is for these feelings of hatred towards gay men, they don?t excuse cold-blooded murder.

Dr. Karen Franklin, a forensic psychologist in the Bay Area, believes that hate crimes are motivated by four distinct factors, suggesting that homosexual panic is quite unlikely. Self-defense assailants “appear to interpret their victims? words and actions based on the belief that homosexuals are sexual predators, and typically believe that they are defending themselves from homosexual propositions” (Anti-Gay 1). Another type of assailant is motivated by ideology, they “view themselves as social norms enforcers who are punishing homosexuals for moral transgressions.” These assailants do not object to homosexuality itself, but “to the visible challenges to gender norms, such as male effeminacy or public flaunting of sexual deviance” (Anti-Gay 2). The two other motivations stem from adolescent development needs. Thrill seekers “commit assaults to alleviate boredom, to have fun and excitement and to feel strong.” On the other hand, peer dynamic assailants commit assaults “to prove their toughness and heterosexuality to their friends.” Dr. Franklin?s conclusions suggest that the likelihood of gay panic is rather low. Murders of homosexuals are more likely to be extreme hate crimes based on these motivating factors.

Unfortunately, jurors are still accepting this defense of temporary insanity due to gay panic. Such cases are travesties of our justice system. Just two years ago, after meeting Kenneth Brewer in a gay bar, Stephen Bright, a former hotel executive, went home with him. After an alleged sexual advance, Bright then beat Brewer to death. Although he was charged with second-degree murder, a Hawaiian jury found Bright guilty only of third-degree assault (a misdemeanor) in the killing and sentenced him to one year in jail, with $2000 dollars in fines (Stryker 2; Janofsky 3). He has been out of prison for over a year. Although this incident caused great dismay within the gay community, it failed to make national headlines. The implications of the homosexual panic defense are elucidated by this case; there are too many potential societal costs associated with letting a jury make a biased decision.

The mere fact that juries are able to excuse these actions suggests the inherent homophobia in our society. We cannot let juries set a precedent that it is acceptable to kill out of hatred for gays. Fortunately, juries have become less willing to accept homosexual panic as a defense in recent years. In contrast to the sixties and seventies, the gay panic defense is no longer a guarantee of an acquittal or reduced charges (Hammer 2). Brian Levin, director of the California-based Center on Hate and Extremism, believes that this decline is the result of increasing tolerance of homosexuals in America, noting that “we?ve turned a very big corner in that nearly everyone agrees that violence against [homosexuals] is completely wrong” (Black 1). Richard Haynes, director of the New York City Gay and Lesbian Anti-Violence Project, points to the ludicrous nature of the defense in that “if women could use the equivalent of a ?gay panic? defense for every unwanted advance by men, there would be no heterosexual men left” (Hammer 1).

Huebner is outraged at the use of the homosexual panic defense. “The homosexual panic defense is the legal opposite of the hate crime legislation in our judicial system.” One tries to make hate crimes a more serious offense, whereas the homosexual panic defense is lessening the severity of the most heinous of hate crimes.

Murder is only the most extreme expression of homophobic hate crimes. Nearly half of all gays and lesbians have been threatened with violence; an overwhelming eighty percent have been verbally abused. Gay bashing

Excusing violence motivated by prejudice is simple reprehensible. This defense devalues the life of a gay person, preying on “the emotions of a jury by lessening the value of a gay person?s life because they allegedly made an advance” (Cart “Says” 2). This defense puts the victim on trial, analyzing his actions and deciding where the blame should lie. By concentrating so much on the nature of the sexual advance, the suggestion is that some homosexual advances are not only wrong, but also worthy of murder. The Harvard editors stress that “even when defendants?do not raise homosexual panic as a defense, the admission of evidence of a victim?s homosexuality often results in an undue lenience towards the defendants” (Stryker 2). It suggests that gay men are “asking for it” by their behavior or mere existence. The simple fact of the matter is that excuses for violence based on any prejudice should not be tolerated; a defense claiming fear and panic against an ethnic minority would never be allowed. Whether a person suffered from insanity in an attack against a gay or another minority is irrelevant. If we allow these types of defense to bear weight, the societal repercussions are too severe. It becomes too easy for atrocities in the justice system to exist; it becomes too easy for hate crimes to be excused. We should not allow this defense of extreme hatred to stand in cases involving attacks against gays.

Homophobic hatred cannot be employed as an affirmative defense for criminal acts. Not only is this morally wrong, but the costs to the nation are simply too high if we allow juries with individual prejudices make such critical decisions. We still have a long way to go in the fight against homophobia, but the justice system can act as a catalyst in this process by refusing to allow this defense to exist. There must be an end to the use of the homosexual panic defense; it can no longer be used to excuse the brutality and murder in our society. Judges around the nation must follow the example of Judge Barton Voigt in Aaron McKinney?s case and simply reject this specious defense.

We should be proud of how far we?ve come but we must be aware that we still have a long way to go.

Adams, Henry E. and Bethany A. Lohr and Lester W. Wright. “Is Homophobia

Associated With Sexual Arousal?” Journal of Abnormal Psychology. Vol. 105,

No. 3: 440-445.

“Antigay MPs Challenged to ?Take the Test??Research Shows that Most Homophobes

are Gay.” Outrage. 17 March 1997.

Black, Robert. “Defendant Adopts ?Gay Panic? Defense in Student?s Death.” San

Francisco Chronicle. 27 October 1999.

Cart, Julie. “Defense Rests Case in Shepard Beating Trial.” Los Angeles Times. 2

November 1999.

Hammer, Joshua. “The ?Gay Panic? Defense.” Newsweek. 8 November 1999.

Hunter, James. Personal Interview. 7 November 1999.

Janofsky, Michael. “Judge Rejects ?Gay Panic? as Defense in Murder Case.” New York

Times. 2 November 1999.

Lawrence, J.M. “Psych Experts: Wisconsin Crime Typical of ?Threatened? Straight Men.”

The Boston Herald. 13 October 1998.

Lisker, Jerry. “Homo Nest Raided, Queen Bees Are Stinging Mad.” The New York Daily

News. 6 July 1969.

Malo, Aaron, Matthew Barach and Joseph Levin. “The Temporary Insanity Defense.”

Public Law Research Institute Report. Los Angeles: U of California, Hastings College of the Law, 1994.

“Repressed Homosexuality Could Be Root of Homophobia.” Psychiatric News. 20

September 1996.

Sleek, Scott. “Study Looks at Urges of Homophobic Men.” American Psychological

Association Monitor. October 1996.

Stryker, Jeff. “Asking for it.” Salon Magazine. 23 October 1998.

Swift, Michael. “Stonewall.” ?1997.

Winer, Gary. “Hate Crimes, Homosexuals and the Constitution.” Harvard Civil Rights-

Civil Liberties Law Review, Spring 1993. 29 Harv. C.R.-C.L.L. Rev. 387. ?1993 President and Fellows of Harvard College.