August 5, 2009

Don't ban Gay Panic Defense

"Gay panic" is a controversial defense typically invoked when a heterosexual man murders a gay man, claiming the gay man made an unwanted sexual advance. Critics have called for legislation to abolish the defense on the grounds that it capitalizes on unconscious prejudice by invoking the stereotype of gay men as sexual predators. But legal scholar Cynthia Lee takes a different approach. In a new article, the law professor at the George Washington University Law School argues that abolishing the defense will have the unintended consequence of allowing it to slither into court on the down low.
"Trying to change social norms by suppressing norms with which one disagrees is not the best way to bring about lasting change.... Trying to force such change through legislative or judicial bans will only succeed in driving these arguments underground where they can appeal to subconscious bias."
In addition, attempts to bar the construct may run afoul of defendants' Constitutional right to present a full defense.

Instead, the defense should be allowed but openly challenged. Indeed, Lee argues, the criminal court is the ideal forum for an open and honest discussion of sexual prejudice and the law.

Just as recent research suggests that jurors do a better job in race-related cases when race is made consciously salient, Lee advises the same for sexual orientation bias. She advises prosecutors to identify and attempt to exclude potential homophobes in the jury pool, and to "make sexual orientation salient" throughout the trial by directly challenging defense attempts to stereotype gay men as sexual deviants or predators.

Lee does a great job summarizing the history and contemporary uses of gay panic, including in the high-profile cases of Billy Jack Gaither (the topic of a PBS Frontline episode featuring yours truly), Jonathan Schmitz (referencing the Jenny Jones show case that Greg Herek and I discuss in our encyclopedia article on anti-gay violence), Timothy Schmick, David Mills, Matthew Shepard and Gwen Araujo.

Her lengthy and well-argued treatise draws on disparate theoretical strands, including First Amendment legal theory, cutting-edge social science research on implicit bias, and arguments regarding the competency of judges as evidence gatekeepers.

In the end, she says, "the law can and should play a role in mediating th[e] cultural dispute [over the status of homosexuality] – not by dictating what jurors can and cannot consider, but by making sure jurors are cognitively aware of what exactly is at stake when a gay person is the victim of fatal violence, and the person who killed him claims he did so in response to an unwanted sexual advance."

Cynthia Lee's article, "The Gay Panic Defense," appears in the UC Davis Law Review. email her for a copy. Lee is the author of Murder and the reasonable man: Passion and fear in the criminal courtroom (NYU Press). Most recently, she published a chapter on "Hate Crimes and the war on terror" in Barbara Lee's 5-volume edited treatise, Hate Crimes.