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.


Anonymous said...

"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."

Either it's legal to kill a gay man for an unwanted sexual advance or it isn't. That's what's at stake. I've seen how the gay panic defense has been used in the past, it's a horrible thing for any family member or friend of a gay victim to have to sit through.

FpsY said...

I disagree entirely with Cynthia Lee's arguments. Australian courts abolished the 'Homosexual Advance Defense' as it was called in our country under the law of provocation. Legal protection of homosexual men and women in Australia from law reform saw changes in the social attitudes towards the gay community. Once that reform came into effect, this defense strategy to the charge of murder of homosexual men ceased.

It is not acceptable to leave the jury without definitive guidance as to the objective criterion to be applied. The function of the criminal law is to identify and define the relevant criteria. It is not proper to leave the decision to the essentially subjective judgment of the individual jurors who happen to be deciding the case. Such an approach is apt to lead to idiosyncratic and inconsistent decisions.

If women were also to put forward a defense of sexual advance, I think the courts would be surely tested :)

Anonymous said...

Well said, Fatima. I have not one grain of sympathy for the men who commit such crimes. As a woman, I have had to live my entire adult LIFE subject to occasional unwanted sexual approaches, and if I'd stabbed them all I'd still be in jail now!

If, every so often, a man has to find out what every woman in the world has to put up with from the onset of puberty - well, so what? May they learn an important lesson instead of lashing out like cornered animals.

As an aside, there's another reason it may be better to have such men off the streets; it's because they are more than likely projecting. There's a reason these terrified straight boys assume that all gay men are sexual predators - it's probably because they are predators themselves.

Anonymous said...

Basically what Lee is saying here is that we should not try to rid discrimination from our government as long as the law is a reflection of the prejudice of the people. Does this mean that we should sit back and allow people to be victimized because they don't fit into the "social norm"?

If a group of people are not seen equally in the eyes of the law, how can people, who see this group treated as different and lesser by their government, learn to view these people as equal to themselves and as part of their own community?

Our government speaks not only for the heterosexual people of the nation, but also for the homosexuals, and a majority agreement should not be allowed to silence the voices of the minority for the purpose of perpetuate a moral injustice. As long as there is no "straight panic defense," the gay panic defense emphasizes the division between people of differing sexual orientations and legitimizes the inequality favored by this majority.

I prefer equality over discrimination, any day.