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.

Accidental deportations: Mentally ill at risk

I've blogged a few times about deportations in which ICE officials accidentally scoop up U.S. citizens and whisk them off to foreign lands where their families cannot find them. Mentally ill people are especially at risk, due to their potential to become confused. But in one of the more outlandish cases, 52-year-old Leonard Robert Parrish, an African American chef in Houston, was recently detained by ICE because a jailer thought his Brooklyn accent sounded foreign.

As it turns out, such cases are far from rare. A special report in the San Francisco Chronicle suggests that among the 400,000-odd people detained annually by ICE, hundreds may be U.S. citizens who are wrongly suspected of being foreign.

Once detained, these people may find it difficult to get out of the system. Immigration detainees, unlike those in the criminal justice system, lack due process protections such as the right to legal counsel or telephone calls. Many are poor, and some are mentally ill.

"If it can happen to U.S. citizens, you can imagine how few procedural protections are available to everybody else," says Chuck Roth, litigation director for the National Immigration Justice Center in Chicago.

My advice: If you are working with anyone whose citizenship status is less than crystal-clear (such as naturalized citizens), encourage them to get their papers in order. In this time of anti-immigration paranoia, better safe than sorry.

The investigative report is online HERE.

Lane on "diagnostic madness of DSM-V"

To linger anxiously, even bitterly, over job loss is all too human. To sigh with despair over precipitous declines in one's retirement account is also perfectly understandable. But if the APA includes post-traumatic embitterment disorder in the next edition of its diagnostic bible, it will be because a small group of mental-health professionals believes the public shouldn't dwell on such matters for too long.

That's a sobering thought -- enough, perhaps, to make you doubt the wisdom of those updating the new manual. The association has no clear definition of the cutoff between normal and pathological responses to life's letdowns. To those of us following the debates as closely as the association will allow, it's apparent that the DSM revisions have become a train wreck. The problem is, everyone involved has signed a contract promising not to share publicly what's going on.

That's a snippet from Christopher Lane's latest essay on the upcoming DSM-V, in Slate magazine. Lane is an English professor and author of Shyness: How Normal Behavior Became a Sickness, a wonderful expose of how the DSM-III came to be.

Related article: Wrangling over psychiatry's bible, Los Angeles Times

Photo: Wikimedia public access, Train wreck at Gare Montparnasse, Paris 1895

New sex offender studies

The booming sex offender industry is producing lots of literature these days. A few current studies of interest, all with negative findings:

Child porn use not linked to contact crimes

Men who use internet child pornography are not at high risk of committing hands-on sex offenses, especially if they do not have a prior criminal record of such activities, suggesting that other risk factors must be taken into account to identify potential offenders.

The article, The consumption of Internet child pornography and violent and sex offending, by scholars in Switzerland and Germany, is available online for free, through the open-access site BioMed Central.

Actuarials fail to predict juvenile recidivism

There's a lot of demand these days for tools to predict which juvenile sex offenders will reoffend. The recidivism rates are very low, which makes this task especially difficult. In this study, Jodi Viljoen of Simon Fraser University and colleagues tested four widely used instruments, and found that none of them significantly predicted sexual reoffending. The instruments were the ERASOR (Estimate of Risk of Adolescent Sexual Offense Recidivism), the Youth Level of Service/Case Management Inventory (YLS/CMI), the Psychopathy Checklist: Youth Version (PCL:YV), and the Static-99.

The abstract of Assessment of Reoffense Risk in Adolescents Who Have Committed Sexual Offenses: Predictive Validity of the ERASOR, PCL:YV, YLS/CMI, and Static-99 is available through Criminal Justice and Behavior's "online first" website, but you need a subscription to see the whole article.

Adam Walsh: Only an illusion of safety

This project used a sample of sex offenders in New York State who are registered under the federal Adam Walsh Child Protection and Safety Act (AWA), to perform the fist empirical assessment into whether the Act's implementation is likely to increase public safety. The answer, unsurprisingly, is a resounding no. As it turns out, the offenders classified as lowest risk (Tier 1) reoffended at higher rates than those classified as moderate (Tier 2) to high risk (Tier 3).

Again, you can see the abstract of this study, The Adam Walsh Act: A False Sense of Security or an Effective Public Policy Initiative? by Naomi J. Freeman and Jeffrey C. Sandler, at Criminal Justice Policy Review's "online first" site, but the article requires a subscription.

Top confession expert barred from testifying

Over the past few decades, police have developed a set of sophisticated procedures to get suspects to confess to crimes. Most suspects who succumb to the so-called "Reid" tactics of manipulation and deception are actually guilty. But some minority -- the exact proportion is unknown -- are not.

How can judges and jurors tell the difference?

The short answer is, they generally cannot. False confessions can look amazingly real. In the Central Park jogger case, for example, juveniles who falsely confessed to gang-raping a woman energetically demonstrated their (false) actions on videotape. Five juveniles were convicted on the basis of the false videotaped confessions, despite no physical evidence linking them to the crime. It wasn't until years later that the true culprit (a lone sexual predator) was identified.

To jurors, judges, police, and other members of the public, confession evidence is overwhelmingly powerful evidence of guilt. After all, it goes against common sense to think that someone would confess to a crime he did not commit.

Luckily, researchers have laboriously combed through confessions that later turned out to be false, and have found markers of unreliability. Among the markers are lengthy and intense interrogations, "contamination" through police feeding of crime facts to suspects, and a lack of guilty knowledge on the part of the suspect. Certain individual factors (such as youth, low intelligence, naivete, and acquiescence to authority) also put some suspects at heightened risk.

A leading expert in this area is Richard Leo, a law professor at the University of San Francisco and author of Police Interrogation and American Justice. Because laypeople lack the expertise to tease out telltale markers of unreliability, Leo has educated jurors and judges about this science.

That is just what he was slated to do in the Michigan case of Jerome Kowalski, who confessed on videotape to the 2008 shooting deaths of his brother and sister-in-law. Leo was prepared to testify about how Kowalski might have come to believe he committed the crime despite having no recollection of it.

Typically, expert witnesses are allowed to testify when they can provide information that is beyond the common knowledge of jurors, and will assist such "fact-finders" in arriving at the truth. Leo believed his testimony could "be important at trial to help the jury understand police interrogation methods and 'how some methods can lead to a false confession,' " according to a report in today's Livingston Daily Press and Argus.

But, in a ruling that shocked the defense attorneys and has created some hubbub among forensic psychologists around the country, a judge barred both Leo and a clinical psychologist from testifying, saying jurors can use their common sense to determine whether the confession is valid.

"We have no defense at this point," attorney Walter Piszczatowski told a newspaper reporter after the hearing. He asked Judge Theresa Brennan to put the case on hold while he appeals, but she denied that request too. The trial is set to start in October.

Further resources:

" 'I'd know a false confession if I saw one': A comparative study of college students and police investigators," by Saul M. Kassin, Christian A. Meissner, and Rebecca J. Norwick, Law & Human Behavior (2005).

Livingston Daily Press and Argus coverage of this case is HERE.
My review of Leo's Police Interrogation and American Justice is HERE.
A related blog post, "Canada: How false confessions occur," is HERE.

A book with chapters by psychologists Sol Fulero and Bruce Frumkin on the admissibility of this type of confession testimony is expected out later this year from the American Psychological Association press. The book, Interrogations and confessions: Research, practice, and policy, is being edited by Christian Meissner and G. Daniel Lassiter, both of whom have extensive expertise in this field.

On police, profiling, and Henry Gates

Guest essay by Sam Sommers*

When it comes to matters of race, the problem with asking how much progress we've made is not that there isn't a right answer. It's that there are two. Ask White Americans about race relations, and most focus on how far we've come. Ask Black Americans, and you're more likely to hear how far we still have to go.

Have we made strides when it comes to racial profiling? Sure. The practice now has a well-known name, jurisdictions keep statistics to track it, and commissions have been established to eradicate it. But what the arrest of Dr. Gates crystallizes is that we still have a ways to go. Whether the neighbor who called police or the officer who arrived on the scene consciously considered race is beside the point. What we know from scores of studies is that race influences our mental calculus -- sometimes when we aren't aware of it, when we don't want it to, and even on the police force.

In psychological research, participants exposed to subliminal photos of Black men are quicker to identify ambiguous images as weapons. Respondents in police simulation studies -- including actual officers -- are more likely to mistake innocuous items for guns when held by a Black man. These are basic human tendencies to which many of us fall victim, yet they aren't inevitable with proper vigilance or training.

That's what makes knee-jerk denials that race played a role in Gates' arrest so disappointing. I'm not arguing that race was the only reason things went down as they did. I wasn't there; details remain fuzzy. But let's be honest: White Harvard professors just don't get charged with disorderly conduct in their own homes. And when Black men of less renown are arrested under similar circumstances, we don't hear about it on the news.

Sure, it's dangerous to read too much into the anonymous comments of web users and the incendiary efforts of bloggers who seek to draw attention (and web traffic) to themselves. But to me, one of the most striking aspects of this story is how angry some White people seem to be in response to it, as if the mere suggestion that race had anything to do with Gates' arrest is a) ridiculous, b) offensive, and c) an indcitment of the American way of life. Check out, for example, some of the initial reader responses to the on-line story of the arrest in my hometown Boston Globe.

I've said it before, and I'll say it again: there are few things White Americans find more aversive than talking about race. But to dismiss out of hand the relevance of race to Gates' arrest flies in the face of empirical data, not to mention good, old-fashioned, common sense. You don't have to be an expert to understand that things like this just don't happen to White professors at Harvard.

*From the New York Times, posted with the written permission of Sam Sommers. For the entire Times on-line forum, featuring invited essays by seven leading experts, click HERE. Sommers has also written a further update on the case, More Gates Fallout, at his informative blog, Science Of Small Talk.

Sommers is an award-winning social psychologist at Tufts University in Massachusetts who has testified in murder trials as an expert witness on racial bias. My prior posts about his work include:

• Racial bias in jury selection is common yet denied, study finds

• Colorful juries more competent