Gay panic defense

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Gay panic defense^[1] is a legal defense against charges of assault or murder. A defendant using the gay panic defense claims that he acted in a state of violent temporary insanity because of a little-known psychiatric condition called homosexual panic.^[2] Trans panic is a similar defense applied towards cases where the victim is a transgender or intersex person.

[edit] Details

In the gay panic defense, the defendant claims that he or she has been the object of romantic or sexual advances by the victim. The defendant finds the advances so offensive and frightening that it brings on a psychotic state characterized by unusual violence. While never common, use of the gay panic defense has become increasingly rare as homosexuality becomes more accepted. Judges often allow the defense only to establish the defendant's honest belief in an imminent sexual assault.^{[citation needed]}

Guidance given to counsel by the Crown Prosecution Service of England and Wales states: "The fact that the victim made a sexual advance on the defendant does not, of itself, automatically provide the defendant with a defence of self-defence for the actions that they then take." In the UK it has been known for decades as the "Portsmouth defence"^[3][4] or the "guardsman's defence"^[5] (the latter term was used in an episode of Rumpole of the Bailey made in 1980). In Australia, it is known as the homosexual advance defence (HAD).^[6][7]

[edit] Uses of the gay panic defense

[edit] United States

• In 1995 one of the highest-profile cases to make use of the gay panic defense was the trial of Jonathan Schmitz, who killed his friend Scott Amedure after learning, during a taping of the The Jenny Jones Show, that Amedure was sexually attracted to him. Schmitz confessed to committing the crime but claimed that Amedure's homosexual overtures angered and humiliated him. Legally, this defense had a very weak standing for him, since in cases of legal provocation providing for diminished capacity, it is required to have an immediate response. Since he had not acted until three days after the incident, legally, he failed to show any panic-based violent psychosis. He was convicted of second-degree murder and sentenced to 25 to 50 years in prison.

• In 1999 the murderers of university student Matthew Shepard claimed in court that the young man's homosexual proposition enraged them to the point of murder. However, Judge Barton Voigt barred this strategy, saying that it was "in effect, either a temporary insanity defense or a diminished capacity defense, such as irresistible impulse, which are not allowed in Wyoming, because they do not fit within the statutory insanity defense construct." After their conviction, Shepard's attackers recanted their story in a 20/20 interview with Elizabeth Vargas, saying that the murder was a robbery attempt gone awry under the influence of drugs.

• A transgender variant of the gay panic defense was also used in 2004-2005 by the three defendants in the Gwen Araujo homicide case, who claimed that they were enraged by the discovery that Araujo, a transgendered teenager with whom they had engaged in sex, was biologically male. The first trial resulted in a jury deadlock; in the second, defendants Mike Magidson and Jose Merél were convicted of second-degree murder, while the jury again deadlocked in the case of Jason Cazares. Cazares later entered a plea of no contest to charges of voluntary manslaughter.

[edit] New Zealand

• In 2003, a gay interior designer, David McNee, was killed^[8] by a homeless drug user and part time prostitute, Phillip Layton Edwards. Edwards said at his trial that he told McNee he was not gay, but would masturbate in front of him on a "no-touch" basis for money. The defence successfully argued that Edwards, who had 56 previous convictions and had been on parole for 11 days, was provoked into beating McNee after the former television host violated their "no touching" agreement. Edwards was jailed for nine years for manslaughter.^[9][10]

[edit] Footnotes

[edit] References

• Chen, Christina Pei-Lin (2000), Provocation's privileged desire: the provocation doctrine, "homosexual panic," and the non-violent unwanted sexual advance defense. Cornell Journal of Law and Public Policy; September 22^{[dead link]}
• Darwin community legal service - an Australian response, also citing WA recommendations.
• "Homosexual panic" and the mercenary killing - AIC Research and Public Policy Series (Australia).
• Suffredini, K., Pride and prejudice: the homosexual panic defense - An American legal perspective.

[edit] External links

• Gay Panic Defense Ruling - Ruling in the Matthew Shepard Case
• "They asked for it": "murderers of gay and transgender people across the country are still blaming the victims, claiming sexual advances can cause homicidal rage. Now prosecutors are joining together to get rid of the "gay panic" defense once and for all." The Advocate. April 12, 2005 by Michael Lindenberger
• Guidance To Counsel - Guidance on Prosecuting Cases of Homophobic Crime, Crown Prosecution Service