The gay panic defense is a legal defense, usually against charges of assault or murder. A defendant using the defense claims that they acted in a state of violent temporary insanity because of a purported psychiatric condition called homosexual panic.Trans panic is a similar defense applied towards cases where the victim is a transgender or intersex person. This defense has been ruled inadmissible in many jurisdictions because of a complete lack of scientific research to support it. In 2014, California became the first state in the U.S. to officially ban the use of trans panic and gay panic defenses in murder trials.
In the gay panic defense, the defendant claims that they have been the object of homosexual romantic or sexual advances. The defendant finds the advances so offensive and frightening that it brings on a psychotic state characterized by unusual violence.
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" or the "guardsman's defence" (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) strategy. Of the status of the HAD in Australia, Kent Blore wrote:
Although the homosexual advance defence cannot be found anywhere in legislation, its entrenchment in case law gives it the force of law. [...] Several Australian states and territories have either abolished the umbrella defence of provocation entirely or excluded non-violent homosexual advances from its ambit. Of those that have abolished provocation entirely, Tasmania was the first to do so in 2003.
In 2003, a gay interior designer and former television host, David McNee, was killed by part-time sex worker 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 defense successfully argued that Edwards, who had 56 previous convictions and had been on parole for 11 days, was provoked into beating McNee after he violated their "no touching" agreement. Edwards was jailed for nine years for manslaughter.
In July 2009, Ferdinand Ambach, 32, a Hungarian tourist, was convicted of killing Ronald Brown, 69, by hitting him with a banjo and shoving the instrument's neck down Brown's throat. Ambach was initially charged with murder, but the charge was downgraded to manslaughter after Ambach's lawyer successfully invoked the gay panic defense.
On November 26, 2009, the New Zealand Parliament voted to abolish Section 169 of the Crimes Act 1961, removing the provocation defence from New Zealand law, although it was argued by some that this change was more a result of the failed provocation defence in the Sophie Elliott murder trial by her ex-boyfriend.
In 1987, Joseph Mitchell Parsons, who called himself the "Rainbow Warrior", claimed that he killed Richard Lynn Ernest to defend against a homosexual advance, but was unable to present any evidence at trial to support this claim. The victim's family and friends stated in court that Ernest was not gay or bisexual. Prosecution witnesses testified of Parsons' homosexual activity in jail. A forensic psychiatrist from the University of Utah stated that the descriptions of Parsons' sexual history indicated that he "may have been the one initiating the contact and became angry when [Ernest] turned him down." Parsons was executed by lethal injection at Utah State Prison in October 1999.
In 1995, one of the highest-profile cases to make use of the gay panic defense was the Michigan trial of Jonathan Schmitz, who killed his friend Scott Amedure after learning, during a taping of 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 the 1998 murder of university student Matthew Shepard, the defendants 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. This claim was denied by the defendants' girlfriends.
A transgender variation of the gay panic defense was also used in 2004–2005 in California by the three defendants in the Gwen Araujo homicide case, who claimed that they were enraged by the discovery that Araujo, a transgender teenager with whom they had engaged in sex, had male genitalia. Following their initial suspicions about her biological sex, Araujo was "subjected to forced genital exposure in the bathroom, after which it was announced that 'he was really a man'". The defendants claimed that Araujo's failure to disclose her biological sex was tantamount to deception, and that the subsequent revelation of her biological sex "had provoked the violent response to what Thorman represented as a sexual violation 'so deep it's almost primal'". 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. Despite the evidence of premeditation presented by the prosecution, the jury failed to secure first degree murder or hate crime convictions for the defendants.
In 2010, Vincent James McGee was charged with capital murder for stabbing and killing Richard Barrett in Mississippi. McGee claimed that Barrett had dropped his pants and asked McGee to perform a sexual act on him, sending McGee into a panic. McGee pleaded guilty to manslaughter, arson, and burglary on July 28, 2011. He was sentenced to 20 years on the manslaughter charge, 20 years on the arson charge, and 25 years on the burglary charge; 65 years in total.
^Kevin Toolis (25 November 1995). "A Queer Verdict; It happens time and again. The killings are vicious, but the killers escape a murder conviction. Why? Because they field the 'homosexual panic' defence: they claim they lost control when their victim made a pass at them. And juries go along with it.". The Guardian (London). p. T14.
^Galloway, Bruce (1983). Prejudice and pride: discrimination against gay people in modern Britain. London: Routledge & Kegan Paul. p. 67. ISBN0-7100-9916-9.
^Peter Lalor (4 November 1995). "He was just a poof". The Daily Telegraph Mirror.
^"McNee's killer appeals against sentence". The Dominion Post (Wellington, New Zealand). 17 February 2005. p. 3. Phillip Layton Edwards has appealed against his nine-year prison sentence for the manslaughter of television interior designer David McNee, claiming other young men who killed in similar circumstances received shorter jail terms. In the Court of Appeal at Auckland yesterday, his lawyer Roy Wade pointed to two cases in which young men who killed an older man who made homosexual advances received terms of four and three years... Mr McNee, 55, the star of television show My House, My Castle, died in the bedroom of his St Mary's Bay home in July 2003 after choking on his own vomit while unconscious. Edwards had hit him 30 to 40 times in the head and face in a beating a pathologist described as severe.
^Boland Mary Jane (9 July 2006). "Move to end provocation defence for gay murders". The Sunday Star-Times (Auckland, New Zealand). p. 8. The McNee case was a classic example of the law not protecting gay men, Lambert said. "It's abhorrent to suggest that we should downplay the seriousness of what Edwards did because he was hit on."
"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