Gay panic defense
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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. 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. This defense has only been banned in California, but the American Bar Association has suggested that other states follow California's lead.
In the gay panic defence, 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).
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.
New South Wales, Tasmania, Western Australia and Victoria have repealed the defence of provocation, whereas , the ACT and the Northern Territory have excluded non-violent homosexual advances. Since January 2016, both Queensland and South Australia are the only jurisdictions within Australia to have not repealed the gay panic defence.
U.S. state bans on gay panic defense
Uses of the gay panic defense
- 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. The jury failed to return the requested hate crime additions to the 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.
- Gay panic defence in UK and NZ. Also known as the homosexual advance defence strategy in Australia. See American and British English differences.
- Lee, Cynthia (2013). "Masculinity on Trial: Gay Panic in the Criminal Courtroom" (PDF). Sw. L. Rev. 42: 817–855.
- Chuang HT, Addington D. (Oct 1988). "Homosexual panic: a review of its concept". The Canadian Journal of Psychiatry. 33 (7): 613–7. PMID 3197016.
- Parker Marie Molloy (September 29, 2014). "California Becomes First State to Ban Gay, Trans 'Panic' Defenses". The Advocate.
- Carter, Terry. "'Gay panic' criminal defense strategies should be curtailed by legislation, ABA House resolves". Retrieved 2015-09-30.
- "No 'Portsmouth defence' Father and child let down and others". The Independent. 6 November 2003. Archived from the original on 2010-02-04.
- 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. ISBN 0-7100-9916-9.
- Peter Lalor (4 November 1995). "He was just a poof". The Daily Telegraph Mirror.
- "Homosexual Advance Defence: Final Report of the Working Party". September 1998. Archived from the original on October 27, 2011. Retrieved 2014-11-07.
- Amanda Meade (23 October 1995). "Gay rally puts 'panic defence' on trial". The Australian.
- Kent Blore (2012). "The Homosexual Advance Defence and the Campaign to Abolish it in Queensland: The Activist's Dilemma and the Politician's Paradox". QUT Law & Justice Journal. 12 (2).
- "NSW Government ditches 'gay panic' defence - Star Observer". www.starobserver.com.au. Retrieved 2016-09-21.
- Crimes Act 1900 (NSW), section 23
- Ferguson, David. "New California law eliminates 'gay panic' as a defense for attacks on LGBT people". Retrieved 2 October 2014.
- "Homicide detectives continue inquiry into designer's death". NZ Herald News. 28 July 2003. Retrieved 15 June 2009.
- "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."
- "Gay MP calls for change to law". The New Zealand Herald. 11 July 2009. Retrieved 4 August 2009.
- Andrew Koubaridis (10 July 2009). "Gay community calls for justice over banjo killing". The New Zealand Herald. Retrieved 4 August 2009.
- Hartevelt, John (27 November 2009). "Parliament scraps partial defence of provocation". The Press. Retrieved 1 October 2011.
- "Executed in Utah". The Washington Times. 1999-10-16. Retrieved 2010-10-05.
- Bryson, Amy Joi (1999-10-10). "Parsons' time running out". Deseret News. pp. 1–3. Retrieved 2010-10-23.
- Burton, Greg (1999-10-16). "Killer Saw Death's Delay as 'Torture'". The Salt Lake Tribune. p. D1. Retrieved 2010-10-26.
- Burton, Greg (1999-10-15). "Parsons Gets Wish: Execution". The Salt Lake Tribune. p. A1. Retrieved 2010-10-26.
- Burton, Greg (1999-10-10). "Scheduled Execution Brings an End to Sad Tale of Two Lives". The Salt Lake Tribune. p. A1. Retrieved 2010-10-26.
- Bettcher, Talia Mae (2007). "Evil Deceivers and Make-Believers: On Transphobic Violence and the Politics of Illusion". Hypatia: A Journal of Feminist Philosophy. 22 (3): 44.
- Szymanski, Zak (2005-09-15). "Two murder convictions in Araujo case". BayAreaReporter. Archived from the original on 2009-02-01. Retrieved 2016-07-17.
- "Investigator: Sexual Advances Led To Barrett's Death". WAPT (TV). May 4, 2010. Retrieved May 4, 2010.
- Ballou, Howard (April 23, 2010). "Money may not have been sole motive for Barrett murder". Jackson, MS: WLBT. Retrieved 9 October 2010.
- Olson, Katy B. (July 28, 2011). "Black man pleads guilty to killing a white supremacist 'who made sexual advances on him'". Daily Mail. Retrieved March 31, 2015.
- 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.
- Gay Panic Defense Ruling – Ruling in the Matthew Shepard Case
- "They asked for it"[dead link]: "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