"Gay Panic" Not A Great Murder Defense
"Gay" is not the bad word that it was once perceived to be in the United States. We have come a long way in the tolerance and acceptance of all people and lifestyles, even when they may be unlike our own. So now, the "gay panic" defense sometimes used by lawyers in murder cases in the past is just simply not at all acceptable or believable.
The gay panic defense has been used in murder cases in which gay men have allegedly made sexual advances on straight men and were murdered for doing so. The reasoning for the murder is usually that the straight man was so alarmed, flipped out and outraged by the sexual advances from another man that he killed the gay man while he was crazy with fear.
Psychiatrist Edward J. Kempf lent some legitimacy to the theory of gay panic in 1920 by diagnosing it as "acute homosexual panic." According to Kempf's analysis of the situation, a straight man who is hit on by a homosexual one can go into a momentary state of psychosis and react violently towards the ardent gay man.
In what may be called a defense desperation by criminal defense lawyers representing murder suspects in gay panic cases, a line of defense citing Kempf's medical terminology has been used in an attempt to show that the murder was committed during a psychological break brought on by the victim's actions.
In 1920, homosexuality was considered a psychological disorder and courts considered this defense more credible; however, the "Diagnostic and Statistical Manual of Mental Disorders"—the recognized authority on psychiatric conditions—removed homosexuality as a legitimate psychiatric diagnosis in 1980.
Despite the fact that homosexuality was determined not to be a psychiatric condition, but instead a biological sexual orientation, the gay panic defense has continued to be used, mostly unsuccessfully, by criminal defense lawyers who would like to place the blame on the victim rather than their clients if at all possible.
An article in Edge Boston examined how the gay panic defense is used and misused in current murder cases. Chicago criminal defense and civil rights lawyer Tamara N. Holder explained to Edge that there are two ways that the gay panic defense is currently used.
In once scenario, the criminal defense lawyers claim that their client is a latent homosexual or has gay tendencies. Therefore when they were approached by a gay man, they may have felt that their identity or integrity was being threatened by the outwardly gay man and thus a violent reaction was invoked and the anger was taken out on the gay person, resulting in their death.
The second approach is when a man who is not gay and does not like gay people or is homophobic is approached by a gay man, a violent episode is spurred.
Since criminal law operates under the "reasonable person" standard, the jury must decide what a reasonable person would have done under an identical set of circumstances. The reason the gay panic defense fails under this standard is that a reasonable person would not kill someone over an unwanted sexual advance or suggestion. Most reasonable and sane people would simply walk away without a violent episode.
Evan Harrington, Ph.D., an associate professor of psychology at the Chicago School of Professional Psychology, told Edge that the gay panic defense can only be successful if the jury can see the defendant's behavior as reasonable in light of the facts of the case as the defendant believes them to be.
This only works if the jury finds that the person who committed the crime was scared out of their mind by the advances of the gay person, which is rare and unlikely in today's society, yet not impossible. Occasionally a murder defense using the gay panic theme is successful if the jury is sympathetic and believes that extreme fear provoked the violence.
The gay panic defense is a last resort option for criminal defense lawyers. If the facts of the case weigh heavily against the defendant and the law classifies their actions as murder, the only option is to evoke passion and claim that the murder happened in the heat of the moment during a psychological break. Still in some cases, the gay panic defense is rejected by the judge, leaving the criminal defense lawyer with nothing to work with.
Gay panic is an extremely risky option because it puts the defendant in the unique position of admitting their guilt, yet arguing that the crime was not a conscious choice they made, but a reaction to the actions of the victim.
In cases in which this criminal defense actually works, the verdict is "not guilty" and the case ends without the defendant being put in jail, however they are automatically sent to a mental institution in which they can often spend more time than they would have in jail. They are confined to the mental institution until they can prove that they are no longer dangerous, which can be difficult for someone who has explained to the court that they are homophobic.
