- Gay panic defense
Gay panic defense is a term used to describe a rare but high-profile legal defense against charges of
assaultor 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. The defense rarely wins acquittals, but it is often successful at reducing culpability and mitigating punishments. In the cases where it does win an acquittal, the verdict is often cited whom as a case of jury nullificationrather than being one based upon legal fact or precedent.
According to the gay panic defense, the defendant claims that he or she was the object of romantic or sexual advances by the victim. The defendant found the propositions so offensive and frightening that it brought on a psychotic state characterized by unusual violence. Though never common, use of the gay panic defense is increasingly rare as homosexuality becomes more accepted. Judges often allow the defense only if used to establish the defendant's honest belief in an imminent sexual assault.
Guidance given to counsel by the
Crown Prosecution Serviceof 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" (e.g. the latter term was used in an episode of Rumpole of the Baileymade in 1980).
The defense often sparks outrage within the gay community when it is used, where it is said to be "blaming the victim." No analogous defense pertaining to heterosexual encounters has been recorded. It is primarily used in the
United States, especially in areas where social fear and disapproval of homosexuality are widespread. It is also occasionally used in cases of violence against transgenderor transsexualpersons.
Uses of the gay panic defense
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 Amedureafter learning, during a taping of the "The Jenny Jones Show" in 1995, 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 Shepardclaimed 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.
The transgender variant of the gay panic defense was also used in 2004-2005 by the three defendants in the
Gwen Araujohomicide case, who claimed that they were enraged by the discovery that Araujo, a transgendered teenager with whom they had engaged in sex with, 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.
* [http://www.highbeam.com/doc/1G1:78475643/Provocations+privileged+desire%7eC%7e+the+provocation+doctrine%2c+%22homosexual+panic%2c%22+and+the+non-violent+unwanted+sexual+advance+defense.html 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]
* [http://www.dcls.org.au/HomosexualPanicDefence.htm Darwin community legal service] - an Australian response, also citing WA recommendations.
* [http://www.aic.gov.au/publications/rpp/43/RPP43_06_panic.pdf "Homosexual panic" and the mercenary killing"] - AIC Research and Public Policy Series (Australia).
* [http://www.bc.edu/bc_org/avp/law/lwsch/journals/bctwj/21_2/03_FMS.htm Suffredini, K., "Pride and prejudice: the homosexual panic defense"] - An American legal perspective.
* [http://www.courttv.com/archive/trials/mckinney/gay_panic_ruling_ctv.html Gay Panic Defense Ruling] - Ruling in the Matthew Shepard Case
* [http://www.findarticles.com/p/articles/mi_m1589/is_2005_April_12/ai_n13606961 "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
* [http://www.cps.gov.uk/publications/prosecution/hmpbcpol.html Guidance To Counsel] - Guidance on Prosecuting Cases of Homophobic Crime, Crown Prosectution Service
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