Gay panic defense
Encyclopedia
The gay panic defense is a legal defense against charges of assault
or murder
. A defendant using the gay panic defense claims that he or she acted in a state of violent temporary insanity because of a little-known 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 often fails, and has been ruled inadmissable in many jurisdictions because of a complete lack of scientific research to support it.
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).
Assault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
or murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
. A defendant using the gay panic defense claims that he or she acted in a state of violent temporary insanity because of a little-known psychiatric condition called homosexual panic
Homosexual panic
Homosexual panic is a term, first coined by psychiatrist Edward J. Kempf in 1920, describing an acute, brief reactive psychosis suffered by the target of unwanted homosexual advances. Despite the psychotic nature of the disorder, Kempf called it "acute homosexual panic"...
. Trans panic is a similar defense applied towards cases where the victim is a transgender
Transgender
Transgender is a general term applied to a variety of individuals, behaviors, and groups involving tendencies to vary from culturally conventional gender roles....
or intersex
Intersex
Intersex, in humans and other animals, is the presence of intermediate or atypical combinations of physical features that usually distinguish female from male...
person. This defense often fails, and has been ruled inadmissable in many jurisdictions because of a complete lack of scientific research to support it.
Details
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
Crown Prosecution Service
The Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...
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
Rumpole of the Bailey
Rumpole of the Bailey is a British television series created and written by the British writer and barrister John Mortimer which starred Leo McKern as Horace Rumpole, an ageing London barrister who defends any and all clients...
made in 1980). In Australia, it is known as the homosexual advance defence (HAD).
New Zealand
- In 2003, a gay interior designer and former television host, David McNee, was murdered 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 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 this change was more a result of the failed provocation defence in the Sophie Elliott murder trialMurder of Sophie ElliottOn 9 January 2008, 22-year-old Sophie Kate Elliott was stabbed to death by ex-boyfriend Clayton Robert Weatherston , in Dunedin, New Zealand...
of her ex-boyfriend.
United States
- In 1987, Joseph Mitchell ParsonsJoseph Mitchell ParsonsJoseph Mitchell "Yogi" Parsons was an American who was executed for the August 1987 murder of Richard Lynn Ernest. Parsons hitched a ride with Ernest in California and stabbed him to death at a remote rest area in Utah...
, 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 injectionLethal injectionLethal injection is the practice of injecting a person with a fatal dose of drugs for the express purpose of causing the immediate death of the subject. The main application for this procedure is capital punishment, but the term may also be applied in a broad sense to euthanasia and suicide...
at Utah State PrisonUtah State PrisonUtah State Prison, or USP, is one of two prisons managed by the Utah Department of Corrections' Division of Institutional Operations. It is located in Draper, Utah, United States, about 20 miles southwest of Salt Lake City.-History:...
in October 1999.
- In 1995, one of the highest-profile cases to make use of the gay panic defense was the MichiganMichiganMichigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
trial of Jonathan Schmitz, who killed his friend Scott AmedureScott AmedureScott Bernard Amedure was an American murder victim who was fatally shot after revealing on The Jenny Jones Show that he was attracted to an acquaintance. The acquaintance, Jonathan Schmitz–who had a long-standing history of mental illness–later shot Amedure and was found guilty of second degree...
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 provocationProvocation (legal)In criminal law, provocation is a possible defense by excuse or exculpation alleging a sudden or temporary loss of control as a response to another's provocative conduct sufficient to justify an acquittal, a mitigated sentence or a conviction for a lesser charge...
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 ShepardMatthew ShepardMatthew Wayne Shepard was a student at the University of Wyoming who was tortured and murdered near Laramie, Wyoming, in October 1998...
, 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 WyomingWyomingWyoming is a state in the mountain region of the Western United States. The western two thirds of the state is covered mostly with the mountain ranges and rangelands in the foothills of the Eastern Rocky Mountains, while the eastern third of the state is high elevation prairie known as the High...
, 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 VargasElizabeth VargasElizabeth Vargas is an American television journalist who is anchor of ABC's television newsmagazine 20/20 and ABC News Specials. She was previously an anchor of World News Tonight.-Early years:...
, 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 CaliforniaCaliforniaCalifornia is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
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. 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 contestNolo contendereis a legal term that comes from the Latin for "I do not wish to contend." It is also referred to as a plea of no contest.In criminal trials, and in some common law jurisdictions, it is a plea where the defendant neither admits nor disputes a charge, serving as an alternative to a pleading of...
to charges of voluntary manslaughterVoluntary ManslaughterVoluntary manslaughter is the killing of a human being in which the offender had no prior intent to kill and acted during "the heat of passion," under circumstances that would cause a reasonable person to become emotionally or mentally disturbed. In the Uniform Crime Reports prepared by the...
.
- In 2010, Vincent James McGee was charged with capital murder for stabbing and killing white supremacist Richard Barrett in MississippiMississippiMississippi is a U.S. state located in the Southern United States. Jackson is the state capital and largest city. The name of the state derives from the Mississippi River, which flows along its western boundary, whose name comes from the Ojibwe word misi-ziibi...
. McGee claimed that Barrett had dropped his pants and asked McGee to perform a sexual act on him, sending McGee into a panic.
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 AdvocateThe AdvocateThe Advocate is an American LGBT-interest magazine, printed monthly and available by subscription. The Advocate brand also includes a web site. Both magazine and web site have an editorial focus on news, politics, opinion, and arts and entertainment of interest to LGBT people...
. April 12, 2005 by Michael Lindenberger - Guidance To Counsel – Guidance on Prosecuting Cases of Homophobic Crime, Crown Prosecution Service