’Gay Panic’ Defense Fading in Murder Cases

by Scott Stiffler

EDGE Media Network Contributor

Thursday July 17, 2008

Is murder an acceptable reaction to the sexual advances of gay men? Homophobes and latent homosexuals seem to think so. Why else would they continue to justify their actions with the rarely successful legal defense known as "gay panic?"

Or at least that's the conclusion of a raft of professional observers and legal experts who have examined the so-called "gay panic." Gay panic boils down a straight man claiming that a gay man came onto him. The straight man loses his reason because he's so wigged out over the overtures. If he kills the gay man, it's acceptable homicide because he was out of his mind with fear--not to mention the fight to preserve his virtue.

In 1920, psychiatrist Edward J. Kempf legitimized this phenomenon by giving it a diagnosis. Kempf identified "acute homosexual panic" as a momentary state of psychosis in which the assailant's violent reaction is triggered by unsolicited romantic or sexual overtures from another of the same sex.

Defense attorneys wasted no time in attempting to link the new but now-medically credible term to the victim's orientation.

Since homosexuality was considered a psychiatric disorder at the time, courts were more receptive to the notion that solicitation by a gay man posed an extreme threat to the psychological integrity of the assailant. That argument played out with varying degrees of success until 1980, when the "Diagnostic and Statistical Manual of Mental Disorders," the bible of the psychiatric professions, removed homosexuality as a legitimate psychiatric diagnosis.

Gay panic continued to be invoked. But its emphasis shifted to mimic the heat of passion defense rather than temporary insanity.

How Gay Panic Is (Mis)Used Today

Today, there are two ways gay panic is used, according to Chicago criminal defense and civil rights attorney Tamara N. Holder: First, by claiming the defendant is latent or has gay tendencies.

Thus, they may feel their identity or integrity is being threatened by "an outwardly gay person," she explained. "It invokes this violent reaction, and the defendant takes out their anger on that person."

The second use of the defense is by "somebody who is not gay, does not like gay people and is approached."

But would a sane, rational individual murder another simply for assuming they are gay and would welcome a sexual proposition?

"Criminal law operates under a reasonable person standard," said Dan Pinello, a professor at the John Jay College of Criminal Justice in New York City. "What would a reasonable person in this factual setting of the case have done? If a gay man were to proposition a straight man, most people would say no or walk away. They would not take out a gun and shoot."

But murder committed in the heat of the moment is rarely the hallmark of rational people.

Evan Harrington, Ph.D., an associate professor of psychology at the Chicago School of Professional Psychology, pointed out that gay panic "is only successful when the individual who has committed the crime is fearful and the jury sees their behavior as reasonable in light of the facts as the defendant believes them to be." Identifying, and sympathizing, with the defendant's perception of reality can be the deciding factor when rendering a favorable verdict.

Someone who kills an ex-lover out of revenge generally doesn't succeed with such a defense. But an individual who is fearful may do better, according to Harrington. Mounting a defense that justifies violence as a reaction inspired by fear does, indeed have a chance of winning.

Holder also notes that the heat of passion argument is "the only one that has been successful to get somebody out of murder or reduce the charge to manslaughter. It's the only excusable murder, as in the case where a spouse walks in on a partner and a lover. There's no premeditation; they just snap."

As a legal strategy, evoking passion is a risky proposition.

"There's an expression in trials," explained Los Angeles Country Deputy District Attorney Robyn Sax (an author and legal analyst who is not expressing the opinions of her office): "If the facts are on your side, argue the side. If the law is on your side, argue the law. If nothing's on your side, argue the Bible."

Sax views gay panic as a last-ditch strategy of desperation: "If someone's assaulted and the facts are clear and there's no defense, you evoke passion."

One highly unusual facet of the gay panic defense is its admission that the accused has committed the crime. "What the defendant is saying is this guy tried to solicit me and my response was I had to assault him." Pinello said. "If there's overwhelming evidence of guilt through eyewitness testimony or forensic evidence, your defenses are not all that viable."

"People being crazy or delusional is one thing, but the gay panic defense shows that they're actually lucid." Sax added. "They're specifically explaining. To say I have a gay panic defense and really be homophobic proves the intent even more."

'As our society changes and becomes more accepting of sexual orientation, gay panic increasingly makes for a very poor defense.'

Acquittal v. Innocent Verdict

Even when the gay panic defense is successful, Pinello notes that acquittal is not the same as a declaration of innocence: "All the jury says is not guilty. It doesn't give an explanation, and acquittals are not appealed. That ends the case forever. The prosecutor doesn't have the opportunity for a second try."

It's a misconception that they get off without consequences, Harrington added: "The person is judged to be completely free of guilt for the crime, but they'll be automatically sent to an institution."

Those who successfully employ the gay panic defense avoid jail but often spend more times behind the bars of a mental institution, where they remain until they can prove they're no longer dangerous.

Still a Popular Defense Tactic

In conducting research for his book, "Gay Rights and American Law," Pinello looked at thousands of cases over the past twenty years and found hundreds of references to the gay panic defense. But what was most interesting was its almost universal lack of success. "All of the appellate courts hearing the claims turned it down as invalid," he said.

Most of these were appellate court decisions where the defendant attempted to invoke the gay panic defense but was refused by the judge. Then, after a conviction at trial, the defendant appealed and one of the allegations of fault in the lower court was disallowing of the gay panic claim. In every case Pinello investigated where this occurred, the appellate court agreed with the trial court that this was not a legitimate defense.

Harrington, drawing on results from a Lexus/Nexus search, notes that fourteen of fifteen gay panic cases he found were unsuccessful. The murderers appealed their conviction, but none got higher than the district court.

Not coincidentally, the defense is used more frequently in states like Louisiana, Minnesota, Pennsylvania, Nebraska and Arkansas: "If this is a representative sample, the claim is made more in the Midwest or the Western states," Harrington concluded. Of the times when gay panic is successful, "It's usually because the prosecutor offers a plea deal.

Holder emphasizes that successful use of the gay panic defense happens only when it is the sole rationale; other contributing factors can easily damage the integrity of gay panic.

"You have to also look at whether the person was intoxicated and acted out," she said. "If so, now you've added another element to the crime." Robbery or other forms of premeditation on the part of the defendant can also doom the gay panic defense.

Most notably, that happened with the Matthew Shepard case. In that 1999 trial, Shepard's murderers were barred from using gay panic when the judge equated that strategy to an "irresistible impulse" defense, which Wyoming does not allow. Upon conviction, the defendants changed their story and claimed the murder was the result of a robbery attempt.

The Curious 'Curious George' Case

More recently, in another notorious murder, 76-year-old Allen Shalleck, an animator who originated the "Curious George" television series, was murdered by two men. The murder followed an evening of socializing that Shalleck thought was the precursor to a threesome--but which defendants Vincent Puglisi and Rex Ditto planned to use as the precursor to a robbery and murder.

A June 18, 2008 Edge article by Kilian Melloy notes that following the viewing of a Liza Minelli TV special, Ditto removed his clothing and Shalleck began to spank him with a paddle. Taking the paddle from Shalleck, Ditto began beating him with it. When that proved ineffective, Ditto and Puglisi repeatedly stabbed him with kitchen knives.

Assistant Public Defender Shari Vrod, in an unusual twist on the gay panic defense, claimed that Puglisi did not believe Ditto was sincere when he first articulated his plan to rob and kill Shalleck, and that he didn't attempt to stop him because Puglisi was "out of his element after nearly three decades with his former lover, enamored of Ditto, and easily led by the young man."

Ditto pleaded guilty in 2007 and is currently serving a life sentence. Puglisi's trial, which is ongoing, continues to invoke the sexuality of all its participants.

A Successful Gay Panic Defense

In her 2003 book "Murder and the Reasonable Man," author Cynthia Lee discusses gay panic and other defenses involving claims of reasonableness. Citing one of the rare cases where gay panic has been successfully employed, Lee notes the case of Timothy Schick.

While hitchhiking, he accepted a ride from Stephen Lamie. "Shick asked him whether he knew where they could find some girls, where he could get a blowjob," Lee said. "Lamie drove them to a baseball field."

As the two men were walking to the field, Lamie tried to touch Shick's penis. "Lamie's sexual advance provoked him. The jury found that persuasive and convicted him of voluntary manslaughter instead of murder."

The one thing all these cases have in common is the gender of the victim and defendant. Although Lee can identify at least one case where a heterosexual woman reacted violently against the sexual advances of a lesbian, gay panic is overwhelmingly a male-on-male crime.

Sax attributes this to the biological imperative, citing social science data that concludes, "Men have something in their genes where they tend to be more homophobic, so they tend to act more irrationally. Part of the irrational behavior stemming from homophobia is shooting or beating up the perpetrator; whereas women, in the reasonable response, say I'm not interested and walk away."

Juries seem to agree, since the gay panic defense is overwhelmingly unsuccessful when they take into account whether assault and murder are reactions proportionate to the offense of unwanted sexual advances.

For Sax, "It's a poor defense and I would never use it. As our society changes and becomes more accepting of sexual orientation, gay panic increasingly makes for a very poor defense."

Scott Stiffler is a New York City based writer and comedian who has performed stand-up, improv, and sketch comedy. His show, "Sammy's at The Palace. . .at Don't Tell Mama"---a spoof of Liza Minnelli's 2008 NYC performance at The Palace Theatre, recently had a NYC run. He must eat twice his weight in fish every day, or he becomes radioactive.