Most of the time a criminal law that reflects male views and male standards imposes its judgment on men who have injured other men. It is "boys' rules" applied to a boy's fight.(1)
In a recent article,(2) Robert Mison asked the following "simple" question: "Should a nonviolent [homo]sexual advance in and of itself constitute sufficient provocation to incite a reasonable man to lose his self-control and kill in the heat of passion(3) and, as a consequence, be convicted of manslaughter, rather than murder? Mison's answer was that it should not.(4) Although trial courts almost always instruct juries "on the provocation defense in homosexual-advance cases, Mison concluded that "judges should hold, as a matter of law, that a homosexual advance alone is not sufficient provocation to incite a "reasonable man' to kill."(5)
Mison's article is worthy of attention for various reasons. First, he has asked an important question that has not received academic attention.(6) Violence directed at gay men and lesbians, as well as against people suspected of being homosexual,(7) is a grave national problem.(8) As with other forms of bias-related crime, physical attacks motivated by animus towards gay men and lesbians communicate the false message that homosexuals do not deserve to be treated with dignity and respect.(9) Therefore, people should not treat lightly Mison's concern that, "[w]hen defendants who kill in response to homosexual advances are not convicted of murder, courts and juries reinforce the notion that homosexuality is culpable behavior and that gay men do not deserve the respect and protection of the criminal justice system.(10)
Second, Mison's conclusion is likely to strike a responsive chord with many readers. Intuitively, the principle that a man who kills another man in response to a sexual advance should not be allowed to mitigate his crime to manslaughter seems eminently sensible. Because Mison's position seems right at first glance, but is wrong on deeper reflection, his thesis should not go unanswered.
Third, the question of whether a nonviolent homosexual advance (NHA) should mitigate a homicide triggers consideration of issues that go beyond the subject of prejudice directed against gay males. Specifically, the topic raises fundamental questions about the rationale of the provocation defense,(11) the nature of the "Reasonable (actually, Ordinary) Man(12) whose behavior is supposed to guide jury deliberations in heat-of-passion cases,(13) and the extent to which the defense is more-than-ordinarily male-oriented(14) and, therefore, subject to heightened criticism from a feminist perspective.(15)
This Article responds with particularity to Mison's thesis, and reflects more generally on the nature of the defense. As Mison claims, discrimination against gay men and lesbians is a serious legal problem, in part due to public (and judicial) ignorance regarding homosexuals and homosexuality.(16) Nonetheless, Mison fails to make the case for a blanket rejection of the provocation defense in NHA prosecutions. One reason he fails is that he oversimplifies the motivations underlying the violence perpetrated in such cases. The primary reason he fails, however, is that he misapprehends the rationale of the provocation defense and the character of the Reasonable Man in provocation law.
As this Article will show, Mison espouses a utilitarian rationale for abolishing the provocation defense in NHA cases, while the defense is actually based on principles of retribution. He also argues that provocation is a justification defense, when in fact it is an excuse-based defense.(17) And in making his case, Mison writes as if the Reasonable Man in provocation law is a nearly bloodless, emotionless individual, yet this cannot sensibly be the standard in making culpability-based judgments in heat-of-passion cases. Indeed, most of Mison's arguments against the application of the defense in NHA prosecutions would justify the repeal of the provocation doctrine, rather than its repudiation in just one class of killings.
Certain features of the provocation defense are undeniably troubling. Perhaps the most unappealing aspect of the defense is what it says about humanity. Whereas society excuses insane people because they are abnormal - it is comforting for jurors to say that the insane are different from them - it partially excuses some provoked killers because they are all too normal, i.e., like most people, they occasionally lose their self-control and behave badly. And although violent loss of self-control is a human failing, it is particularly a male weakness,(18) which may cast further doubt on the legitimacy of the defense in the eyes of some people.
But the provocation defense has deep roots in Anglo-American jurisprudence.(19) And the doctrine should remain rooted. Finally, a special rule precluding the use of the provocation defense in homosexual advance (or, more generally, sexual advance) cases is too tenuous to withstand scrutiny.
THE STATE OF NHA LAW
According to Mison, trial judges often instruct juries on provocation in NHA cases.(20) Put differently, most courts believe that a jury could find reasonably, that a NHA is sufficient provocation to incite the Reasonable Man to lose his self-control and kill in the heat of passion. Mison states that, although "[t]his sexual-advance defense could be used by a male or a female who claims that he or she killed in reaction to the victim's sexual advance[,] [a]s the law now stands, ... only a homosexual advance can mitigate murder to manslaughter."(21)
Mison provides an example of the NHA defense in action. In Schick v. State, the defendant, a seventeen-year-old youth, testified that he hitched a, ride with the victim after the youth's car broke down.(22) According to the defendant, the two drove around looking for women for sex. At one point the defendant asked the victim, "Where can I get a blow job?" The victim responded, "I can handle that." They continued to cruise, eventually stopped at a store for cigarettes, and then drove to a baseball field. The two wandered into the shadows where the victim pulled down his own pants and underwear, grabbed Schick around the waist, and tried to take hold of Schick's penis. Schick kneed the victim in the stomach, hit him in the face, and then brutally stomped on the man. The victim later died from the beating. Before leaving the scene, Schick took money from the victim's wallet.
Schick was charged with robbery resulting in serious bodily injury, felony-murder, intent-to-kill murder (as an alternative theory), and confinement resulting in serious bodily injury. On the murder count, the defendant sought a voluntary manslaughter instruction. The judge granted his request without objection from the prosecutor. The jury acquitted Schick of murder and robbery, instead returning verdicts of voluntary manslaughter, theft, and confinement resulting in serious bodily injury.
Although the judge sentenced Schick to consecutive terms totalling twenty-eight years imprisonment, Mison is sharply critical of nearly everyone involved in the prosecution: the defense converted a straightforward murder with anti-homosexual overtones(23) into a provocation jury on manslaughter; and the jury accepted the defense, notwithstanding the horrific nature of the crime.
Why do most courts instruct juries on voluntary manslaughter in NHA cases? Mison reasons as follows: American society is "heterocentric," i.e., "it is dominated by and centers around a heterosexual viewpoint."(24) One feature of a heterocentric society is "heterosexism," i.e., "straight chauvinism" or "excessive prizing or favoring of heterosexual persons and values.(25) In a heterocentric society, "heterosexuality is seen as morally and socially superior and preferable to homosexuality."(26) Worse still, institutional and individual "homophobia" - which Mison defines as "a hatred of gay men and lesbians,"(27) or "prejudice, comparable to racism and anti-semitism, rather than an irrational fear [of homosexuals or homosexuality]"(28) - is an outgrowth of a heterocentric society. The NHA defense stems from judicial institutionalization of societal homophobia.
Beyond this, the willingness of juries to accept the NHA defense is the result of the application of the Reasonable Man standard. This standard is used in homicide cases to determine what provocation is sufficient to incite a person to lose self-control and kill. Mison writes: "In order to determine the defendant's culpability in a provocation case, the trier of fact compares the defendant's acts with society's standard of acceptable behavior."(29) In this context, a homosexual advance is considered an affront to prevailing heterocentrist/heterosexist/homophobic norms, and thus may cause passion in the Reasonable Man (i.e., a reasonable heterosexual homophobic man).(30) Thus, the strategy of the defendant in seeking to avail himself of the provocation defense is to convince "the typical American juror - a product of homophobic and heterocentric American society - [to] evaluate the homosexual victim and homosexual overture with feelings of fear, revulsion, and hatred," and, as a consequence, to convince the jury that the defendant's "reaction was only a reflection of this visceral societal reaction: the reaction of a 'reasonable man."'(31)
CRITIQUE OF NHA LAW
Mison contends that "[r]egardless of the ultimate verdict, allowing the defense to argue provocation and instructing the jury on the reduced charge of voluntary manslaughter in [NHA cases] is both immoral and inconsistent with the goals of modem criminal jurisprudence."(32) The NHA defense is immoral because it sends the message that a NHA is sufficient provocation to kill, which "reinforces both the notions that gay men are to be afforded less respect than heterosexual men, and that revulsion and hostility are natural reactions to homosexual behavior."(33) As...