"I don't like gays, okay?": use of the "gay panic" murder defense in modern American courtrooms; the ultimate miscarriage of justice.

Author:Williams, Joseph R.
Position:Wrongful Convictions: Understanding and Addressing Criminal Injustice

    When Matthew Shepard, age 21, made a pass at two men in a gay bar, he should have expected to be beaten, pistol-whipped, tied to a fence, and left to die. When Emile Bernard was stabbed, beaten and blinded after coming on to a hitchhiker, his assailant claimed he could not be guilty since the victim was "asking for trouble" by making sexual advances. If Angie Zapata, age 18, hadn't initially "hidden" that she had male anatomy, her attacker would never have bludgeoned her to death with a fire extinguisher. And when a fellow student shot Larry King, age 15, execution-style in front of their teacher and classmates, his actions were understandable because Larry wore dresses and heels, and said "Love you, baby!" to him the day before. These are actual defenses, offered by real defendants, in United States courts of law that have succeeded in mitigating or excusing real crimes, even today.* (1) On November 14, 2009, the body of Puerto Rican teenager George Steven Lopez Mercado was found a few miles outside of his hometown. (2) His arms, legs, and head had been ripped from his body, burned, and dumped on the side of the road. (3) Why? Mercado was openly gay. (4) While news of this brutal attack sent a shockwave through the gay community in Puerto Rico, what was perhaps most disturbing was the response from law enforcement officials working on the case. In a public statement issued by the police department, an investigator explained why Mercado had been killed and sent a warning to the rest of the gay population that "people who lead this type of lifestyle need to be aware that this will happen." (5)

    Unfortunately, displays of homophobia and ignorance like this one do not exist in isolation; all across the United States, members of law enforcement, members of the public, lawyers, and judges alike engage in this type of harmful behavior every day. (6) Sadly, members of the LGBT community all too often fall victim to this homophobic mindset, and the consequences that result can be devastating.

    In Washington State, for example, former mayor Pete Brudevold was bashed over the head several times with a beer bottle and a flashlight before his attacker strangled him to death. (7) At trial, however, it was not these heinous acts of violence that captured the jury's attention, but rather the fact that Brudevold may or may not have been a homosexual. (8) No fewer than nine lay witnesses were prepared to come to the defense of Brudevold's killer and testify in court that Brudevold had a "reputation" for homosexuality or that he "displayed" homosexual conduct in the past. (9) Arguing that his actions constituted "justifiable and excusable homicide," the defendant put forth expert testimony that he was chronically "homophobic." (10) Brudevold's alleged attempt to grab the defendant's crotch and kiss him was sufficient, according to the defendant, to send him into an uncontrollable homicidal rage, thereby negating the intent element necessary to convict him of first degree murder. (11) This alleged nonviolent, nonthreatening "homosexual advance" was offered to justify the defendant's actions in brutally taking the life of an innocent man, all based on the alleged sexuality of the deceased.

    This note turns a critical eye on the availability of the "gay panic" defense (12) in modern American courtrooms--a defense used to mitigate or excuse the killing of another person based on that person's actual or perceived sexual orientation or sexual identity. (13) Part II attempts to illustrate some of the social and cultural influences that have permeated the American criminal justice system, providing the theoretical framework underlying this defense. Part III examines the mechanics and procedural guidelines of the defense and how it is functionally applied to substantive criminal law. Part IV examines the use of the gay panic defense in actual criminal trials, demonstrating the profound impact it has had on the fabric of American case law. Part V examines federal and New York State hate crime legislation, specifically as applied to violent crimes motivated by sexual orientation and gender identity bias. This section then scrutinizes the functionality of this protective legislation within a system that essentially rewards defendants for carrying out the types of crimes the statutes were enacted to proscribe. Finally, Part VI looks to the American Bar Association's recent resolution urging courts to phase the gay panic defense out of existence and joins in its heartfelt plea to modernize our nation's legal system, acknowledging and respecting the dignity of every human being regardless of their sexual orientation. This section also highlights recent legislation passed by the State of California, which puts an end to the use of this bogus defense in California criminal courtrooms, and urges the New York legislature to likewise take up this cause and offer the promise of equality to all of its citizens--gay or straight.

    There may be little that can be done, from a legal perspective, to transform the inner workings and prejudices of the predisposed human mind. However, at the very least, it is our duty to ensure that our courts of law, heralded as champions for equal justice, cease to function as judicial endorsements of homophobia, and begin to operate in a way that extends equal protection, and equal treatment, to all Americans. Especially in light of recent legislative enactments seeking to penalize and proscribe violence based on animus towards a person's sexuality, (14) there is no room in the modern legal system for a defense that devalues the lives of gay victims and condones bias-motivated violent crimes. There is a fundamental flaw in a justice system that makes the sexual orientation of a deceased victim a threshold issue in determining the culpability of his killer.


    1. Statistical Background of Sexual-Orientation-Based Crimes

      According to data collected under the Hate Crime Statistics Act of 1990, gay people report the greatest number of hate crimes, per capita, as compared with all other groups. (15) Gay people also report person-based hate crimes (as opposed to property-based hate crimes) at a disproportionately high rate. (16) Reporting more than double the number of person-based attacks (e.g., murder, manslaughter, assault, intimidation) than any other group surveyed, it is apparent that "crimes against gay persons are particularly virulent in nature, as well as frequent in number." (17) Unfortunately, this statistical trend has not improved much since the 1990 enactment of the Hate Crime Statistics Act, as evidenced by the FBI's most recent report on national hate crime statistics in 2012. (18)

      These statistics are likely not altogether surprising, however, as animosity and discrimination against members of the gay community have been systematically ingrained in American culture for centuries and reports of violent attacks on homosexuals rarely even make national headlines. Starting as early as the 1970s, violent beatings, murders, and arsons were reportedly attributed to extreme animosity towards homosexuals. (19) When questioned by police officers about the 1979 stabbing of openly gay man, Robert Allen Taylor, his attacker, offered the justification: "I don't like gays, OK?" (20)

      This disturbing trend of violent prejudice continued throughout the 1980s (21) and 1990s, (22) senselessly claiming countless victims in its wake. (23) On October 27, 1992, twenty-two-year-old Navy officer Allen R. Schindler was beaten and stomped to death in a public bathroom by two of his shipmates because he had recently told the captain of the ship that he was gay. (24) The attack on Schindler was so vicious that every organ in his body was destroyed, and his mother had to identify him only by the bloody remains of the tattoos on his arm. (25) During interrogations the day after the murder, one of Schindler's attackers told investigators that he "hated homosexuals"; that he was "disgusted by them"; and that "[Schindler] deserved it," adding, "I don't regret it. I'd do it again." (26) This alarming "justification" for the commission of such atrocious acts of violence exemplifies the danger inherent in a society that tolerates, and in fact, facilitates, behavior in accordance with these strongly held prejudices. Unfortunately, while society has admittedly made great strides toward obtaining LGBT equality in recent years, (27) violent bias-motivated attacks have not decreased in numbers since the turn of the century. (28)

      In fact, according to the New York Police Department, New York City was projected to see "double the number of attacks on gays by the end of 2013" as it did the year before. (29) As recently as May of 2013, a New York City man, Mark Carson, was shot in the face at point-blank range, and killed, while walking down the street with his boyfriend.* (30) According to law enforcement officials, the shooter, thirty-three-year-old Elliot Morales, taunted the men prior to the shooting, calling them "queer" and "f[aggo]t" and asking, "Do you want to die here?" (31) When asked why he shot Carson, Morales simply explained that Carson was trying to act "tough in front of his bitch," boasting, "It's the last thing he'll remember." (32)

      It is apparent from reports like these that violence against members of the gay community is very much a modern-day issue. (33) However, in order to fully comprehend the nature and scope of this longstanding animosity, it is important to undertake a critical examination of the cultural and legal trends that have led us down this unfavorable path.

    2. Religious and Legislative Trends That Have Fostered an Environment Hostile to the Homosexual Population

      [Homosexuality] is a pathetic little second-rate substitute for reality, a pitiable flight from life.... [I]t deserves no encouragement, no glamorization, no rationalization, no fake status as minority...

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