The Gay Panic Defense
In this Article, Professor Lee examines the use of gay panic defense
strategies in the criminal courtroom. “Gay panic” refers to the situation
when a heterosexual man charged with murdering a gay man claims he
panicked and killed because the gay man made an unwanted sexual
advance upon him. Professor Lee argues that gay panic arguments are
problematic because they reinforce and promote negative stereotypes
about gay men as sexual deviants and sexual predators. Gay panic
arguments are also troubling because they seek to capitalize on
unconscious bias in favor of heterosexuality, which is prevalent in today’s
heterocentric society. In light of such concerns, most critics of the “gay
panic defense” have proposed that judges or legislatures bar gay panic
arguments from the criminal courtroom. Professor Lee takes a contrary
position and argues that banning gay panic arguments from the criminal
courtroom is not the best way to undermine the damaging effects of such
arguments, and may have the unintended consequence of bolstering their
Professor of Law, The George Washington University Law School. A big thanks
to Holning Lau, Rebecca Stotzer, I. Bennett Capers, José Gabilondo, Fred Lawrence,
and Lu-in Wang for reading and commenting on earlier drafts of this Article. I also
thank my colleagues, Michael Abramowitz, Paul Butler, Naomi Cahn, Alexa Freeman,
Phyllis Goldfarb, Orin Kerr, Sarah Lawsky, Joshua Schwartz, and Jonathan Siegel for
helpful feedback on this paper when I presented it to the George Washington
University Law School faculty on May 16, 2008. I thank Nancy Ehrenreich, Rashmi
Goel, Camille Nelson, Marc Poirier, L. Song Richardson, Tom Romero, and Cynthia
Roseberry for feedback on this Article when I presented it as a work-in-progress at the
LatCrit Conference in Miami, Florida on October 6, 2007. I also received helpful
feedback from Fabio Arcila, Alafair Burke, Margaret Burnham, I. Bennett Capers,
Elaine Chiu, Leighton Jackson, Paula Johnson, and Adele Morrison when I presented
a much earlier version of this Article at NEPOC on July 6, 2006. I also want to thank
Tamara Lawson, Catherine Smith, Frank Valdes, Robert Wesley, Adele Morrison, Russ
Powell, Garrett Epps, Penelope Pether, Michael Selmi, David Sklansky, Tom Dienes,
Cathy Lawton Abrazos, and Nura Maznavi for helpful comments on this paper. I also
thank Evan Deichert, Peter Feldman, Matthew Korn, Hans-Christian Latta, and
Lauren Schmidt for excellent research assistance. Parts of this Article are adapted
with permission from CYNTHIA LEE, MURDER AND THE REASONABLE MAN: PASSION AND
FEAR IN THE CRIMINAL COURTROOM (NYU Press 2003).
472 University of California, Davis [Vol. 42:471
corrosive potential. Rather than precluding defendants from making gay
panic arguments, Professor Lee argues that the criminal courtroom is the
place where such arguments can and should be aired and battled.
TABLE OF CONTENTS
INTRODUCTION ................................................................................... 473
I. HISTORICAL ORIGINS OF THE CONCEPT OF GAY PANIC ............. 482
II. GAY PANIC IN THE CRIMINAL COURTROOM .............................. 489
A. Excuse or Justification? ...................................................... 489
B. Insanity ............................................................................. 491
C. Diminished Capacity ......................................................... 494
D. Provocation ....................................................................... 499
E. “Trans Panic” .................................................................... 513
F. Self-Defense ....................................................................... 517
III. WHY GAY PANIC DEFENSE STRATEGIES SHOULD NOT BE
CATEGORICALLY BARRED .......................................................... 521
A. Lessons from the Matthew Shepard Trial ........................... 523
B. First Amendment Theory ................................................... 532
C. Social Science Research on Implicit Bias ............................ 536
D. Institutional Competency ................................................... 549
IV. SUGGESTIONS FOR REFORM ...................................................... 557
A. Providing Guidance to Trial Courts ................................... 557
B. Questions to Ask During Jury Selection .............................. 559
C. Making Sexual Orientation Salient Through Gender and
Sexual Orientation Switching ............................................ 564
2008] The Gay Panic Defense 473
On February 12th, an openly gay 15-year-old boy named Larry
who was an eighth-grader in Oxnard, California was murdered
by a fellow eighth-grader named Brandon. Larry was killed
because he . . . was gay. Days before he was murdered, Larry
asked his killer to be his Valentine . . . . And somewhere along
the line the killer Brandon got the message that it’s so
threatening and so awful and so horrific that Larry would want
to be his Valentine that killing Larry seemed to be the right
thing to do. And when the message out there is [that it is] so
horrible . . . to be gay you can be killed for it, we need to
change the message.
Ellen DeGeneres (Feb. 29, 2008)1
Americans today have mixed feelings about homosexuality.2 A 2007
Gallup/USA poll found that while 48% of those polled felt
homosexuality was an acceptable alternative lifestyle, 46% felt the
opposite way.3 Another 2007 poll found that 51% of those polled
thought homosexual behavior is morally wrong, and only 35% felt
homosexual behavior is acceptable.4 Americans are also deeply
divided over whether gays and lesbians should be allowed to marry.5
1 DeGeneres spoke about the killing of Lawrence King on the Ellen DeGeneres
show during an opening segment on February 29, 2008. For footage of this clip see The
Ellen DeGeneres Show, A Tragedy That Should Never Have Happened,
http://ellen.warnerbros.com/2008/07/a_tragedy_that_should_never_ha.php (last visited
Oct. 16, 2008).
2 Toni Lester, Adam and Steve v. Adam and Eve: Will the New Supreme Court Grant
Gays the Right to Marry?, 14 AM. U. J. GENDER SOC. POL’Y & L. 253, 254 (2006) (noting
that “[w]hile studies indicate that most Americans support the adoption of laws that
grant gays the most basic of civil rights, like the right to the kind of privacy in the
bedroom that Lawrence [v. Texas] envisioned, many also believe that homosexuality is
3 Gallup & USA Today, iPOLL Databank, Gallup/USA Today Poll (Sept. 7-8,
2007), available at http://www.ropercenter.uconn.edu/ipoll.html (basing poll on
telephone interviews with national adult sample of 1,028 individuals).
4 Quinnipiac Univ. Polling Inst., Polling the Nations, Quinnipiac University Poll
(Aug. 8, 2007), available at http://poll.orspub.com (reflecting views of Florida voters).
The same poll found similar results in Pennsylvania and Ohio. Id. (finding 53% of
Pennsylvania voters felt homosexual behavior morally wrong versus 34% who found it
acceptable, and 55% of Ohio voters felt homosexual behavior morally wrong versus
30% who found it acceptable).
5 According to a 2007 survey by the Pew Forum on Religion and Public Life, 55%
of Americans oppose same-sex marriage while 36% percent support it. Press Release,
474 University of California, Davis [Vol. 42:471
While there is more acceptance of lesbians and gays today compared
to just a few years ago,6 gays and lesbians still experience a significant
amount of prejudice and discrimination.7 Approximately three-
quarters of gays and lesbians have been the target of verbal abuse and
approximately one-third have been the target of physical violence
based on their sexual orientation.8 Violence against gays and lesbians
Pew Research Ctr. for the People & the Press & Pew Forum on Religion & Public
Life, Clinton and Giuliani Seen as Not Highly Religious; Romney’s Religion Raises
Concerns 15 (Sept. 6, 2007), available at http://people-press.org/reports/pdf/353.pdf.
In 2004, after Massachusetts became the first state to legalize same-sex marriage, see
Pam Belluck, Same-Sex Marriage: The Overview; Hundreds of Same-Sex Couples Wed in
Massachusetts, N.Y. TIMES, May 18, 2004, at A1, available at http://www.nytimes.com/
&ex=1225339200 (last visited Oct. 16, 2008); Move to Ban Gay Marriage Is Killed in
Massachusetts, WASH. POST, June 15, 2007, at A12, 11 states passed constitutional
referendums banning same-sex marriage. Jonathan Rauch, Saying No to ‘I Do,’ T
WALL ST. J., Dec. 27, 2004, at A8 (“On Nov. 2, 11 out of 11 states passed
constitutional referendums banning same-sex marriage”). In May of 2008, the
California Supreme Court became the second state in the nation besides
Massachusetts to legalize same-sex marriage. See In re Marriage Cases, 183 P.3d 384,
453 (Cal. 2008); Maura Dolan, California Supreme Court Overturns Gay Marriage Ban,
L.A. TIMES, May 16, 2008, at 1, available at http://www.latimes.com/news/local/la-me-
gaymarriage16-2008may16.0,6182317.story. Almost immediately, opponents of
same-sex marriage began collecting signatures to place an initiative amending the
California Constitution to outlaw same-sex marriage on the November ballot. See
Justin Ewers, California Court Legalizes Same-Sex Marriage, U.S. NEWS & WORLD REP.,
May 15, 2008, http://www.usnews.com/articles/news/national/2008/05/15/california-
court-legalizes-same-sex-marriage.html; Rauch, supra note 5, at A8. On November 4,
2008, a majority of California voters passed Proposition 8, amending the California
Constitution to ban same-sex marriage in California. Randal C. Archibold & Abby
Goodnough, California Voters Ban Gay Marriage, N.Y. TIMES, Nov. 6, 2008, available at
ss (last visited Nov. 19, 2008). On October 10, 2008, the Connecticut Supreme Court
reversed a legislative ban on same-sex marriage. William Branigan, Conn. Ban on Gay
Marriage Reversed, WASH. POST, Oct. 11, 2008, at A2. As of the writing of this Article,
Massachusetts and Connecticut are the only two states in the nation that allow same-
6 See Jeni Loftus, America’s Liberalization of Attitudes Toward Homosexuality, 1973
to 1998, 66 AM. SOC. REV. 762, 765 (2001).
7 See HENRY J. KAISER FAMILY FOUND., PUBL’N. NO. 3194, INSIDE-OUT: A REPORT ON
THE EXPERIENCES OF LESBIANS, GAYS AND BISEXUALS IN AMERICA AND THE PUBLIC’S VIEWS
ON ISSUES AND POLICIES RELATED TO SEXUAL ORIENTATION 19 (2001), available at
8 Id.; see also Dominic J. Parrott & Amos Zeichner, Effects of Sexual Prejudice and
Anger on Physical Aggression Toward Gay and Heterosexual Men, 6 PSYCHOL. OF MEN &
MASCULINITY 3, 3 (2005) (“Alarmingly, over one third of gay men and lesbians have
been victims of interpersonal violence, and up to 94% report some type of
victimization related to their sexual orientation.”). In 2006, 1,415 of the 9,080 hate
2008] The Gay Panic Defense 475
is a problem even in cities with sizable gay and lesbian populations.
In a survey of young adults in the San Francisco Bay Area, “almost 1 in
5 men admitted to physically assaulting or threatening people whom
they believed were homosexual.”9
When a heterosexual man kills a gay man and faces a murder
charge, a common defense strategy is to use the concept of “gay panic”
to explain the killing.10 There is no officially recognized “gay panic”
defense, but many use the term to refer to defense strategies that rely
on the notion that a criminal defendant should be excused or justified
if his violent actions were in response to a (homo)sexual advance. 11
Such strategies include using gay panic to bolster claims of insanity,
diminished capacity, provocation, and self-defense. In this paper, I
use the term “gay panic defense” as shorthand for these strategies.
Initially, the term “homosexual panic” was used to promote “the
idea that a latent homosexual — and manifest ‘homophobe’ — can be
crimes reported to the FBI were based on the victim’s sexual orientation. FED. BUREAU
OF INVESTIGATION, U.S. DEP’T OF JUSTICE, 2006 HATE CRIME STATISTICS 1 (2007),
available at http://www.fbi.gov/ucr/hc2006/table1.html (last visited June 17, 2008). In
2007, the number of reported bias incidents nationwide fell 1.3 percent. Hate Crimes:
Good news on bias incidents based on race and religion. Bad news on those based on
sexual orientation, WASH. POST, Nov. 5, 2008, at A22. This decrease was driven by a
4.2 percent reduction in the number of reported bias crimes based on religion and a
3.2 reduction in those based on race. Id. These decreases were accompanied by a 5.5
percent increase in reported hate crimes based on the victim’s perceived sexual
9 Karen Franklin & Gregory M. Herek, Homosexuals, Violence Toward, in 2
ENCYCLOPEDIA OF VIOLENCE, PEACE, CONFLICT 139, 144 (Lester Kurtz & Jennifer
Turpin eds., 1999).
10 See Duncan Osborne, The Homosexual Panic Defense: Are Juries Really Buying
It?, LGNY NEWS, Nov. 4, 1999, at 4; see also Gary David Comstock, Dismantling the
Homosexual Panic Defense, 2 LAW & SEXUALITY 81, 81-82 (1992) [hereinafter
Comstock, Dismantling the Homosexual Panic Defense]; Developments in the Law —
Sexual Orientation and the Law, 102 HARV. L. REV. 1519, 1542-46 (1989); Joshua
Dressler, When “Heterosexual” Men Kill “Homosexual” Men: Reflections On Provocation
Law, Sexual Advances, and the “Reasonable Man” Standard, 85 J. CRIM. L. &
CRIMINOLOGY 726, 726-32 (1995) [hereinafter Dressler, When “Heterosexual” Men Kill
“Homosexual” Men]; Robert Mison, Homophobia in Manslaughter: The Homosexual
Advance As Insufficient Provocation, 80 CAL. L. REV. 133, 133-34 (1992); Martha C.
Nussbaum, “Secret Sewers of Vice”: Disgust, Bodies, and the Law, in THE PASSIONS OF
LAW 30, 35-38 (Susan Bandes ed., 1999); Christina Pei-Lin Chen, Note, Provocation’s
Privileged Desire: The Provocation Doctrine, “Homosexual Panic,” and the Non-Violent
Unwanted Sexual Advance Defense, 10 CORNELL J. L. & PUB. POL’Y 195, 201-03, 210-13
(2000); Kara S. Suffredini, Note, Pride and Prejudice: The Homosexual Panic Defense,
21 B.C. THIRD WORLD L.J. 279, 279, 302 (2001).
11 Gay panic arguments have been called the Homosexual Advance Defense, the
Homosexual Panic Defense, and the Homosexual Rage Defense.
476 University of California, Davis [Vol. 42:471
so upset by a homosexual’s advances to him that he becomes
temporarily insane, in which state he may kill the homosexual.”12
More recently, the term “gay panic” has been deployed to refer to the
alleged loss of self-control provoked in a heterosexual man by a gay
man’s unwanted sexual advance.
In this Article, I examine the use of gay panic defense strategies in
the criminal courtroom. I argue that such strategies are problematic
because they reinforce and promote negative stereotypes about gay
men as sexual deviants and sexual predators.13 Gay panic defense
strategies are also troubling because they seek to capitalize on
unconscious bias in favor of heterosexuality that is prevalent in today’s
Most critics of the gay panic defense have proposed that judges or
legislatures should bar gay panic arguments from the criminal
courtroom.15 I take a contrary position and argue that banning gay
12 Parisie v. Greer, 705 F.2d 882, 893 (7th Cir. 1983).
13 See Gregory M. Herek, The Social Context of Hate Crimes: Notes on Cultural
Heterosexism, in HATE CRIMES: CONFRONTING VIOLENCE AGAINST LESBIANS AND GAY MEN
96 (1992) (noting that gay sexuality is stereotyped as “pathological, predatory, and
compulsively promiscuous”); Marc A. Fajer, Can Two Real Men Eat Quiche Together?
Storytelling, Gender-Role Stereotypes, and Legal Protection for Lesbians and Gay Men, 46 U.
MIAMI L. REV. 511, 541-44 (1992) (discussing portrayals of gay people as child molesters
and predatory, promiscuous sex addicts); Francisco Valdes, Queers, Sissies, Dykes, and
Tomboys: Deconstructing the Conflation of “Sex,” “Gender,” and “Sexual Orientation” in
Euro-American Law and Society, 83 CAL. L. REV. 1, 66 n.170 (1995) (discussing images of
gay men as sexual predators who exploit children, lust after non-gay men, and are
indiscriminately promiscuous with each other); Suffredini, Pride and Prejudice, supra
note 10, at 312 (noting that “men who engage in homosexual behavior are stereotyped
as sexual predators”); see also Darren Lenard Hutchinson, “Gay Rights” for “Gay
Whites”?: Race, Sexual Identity, and Equal Protection Discourse, 85 CORNELL L. REV. 1358,
1382 (2000) (discussing “gay as white and privileged” stereotype); Darren Lenard
Hutchinson, Out yet Unseen: A Racial Critique of Gay and Lesbian Theory and Political
Discourse, 29 CONN. L. REV. 561, 608-09 (1997) (discussing “gay as promiscuous”
stereotype and “gay as white and wealthy” stereotype).
14 See Kathy Miriam, Toward a Phenomenology of Sex-Right: Reviving Radical
Feminist Theory of Compulsory Heterosexuality, 22 HYPATIA 210, 211 (2007) (noting
that “most people cleave to the idea that heterosexuality is natural”); Mison, supra
note 10, at 147 (“American society is heterocentric in that it is dominated by and
centers around a heterosexual viewpoint.”); see also DEREK MCGHEE, HOMOSEXUALITY,
LAW AND RESISTANCE 3 (2001) (“[H]eteronormativity is . . . the term used to specify
the tendency in the contemporary Western sex-gender system to view heterosexual
relations as the norm, and all other forms of sexual behaviour as deviations from this
norm.”) (citation omitted); Tiina Rosenberg, Out Of the National Closet: Show Me
Love, in S
EX, BREATH, AND FORCE: SEXUAL DIFFERENCE IN A POST-FEMINIST ERA 111
(Ellen Mortensen ed., 2006) (“Heteronormativity is the supposition that everyone is
heterosexual, and that the natural way of life is heterosexual.”).
15 See Mison, supra note 10, at 176-77 (arguing that judges should rule as matter
2008] The Gay Panic Defense 477
panic arguments from the criminal courtroom is a bad idea. When gay
panic arguments are forced to take a covert turn — when they are not
explicit or out in the open — they may actually be more effective than
they would be if out in the open. Social science research on implicit
bias suggests that making race salient can diminish the otherwise
automatic effect of racial stereotypes on perception and beliefs.16
Conversely, pretending that race is irrelevant allows unconscious
racism to operate without any constraints.17 It appears the same is
true of other types of bias, including sexual orientation bias.18 Rather
than precluding defendants from making gay panic arguments, I argue
that the criminal courtroom is the place where such arguments can,
and should, be aired and battled.
This Article proceeds in four parts. In Part I, I review the historical
origins of the concept of gay panic. Gay panic — the idea that a non-
violent homosexual advance by a gay man can cause a heterosexual man
to panic and respond with fatal violence — has roots in theories about
latent homosexuality as a mental disorder. The term “homosexual
panic” was coined in 1920 by a psychiatrist who saw a pattern in many
of his patients who self-identified as heterosexual but were attracted to
individuals of the same sex.19 These patients experienced a heightened
sense of anxiety in same-sex environments between their feelings of
attraction to others of the same sex and what they felt were the socially
acceptable feelings they were supposed to have.20
In the 1960s, criminal defense attorneys representing male
defendants charged with murdering male victims began using the idea
of gay panic to explain why decision makers should find their clients
not guilty.21 They argued that their clients panicked and killed only
of law that non-violent homosexual advances do not constitute legally adequate
provocation); Victoria L. Steinberg, Book Note, A Heat of Passion Offense: Emotions
and Bias in “Trans Panic” Mitigation Claims, 25 B.C. THIRD WORD L.J. 499, 523-24
(2005) (reviewing MARTHA C. NUSSBAUM, HIDING FROM HUMANITY (2004)) (arguing
that judges should not allow gay or trans panic arguments); Suffredini, supra note 10,
at 309-13 (arguing that use of Homosexual Panic Defense should either be limited by
application of new evidentiary rules or eliminated altogether). But cf. Dressler, When
“Heterosexual” Men Kill “Homosexual” Men, supra note 10, at 726-29 (arguing against
16 See infra text accompanying notes 378-419.
17 See infra text accompanying notes 378-419.
18 See infra text accompanying notes 425-37.
19 EDWARD J. KEMPF, PSYCHOPATHOLOGY 477 (1921).
20 Id. at 479.
21 Joshua Hammer, The ‘Gay Panic’ Defense, NEWSWEEK, Nov. 8, 1999, at 40,
available at http://www.newsweek.com/id/90113/page/2 (last visited Oct. 16, 2008)
(noting that gay panic defense “often resulted in acquittals or reduced charges in the
478 University of California, Davis [Vol. 42:471
after the victim made a homosexual advance.22 I explain why
importing the concept of Homosexual Panic Disorder into the criminal
arena to excuse or justify the killing of a gay man is problematic.
In Part II, I first examine the doctrinal underpinnings of the gay
panic defense. Initially, heterosexual male defendants charged with
murdering gay men linked claims of gay panic to criminal law
defenses based on mental deficiency, such as temporary insanity or
diminished capacity. More recently, such defendants have used gay
panic to bolster claims of provocation and self-defense. I also examine
the “trans panic” defense,23 a fairly recent modification of the gay
panic defense under which a male murder defendant charged with
murdering a male-to-female transgender individual claims that he
panicked upon learning that his sexual partner was biologically male,
not female. Just as the defendant claiming gay panic tries to blame the
gay male victim for his own death (“if he hadn’t made a pass at me, I
wouldn’t have killed him”), the defendant claiming trans panic tries to
blame the transgender victim by claiming the victim’s deceit provoked
him (“if he hadn’t lied about being a woman, I wouldn’t have killed
him”).24 Gay panic arguments linked to claims of mental defect have
largely been unsuccessful,25 whereas gay panic arguments linked to
claims of provocation have been relatively successful.26
Next, I theorize about why gay panic provocation arguments have
enjoyed relative success in the criminal courtroom. First, lenient
verdicts in gay panic provocation cases may reflect the jury’s view that it
is reasonable for a heterosexual man to react violently to a non-violent
homosexual advance. Given that reasonableness in the context of
provocation doctrine is usually understood to mean typicality, if the
jury believes that the average man would have been provoked by a non-
violent homosexual advance, then the jury might conclude that the
defendant was reasonably provoked. I question whether the current
understanding of reasonableness as that which is typical makes sense.
Related to the above argument, lenient verdicts in gay panic
provocation cases may be a reflection of dominant norms of
murders of homosexuals during the 1960s and 1970s”).
22 Suffredini, supra note 10, at 292 (noting that first reported judicial mention of
homosexual panic disorder came in 1967 case of People v. Rodriguez, 64 Cal. Rptr.
253, 255 (Cal. Ct. App. 1967)).
23 See Steinberg, supra note 15, at 501 (arguing that judges should decline to
instruct juries on manslaughter when trans panic is claimed because trans panic does
not fulfill requirements of heat of passion).
24 See infra text accompanying notes 211-34.
25 See infra text accompanying notes 118-32.
26 See infra text accompanying notes 140-210.
2008] The Gay Panic Defense 479
masculinity that legitimize the use of physical violence in response to
non-violent homosexual advances. Men in this society are supposed
to be attracted to women, not other men. Men in this society are
supposed to be the sexual aggressors, not the ones aggressed upon.
When a heterosexual man is the object of a homosexual advance, the
tables are turned. The heterosexual man’s masculinity is called into
question. He is not the sexual aggressor in this situation; instead, he is
the target. In rejecting the homosexual advance in a physically violent
manner, the heterosexual man attempts to reclaim his masculinity in a
socially acceptable way.
Additionally, lenient verdicts in gay panic cases may reflect the
influence of negative stereotypes about gay men as sexual deviants and
sexual predators. Despite positive advancements in the recognition of
civil rights for gays and lesbians, negative stereotypes about
homosexuals still persist. In gay panic cases, the defendant seeks to
use such stereotypes to his advantage.
In Part III, I strike a different path from that of other critics of the
gay panic defense. Other critics have proposed essentially the same
remedy: barring defendants from arguing gay panic. In contrast, I
argue that judges should as a general rule allow such arguments as
long as some evidence supports the traditional criminal law defense
that the defendant is asserting through the gay panic lens. This is the
same standard many jurisdictions currently use to decide whether a
trial court must allow a proffered defense.27
To bolster this potentially unpopular position, I start with a micro-
argument: attempts to ban gay panic from the criminal courtroom will
not work because gay panic arguments can and will be made sub rosa.
I use the Matthew Shepard case to show how defendants can still
promote gay panic arguments even when a judge formally bans a gay
panic defense. In the Shepard case, the judge ruled against the defense
presenting a “homosexual rage” defense.28 Nonetheless, the defense
promoted a gay panic argument by calling two witnesses to the stand
who testified that Shepard made sexual advances upon them, which
made them uncomfortable.29 The defense also included reference to
Shepard’s alleged homosexual advance upon defendant Aaron
McKinney in closing arguments.30
I then turn to several macro-arguments to support my theory that
banning gay panic defense strategies from the criminal courtroom is a
27 See infra text accompanying notes 470-80.
28 See infra text accompanying notes 285-88.
29 See infra text accompanying notes 289-305.
30 See infra text accompanying note 307.
480 University of California, Davis [Vol. 42:471
bad idea. Three broader frameworks support my position: (1) First
Amendment theory; (2) recent social science research on implicit bias;
and (3) institutional competency arguments.
First Amendment scholars often argue that banning offensive speech
is not good policy because this merely allows bad ideas to fester below
the surface.31 Open discussion of pernicious ideas is a better way to
deal with such ideas than banning such discussion outright. Along the
same lines, banning gay panic arguments from the criminal courtroom
is not a good idea because this simply allows bias against
homosexuality to fester in the subconscious realm. Open discussion
about whether it is reasonable for a heterosexual man to respond to a
non-violent homosexual advance with fatal physical violence is a
better way to ensure that such bias is mediated by cognitive processes.
Recent social science research indicates that despite a marked decline
over the last several decades in self-reported expressions of racial bias,
implicit bias is still very prevalent today.32 Even individuals who self-
identify as egalitarian tend to respond more negatively toward Blacks
than Whites when racial stereotypes are activated and there is little or
no time to consciously recognize that such stereotypes have been
activated.33 Several studies, however, have found that when race is
made salient, most individuals are able to consciously mediate their
responses and, instead of invoking automatic stereotype-congruent
responses, respond in egalitarian ways.34
I suggest that if making race salient — bringing race to the surface
and making people conscious of the racial aspects of the situation —
helps individuals to act in less biased ways, the same may also be true
when sexual orientation is made salient.35 One recent study, which
measured the effect of making non-prejudiced norms about sexual
orientation salient, provides support for this position.36 This study
found that hearing another person publicly express positive opinions
about gay-related issues influenced subjects to express positive
31 See infra text accompanying note 337.
32 See infra text accompanying notes 351-78.
33 See infra text accompanying notes 351-78.
34 See infra text accompanying notes 378-419.
35 Here, I am not making the claim that gays and lesbians are the “same as” Blacks
and other racial minorities. See Catherine Smith, Queer as Black Folk?, 2007 WIS. L.
REV. 379, 382 (2007) (critiquing mainstream lesbian, gay, bisexual, and transgender
or LGBT political advocacy that invokes “same as” mantra by comparing LGBT rights
to Black civil rights). Rather, I am merely suggesting that insights from social
cognition research on race and implicit bias may suggest helpful ways to deal with
sexual orientation bias against gays.
36 See infra text accompanying notes 426-37.
2008] The Gay Panic Defense 481
opinions about gay-related issues themselves, even when completing a
questionnaire form in private.
Finally, I consider which institutional actor — the legislature, the
judge, or the jury — is best suited to determine whether to grant
leniency to the criminal defendant who claims gay panic. I argue that
the legislature is the least competent to make this determination
because it cannot imagine all possible factual scenarios in advance.
The legislature can only enact one-size-fits-all rules, which are
particularly ill suited for criminal matters where factual context is
critical to a fair adjudication of the defendant’s guilt or innocence.
As between judge and jury, I argue that a jury of twelve individuals
is better suited to weigh the issues when a heterosexual man charged
with murdering a gay man claims gay panic. At least with a twelve-
person jury, chosen after each side has had a chance to strike jurors on
either extreme, there is a good chance that some jurors will have a
positive attitude about homosexuality and express that attitude,
making non-prejudiced norms about sexual orientation salient.
It is also better to let twelve individuals deliberate the merits of such
claims than to leave this power in the hands of one lone judge. This is
because questions such as whether it is reasonable for a heterosexual
man to be provoked into a heat of passion by a gay man’s non-violent
sexual advance, or whether it is likely that a non-violent sexual
advance caused the defendant to go temporarily insane, are the kinds
of matters about which reasonable minds may disagree. In the end,
our society will be better off if juries representing the conscience of
the community decide these volatile issues. If we want to rid society
of the cultural norms that make gay panic arguments persuasive, we
need to openly battle the assumptions that underlie such claims. The
best way to engage in this battle is to allow defendants to raise such
arguments, make sure prosecutors expose the flaws in such
arguments, and encourage jurors to deliberate consciously on these
arguments and their underlying assumptions.
In Part IV, I offer some tentative suggestions for reform. To
encourage jurors to leave stereotypes and prejudice outside the jury
room, I suggest that prosecutors adopt a two-pronged strategy. On the
front end, during jury selection, the prosecutor should request specific
questions aimed at both reminding egalitarian jurors of their
commitment to fairness and equality and ferreting out closet
homophobes. During opening statements, the prosecutor should
make sexual orientation salient by warning jurors that the defense may
try to appeal to stereotypes about gay men as sexual deviants and
sexual predators. The prosecutor should ask jurors to guard against
482 University of California, Davis [Vol. 42:471
any unconscious bias they might have against the victim on the basis
of sexual orientation.
On the back end, after the jury has heard all the evidence and before
it retires to deliberate, prosecutors should suggest during closing
arguments that jurors engage in sexual orientation and gender
switching by imagining the same facts but with the victim a female
making a sexual advance upon a gay man who responds by killing her.
The prosecutor should also ask the trial court to give a role-reversal
jury instruction. This jury instruction would warn jurors against
allowing sexual orientation bias to influence their decision-making
and encourage jurors to imagine the facts of the case with the
defendant as a gay man (rather than a heterosexual man) who kills a
heterosexual woman (rather than a gay man) after she makes a non-
violent sexual advance upon him. The judge could also instruct jurors
to imagine the same facts but with the defendant as a heterosexual
woman who kills a heterosexual man after he makes a non-violent
sexual advance upon her. The judge would tell jurors that if they
come to a different conclusion about the culpability of the defendant
in either of these role-reversal exercises, they should go back to the
case to make sure they have not allowed sexual orientation bias to
influence their decision-making.
I. HISTORICAL ORIGINS OF THE CONCEPT OF GAY PANIC
The use of gay panic in murder cases has its roots in theories about
latent homosexuality as a mental disorder. The term “homosexual
panic” was coined by Dr. Edward Kempf, a clinical psychiatrist, in
1920.37 After treating many patients who exhibited similar
characteristics, Kempf came to the conclusion that certain troubled
individuals who thought of themselves as heterosexuals were actually
latent homosexuals.38 These individuals suffered from an internal
conflict between their feelings of attraction to individuals of the same
sex and societal views of such feelings as perverse.39 They also
experienced a heightened sense of anxiety in same-sex environments,
caused by this tension between their true feelings of attraction to
members of the same sex and what they perceived as the socially
37 KEMPF, supra note 19, at 477; see also Comstock, Dismantling the Homosexual
Panic Defense, supra note 10, at 82 (citing KEMPF, supra note 19, at 477).
38 KEMPF, supra note 19, at 477-515.
2008] The Gay Panic Defense 483
acceptable feelings they were supposed to have — attraction to
members of the opposite sex.40
According to Kempf, the male patient afflicted with homosexual panic
would be attracted to same-sex associations and horrified by the
amorous female.41 After heterosexual failure, the patient would become
anxious, depressed, and sometimes suicidal.42 Interestingly, separation
from an individual of the same sex to whom the patient was attracted,
rather than a homosexual advance, would precipitate a panic state.43
The Diagnostic and Statistical Manual of Mental Disorders, the
official list of psychiatric disorders published by the American
Psychiatric Association, listed “Homosexual Panic Disorder” in its
1952 edition, but the term has not appeared in that Manual since
then.44 Even in 1952, many of the standard psychiatric and
psychological dictionaries did not recognize Homosexual Panic
Disorder as a psychiatric disorder.45
While Kempf’s original theory has been stretched almost beyond
recognition in its use as a defense in the criminal courtroom today,
modern support does exist for the idea that men who self-identify as
heterosexual and express hostility toward gays may actually be latent
homosexuals. In 1996, Henry Adams conducted a study to find out
whether heterosexual men who exhibited strong anti-gay sentiments
would be aroused by homosexual erotica.46 Adams started by measuring
sixty-four Caucasian male participants’ feelings toward gays.47 All
participants self-identified as heterosexual.48 After evaluating their
responses, Adams divided the participants into two groups which he
labeled “homophobic” (those who seemed hostile toward gays) and “not
homophobic” (those who were not hostile toward gays). He then placed
a sensor on the penises of all the participants, and measured penile
response to erotic videotapes involving heterosexuals, lesbians, and gay
men engaging in sexual activity. Only the men in Adams’s homophobic
41 Id. at 511.
43 Comstock, Dismantling the Homosexual Panic Defense, supra note 10, at 87-88
(citing LELAND E. HINSIE & ROBERT J. CAMPBELL, PSYCHIATRIC DICTIONARY 348-49
44 Id. at 83 (citation omitted).
46 Henry E. Adams et al., Is Homophobia Associated With Homosexual Arousal?, 105
J. ABNORMAL PSYCHOL. 440, 440 (1996); see also Michael Segell, Homophobia Doesn’t
Lie, ESQUIRE, Feb. 1, 1997, at 35.
47 Adams, supra note 46, at 441.
484 University of California, Davis [Vol. 42:471
category showed an increase in penile erection in response to male
homosexual erotic stimuli.49
Even if some self-identified straight men who express strongly
negative feelings about homosexuality are actually latent homosexuals
repressing their own homoerotic desires, the idea that gay panic
should excuse the killing of a gay man is problematic for several
reasons. First, treating gay panic as a mental disorder suggests that
homophobia50 linked to latent homosexuality is a mental illness.51
49 Id. at 442-43. In contrast, heterosexual women do not appear to display the
same kind of physiological bias against gay men as heterosexual men. Amanda L.
Mahaffey et al., Sex Differences in Affective Responses to Homoerotic Stimuli Evidence for
an Unconscious Bias Among Heterosexual Men but Not Heterosexual Women, 34
ARCHIVES OF SEXUAL BEHAV. 537, 543-44 (2005). In another study, Jeffrey Bernat
measured physical aggression toward gay and straight individuals after self-identified
heterosexual college males viewed a homoerotic videotape. Jeffrey A. Bernat,
Homophobia and Physical Aggression Toward Homosexual and Heterosexual Individuals,
110 J. ABNORMAL PSYCHOL. 179, 179 (2001). Bernat found that after watching the
video, the homophobic males were significantly more aggressive toward gay male
opponents than the non-homophobic men. Id. at 185. It is not clear whether these
men were actually unable to control their aggressive behavior or whether they simply
chose not to do so.
50 Critics of the term “homophobia” note that attaching the prefix “homo” to the
word “phobia” suggests that individuals with negative attitudes about homosexuality
are fearful of homosexuals when anti-homosexual sentiments are often driven more by
prejudice than fear. See generally Colleen R. Logan, Homophobia? No, Homoprejudice,
31 J. HOMOSEXUALITY 31 (1996) (investigating nature of anti-homosexual responses in
male and female undergraduate university students). Colleen Logan warns that “the
continued use of homophobia as a descriptor for anti-homosexual responses may be
seen by society as implicit permission to continue the oppression of homosexuals,
excused by its being the result of inescapable fear.” Id. at 32. Similarly, Gregory
Herek remarks, “Characterizing hostility toward homosexual persons in terms of a
phobia implies that those attitudes are based upon an irrational fear, similar to the fear
some people experience when confronted with snakes, spiders, or open spaces.”
Gregory M. Herek, Beyond “Homophobia”: A Social Psychological Perspective on
Attitudes Toward Lesbians and Gay Men, 10 J. HOMOSEXUALITY 1, 2 (1984). Stephanie
Shields and Robert Harriman note:
The great difference between the unreasonable fear of spiders (or mutilation,
snakes, etc.) and fear of homosexuality lies in the assignment of
responsibility for such acquired pathologies. Whereas spider phobics
typically accept responsibility for their fear and even seek treatment,
homophobics do not. To the homophobic it is homosexual men who are
Stephanie A. Shields & Robert E. Harriman, Fear of Male Homosexuality: Cardiac
Responses of Low and High Homonegative Males, 10 J. HOMOSEXUALITY 53, 66 (1984);
see also Darren Lenard Hutchinson, Dissecting Axes of Subordination: The Need for a
Structural Analysis, 11 AM. U. J. GENDER SOC. POL’Y & L. 13, 15-16 (2002) [hereinafter
Hutchinson, Dissecting Axes of Subordination] (differentiating “homophobia” which
2008] The Gay Panic Defense 485
Studies, however, indicate that negative attitudes about homosexuality
tend to come from two sources: sexual conservatism and prejudice.52
Although some mental health practitioners might feel otherwise,53
sexually conservative individuals and prejudiced individuals are not
necessarily mentally ill.
The idea that homosexuality, latent or otherwise, is a mental illness
has long been discredited. In December 1973, after a review of the
scientific literature and consultation with experts in the field, the
Board of Trustees for the American Psychiatric Association deleted
homosexuality from the second edition of the Diagnostic and
Statistical Manual of Mental Disorders.54 The Board recognized that
“[a] significant proportion of homosexuals are apparently satisfied
with their sexual orientation, show no significant signs of manifest
psychopathology . . . and are able to function quite effectively.”55 The
American Psychological Association followed suit in January 1975,
adopting the following resolution: “Homosexuality per se implies no
impairment in judgement [sic], stability, reliability, or general social
and vocational capabilities; Further, the American Psychological
Association urges all mental health professionals to take the lead in
removing the stigma of mental illness that has long been associated
with homosexual orientations.”56
Even though more than thirty years have passed since both the
American Psychiatric Association and the American Psychological
Association rejected the characterization of homosexuality as a mental
illness, the idea that it might be normal for someone to be sexually
attracted to another person of the same sex is not yet accepted
universally. For example, the Boy Scouts of America, which boasts
nearly 2.9 million youth members and more than 1.1 million adult
involves “pronounced emotional animus” and “heterosexism” which involves
“institutionalized domination of gay, lesbian, bisexual, and transgender individuals”).
51 See SEXUAL ORIENTATION AND THE LAW 34 (Harvard Law Review eds., 1990).
52 See Thomas J. Ficarrotto, Racism, Sexism, and Erotophobia: Attitudes of
Heterosexuals Towards Homosexuals, 19 J. HOMOSEXUALITY 111, 115 (1990).
53 In 2005, some mental health practitioners began arguing that extreme forms of
racism, homophobia, and other prejudice ought to be recognized by the American
Psychiatric Association as mental disorders. Shankar Vedantam, Psychiatry Ponders
Whether Extreme Bias Can Be an Illness, WASH. POST, Dec. 10, 2005, at Al.
54 Am. Psychiatric Ass’n, Homosexuality and Sexual Orientation Disturbance: Proposed
Change in DSM-II, 6th Printing, page 44, Position Statement (Retired), APA Document
Reference No. 730008, at 2 (1973), available at http://www.psychiatryonline.com/
DSMPDF/DSM-II_Homosexuality_Revision.pdf (last visited Oct. 21, 2008).
56 APA Online, APA Policy Statement: Discrimination Against Homosexuals,
http://www.apa.org/pi/lgbc/policy/discrimination.html (last visited Oct. 28, 2008).
486 University of California, Davis [Vol. 42:471
members,57 openly prohibits gay males from membership in the
organization because it believes “homosexual conduct is inconsistent
with the traditional values espoused in the Scout Oath and Law.”58
According to the Boy Scouts of America: “homosexual conduct is
inconsistent with the requirement in the Scout oath that a Scout be
morally straight and in the Scout Law that a Scout be clean in word
Apparently, the Department of Defense also considers
homosexuality a mental abnormality. In June 2006, a think tank at
the University of California at Santa Barbara discovered a 1996
Department of Defense Instruction that classified homosexuality as a
mental disorder, along with mental retardation, impulse control
disorders, and personality disorders.60 Both the American Psychiatric
Association and the American Psychological Association wrote to the
Department of Defense, pointing out that homosexuality is no longer
regarded as a mental disorder and requesting that the Instruction be
corrected.61 The Department of Defense subsequently released a
57 Boy Scouts of Am., BSA at a Glance, http://www.scouting.org/Media/FactSheets/
02-501.aspx (last visited Oct. 15, 2008).
58 Press Release, Boy Scouts of Am., Boy Scouts of America Resolution (Feb. 6,
2002), available at http://www.scouting.org/Media/PressReleases/2002/resolution.aspx
(last visited May 19, 2008).
59 Boy Scouts of Am. v. Dale, 530 U.S. 640, 652 (2000). James Dale
unsuccessfully attempted to challenge the constitutionality of the Boy Scouts of
America’s anti-gay policy. Dale joined the Boy Scouts when he was eight years old and
remained a Boy Scout until he turned 18. Id. at 644. Dale was an exemplary Scout
and achieved the rank of Eagle Scout, one of the Boy Scouts’ highest honors, in 1988.
Id. In 1989, Dale applied for adult membership in the Boy Scouts and a position as an
assistant scoutmaster. The Boy Scouts approved Dale’s application for adult
membership and made him an assistant scoutmaster. About this time, Dale left home
to attend Rutgers University where he came out of the closet. He eventually became
Vice President of the Rutgers University Lesbian/Gay Alliance. When the Boy Scouts
of America found out that Dale was gay, they revoked his adult membership. Dale
sued the Boy Scouts, arguing that they had violated New Jersey law prohibiting
discrimination on the basis of sexual orientation in places of public accommodation.
While the New Jersey Supreme Court agreed with Dale, the United States Supreme
Court did not. In a closely divided 5-4 opinion, the Court in 2000 held that applying
New Jersey’s public accommodation law to require the Boy Scouts to readmit Dale
would violate the Boy Scouts’ First Amendment right of expressive association. Id.
60 Press Release, Ctr. for the Study of Sexual Minorities in the Military, Lawmakers
Dispute Pentagon Document Calling Gays Mentally Ill (June 20, 2006), available at
nt; see also DEP’T OF DEFENSE, INSTRUCTION NO. 1332.38 (Nov. 14, 1996).
61 Beyond Homophobia: A Weblog About Sexual Orientation, Prejudice, Science,
and Policy by Gregory Herek, http://www.beyondhomophobia.com/blog/2006/11/19/
military-psychology/ (Nov. 19, 2006, 13:49 PST).
2008] The Gay Panic Defense 487
revised Instruction, which removed homosexuality from the category
of mental disorders.62 Nonetheless, the Instruction still lists
homosexuality as a “defect” along with dyslexia, motion sickness,
enuresis (bed-wetting), and repeated venereal disease infections.63
Another problem with using Kempf’s Homosexual Panic Disorder
theory to support a mental defect defense in a murder case is that not
one of Kempf’s patients was aggressive toward another because of a
sexual advance.64 Indeed, separation from an individual of the same sex
to whom the patient was attracted would often cause the onset of
“homosexual panic” and lead to increased passivity and an inability to
function.65 Moreover, if physical at all, Kempf’s patients tended to inflict
punishment upon themselves, not others.66 Adrian Howe observes:
[T]here was a considerable discrepancy between cases
reported in the psychiatric literature and the cases involving
immediate reaction or sudden panics described in the legal
defences. Patients diagnosed with acute homosexual panic
demonstrated a helplessness, passivity, and inability to be
aggressive far removed from the picture of the explosively
violent man constructed by lawyers deploying a HPD
[Homosexual Panic Disorder] defence. The legal argument
that this disorder was likely to result in extreme violence
therefore had no psychiatric basis.67
Similarly, Gary Comstock notes:
As a psychological disorder in which neither sexual advance to
the patient by another person nor violent attack by the patient
of another person are causal or symptomatic, acute
homosexual panic would seem to be inappropriate as the basis
of a legal defense for men who claim to have killed another
man to ward off his sexual advance.68
64 See Comstock, Dismantling the Homosexual Panic Defense, supra note 10, at 84.
65 See id. at 87-88 (citing LELAND E. HINSIE & ROBERT J. CAMPBELL, PSYCHIATRIC
DICTIONARY 348-49 (1970)).
66 Id. at 87.
67 Adrian Howe, More Folk Provoke Their Own Demise (Homophobic Violence and
Sexed Excuses – Rejoining the Provocation Law Debate, Courtesy of the Homosexual
Advance Defence), 19 SYDNEY L. REV. 336, 342 (1997).
68 Comstock, Dismantling the Homosexual Panic Defense, supra note 10, at 86.
488 University of California, Davis [Vol. 42:471
A final discrepancy between Kempf’s theory and the use of gay panic
in the criminal courtroom is that the murder defendants who claim
gay panic made them kill have been almost exclusively male,69
whereas Kempf’s patients were both male and female.70 Comstock
questions why we should accept claims of gay panic made by men who
kill in response to gay male sexual advances when women apparently
do not kill in response to lesbian sexual advances:
[I]f the homosexual panic defense is premised on the
disorder’s causing murderous behavior in those it afflicts, why
have female patients not been driven to kill? . . . To be used
convincingly as a cause for killing, the disorder would have to
be documented with evidence that both male and female
patients have killed.71
While it is not inconceivable that a woman might panic and respond
violently to a lesbian sexual advance, homicide cases involving claims
of lesbian panic are rarely seen. In one unusual case, a woman named
Melissa Burch Harton argued that she killed her friend Natasha
Bacchus in self-defense after Bacchus told Harton that she was in love
with Harton and wanted to kiss her.72 The jury rejected Harton’s
claim of self-defense, but showed leniency by finding her guilty of
involuntary manslaughter, rather than murder.73 While it is certainly
possible that Homosexual Panic Disorder, if it exists at all, manifests
differently in men and women,74 the dearth of lesbian panic cases
suggests that gay panic is not the product of a mental disease or defect.
Instead, gay panic seems to stem from a specific construction of
masculinity, one that values heterosexism and violence as traits of the
masculine and implicitly rejects homoerotic desire.
69 See id. at 89.
70 KEMPF, supra note 19, at 506-11.
71 Comstock, Dismantling the Homosexual Panic Defense, supra note 10, at 89-90.
72 Amit R. Paley, Murder Jury Will Hear A Claim of Obsession, WASH. POST, Jan. 31,
2006, at B5.
73 Amit R. Paley, Md. Woman Convicted of Killing Female Friend, WASH. POST, Feb.
11, 2006, at B4.
74 It is undisputed that men are responsible for most violent crime. See UNIFORM
CRIME REPORTS, CRIME IN THE UNITED STATES: ARRESTS BY SEX (2006), available at
http://www.fbi.gov/ucr/cius2006/data/table_42.html (reporting that of 10,472,432
persons arrested in 2006, 7,985,505 were male and only 2,486,927 were female). See
generally Richard B. Freeman, Why Do So Many Young American Men Commit Crimes
and What Might We Do About It?, 10 J. ECON. PERSP. 25, 26 (1996) (noting that in
1993, one man out of every 50 men in workforce was incarcerated).
2008] The Gay Panic Defense 489
II. GAY PANIC IN THE CRIMINAL COURTROOM
Borrowing from Kempf’s Homosexual Panic Disorder theory, male
defendants charged with murdering gay men have sought mitigation
or exoneration by claiming gay panic, either as a manifestation of
mental disease or defect or as support for a claim of provocation or
self-defense. In this part, I first consider whether gay panic, if allowed
as a defense, should be recognized as an excuse or a justification.
Next, I unpack the doctrinal underpinnings of gay panic defense
arguments. Finally, I theorize about why gay panic provocation
claims have enjoyed relative success compared to gay panic arguments
linked to mental incapacity defenses.
A. Excuse or Justification?
A preliminary question is whether gay panic, if allowed as a defense
argument, should be recognized as an excuse or a justification. An
excuse defense is one in which the actor’s conduct is viewed as
wrongful, but the actor himself is not seen as morally blameworthy.75
A justification defense, in contrast, focuses on the actor’s conduct
more than the individual characteristics of the actor.76 A justification
defense says the actor’s conduct was appropriate under the
circumstances.77 Examples of excuse defenses include insanity,
duress, and intoxication. Necessity, self-defense, and defense of others
are usually considered justification defenses.
It is difficult to argue that gay panic should be called either a
justification or an excuse. Justification suggests the defendant did the
right thing or took the course of action that society would have
wanted him to take. A man who kills a gay man just because that man
made a pass at him does not act the way a civilized society should
want its men to act.78 Gay panic should not be recognized as a
75 Dressler, When “Heterosexual” Men Kill “Homosexual” Men, supra note 10, at 763
n.17 (“[A]n excuse is in the nature of a claim that although the actor has harmed
society, she should not be blamed . . . for causing that harm . . . . [A]n excuse negates
the moral blameworthiness of the actor for causing the harm.”).
76 GEORGE FLETCHER, RETHINKING CRIMINAL LAW 759 (1978) (“A justification
speaks to the rightness of the act . . . .”); Joshua Dressler, New Thoughts About the
Concept of Justification in the Criminal Law: A Critique of Fletcher’s Thinking and
Rethinking, 32 UCLA L. REV. 61, 66, 68 n.37 (1984) (discussing distinction between
justifications and excuses).
77 FLETCHER, supra note 76, at 759 (“A justification speaks to the rightness of the act.”).
78 If the victim does more than just make a pass — if, for example, the victim tries
to forcibly rape the defendant, then ordinary self-defense principles would allow the
490 University of California, Davis [Vol. 42:471
An excuse defense suggests that the defendant is not as morally
blameworthy as one who does the same action without the excusing
condition. It is difficult to say that the man who kills a gay man in
response to a non-violent homosexual advance is not as morally
blameworthy as someone who kills for any other reason.
In any event, answering the justification-excuse question is
unnecessary because gay panic is not a separate, freestanding
defense,79 and I do not argue that courts should recognize it as such.
Gay panic is merely an argument used to bolster a traditional criminal
law defense such as insanity, diminished capacity, provocation, or self-
defense. Therefore, whether a gay panic argument will operate as an
excuse or a justification will depend on which traditional defense it is
used to support. While one can debate whether the doctrine of
provocation is appropriately characterized as a partial excuse (as I
have done in previous work),80 the general consensus is that
provocation is a partial excuse defense, self-defense is a justification
defense, and insanity and diminished capacity are excuse defenses.
defendant to protect himself from the imminent threat of grievous bodily injury.
79 There are numerous examples of other defenses, which, like the gay panic
defense, are not officially recognized defenses but are known in the popular culture.
See, e.g., PAUL HARRIS, BLACK RAGE CONFRONTS THE LAW 2 (1997) (“The black rage
defense is a legal strategy used in criminal cases.”); ALISON DUNDES RENTELN, THE
CULTURAL DEFENSE 5 (2004) (“This study analyzes the cultural defense, which, were it
to be established, would require judges to consider the cultural background of litigants
in the disposition of cases before them.”) (emphasis added); Anne M. Coughlin,
Excusing Women, 82 CAL. L. REV. 1, 7-8 (1994) (discussing “battered woman
syndrome defense” even though not a freestanding, officially-recognized, defense); see
also Peter Margulies, Identity on Trial: Subordination, Social Science Evidence, and
Criminal Defense, 51 RUTGERS L. REV. 45, 62-65, 72-73 (1999) (evaluating when
identity impact evidence, such as cultural defense evidence, evidence of black rage,
and battered woman syndrome evidence, should be admissible).
80 See CYNTHIA LEE, MURDER AND THE REASONABLE MAN: PASSION AND FEAR IN THE
CRIMINAL COURTROOM 227-30 (2003) [hereinafter LEE, MURDER AND THE REASONABLE
MAN] (arguing that doctrine of provocation contains elements of both justification
and excuse); see also A.J. Ashworth, The Doctrine of Provocation, 35 CAMBRIDGE L.J.
292, 307 (1976) (arguing that provocation has elements of both justification and
excuse); Joshua Dressler, Provocation: Partial Justification or Partial Excuse?, 51 MOD.
L. REV. 467, 469 (1987) (arguing that provocation is generally viewed as partial
excuse); Joshua Dressler, Why Keep the Provocation Defense? Some Reflections on a
Difficult Subject, 86 MINN. L. REV. 959, 971 (2002) (arguing that provocation should
not be understood in justficatory terms); Reid Griffith Fontaine, Adequate
(Non)Provocation and Heat of Passion as Excuse not Justification, 42 MICH. J. L. REFORM
(forthcoming 2009) (on file with author) (arguing that provocation is excuse, not
justification); Finbarr McAuley, Anticipating the Past: The Defence of Provocation in
Irish Law, 50 MOD. L. REV. 133, 133 (1987) (arguing that provocation ought to be
viewed as partial justification).
2008] The Gay Panic Defense 491
Beginning in 1967, male defendants charged with murdering gay
men began to utilize the concept of homosexual panic to support
mental defect defenses such as insanity and diminished capacity.81
Insanity, a complete defense which results in a not guilty by reason of
insanity (“NGI”) verdict, is defined differently depending on whether
the jurisdiction follows the M’Naghten test or the American Law
Institute’s (“ALI”) test, also known as the Model Penal Code (“MPC”)
test. Under the M’Naghten test, the accused can be found not guilty by
reason of insanity if, at the time of the act, the accused “was laboring
under such a defect of reason, from disease of the mind as not to know
the nature and quality of the act he was doing, or, if he did know it,
that he did not know he was doing what was wrong.”82 The ALI test,
found in Section 4.01 of the MPC, provides a defense when, as a result
of mental disease or defect, the actor “lacks substantial capacity . . . to
appreciate the criminality [wrongfulness] of his conduct.”83
Heterosexual men charged with killing gay men have argued that the
victim’s (homo)sexual advance triggered in them a violent psychotic
reaction, causing them to lose control over their mental abilities.84
There are several problems with defense attempts to claim insanity
linked to gay panic. First, to be found not guilty by reason of insanity,
a defendant must not have understood the nature and quality of his
act or appreciated that what he was doing was wrong. In other words,
either he did not know that he was stabbing, choking, or kicking the
victim, or he did not know that it was wrong to do so. The male
defendant claiming that a homosexual advance made him lose his self-
control often cannot claim convincingly that he did not know that he
was kicking, beating, or punching the victim or that he did not
understand what he was doing was illegal or immoral.
81 See, e.g., People v. Rodriguez, 64 Cal. Rptr. 253, 255 (Cal. Ct. App. 1967)
(describing how psychiatrist testified for defense that defendant did not know nature
and quality of his act at time of attack and was acting as result of acute homosexual
panic brought on by fear that victim was sexually molesting him); People v. Parisie,
287 N.E.2d 310, 313 (Ill. App. Ct. 1972) (noting proffered defense was “insanity
based on ‘homosexual panic’”); State v. Thornton, 532 S.W.2d 37, 44 (Mo. 1975)
(noting that psychiatric evidence offered by defense suggested defendant was in state
of “homosexual panic” at time of stabbing).
82 United States v. Freeman, 357 F.2d 606, 608 (2d Cir. 1966). Seventeen states
and the federal government have adopted a version of the M’Naghten test. Clark v.
Arizona, 548 U.S. 735, 749-50 (2006).
83 MODEL PENAL CODE § 4.01 (2001). Fourteen states have adopted tests for
insanity inspired by the MPC. Clark, 548 U.S. at 751-52.
84 Osborne, supra note 10, at 4.
492 University of California, Davis [Vol. 42:471
Second, to be found not guilty by reason of insanity, the defendant
must have been suffering from a mental disease or defect at the time of
his act. The male defendant claiming that a homosexual advance
made him crazy often cannot prove he was suffering from a mental
disease or defect at the time of his act because the American
Psychiatric Association does not recognize Homosexual Panic
Disorder as a mental disease.85 Additionally, the American Psychiatric
Association no longer considers homosexuality a mental disorder.86
This makes it difficult for a defendant to claim latent homosexuality as
a mental disease or defect.
Most claims of insanity based on homosexual panic have not been
successful.87 In People v. Parisie,88 for example, the defendant, John
Parisie, was charged with murder and argued he should be found not
guilty by reason of insanity based on “homosexual panic.”89 Parisie
testified that he was walking down the road when the victim, whom
he had met some time earlier at an automobile dealership, offered him
a lift. According to Parisie, after he got in the car, the victim drove a
while before turning down a gravel road. He then parked, turned off
the lights, slid the seat back, and made an unspecified sexual advance,
telling Parisie that if he refused, he would have to walk.90 Parisie
claimed he went crazy and vaguely remembered struggling with the
victim and hearing a noise that sounded like gunshots.91
At trial, the defense called a clinical psychologist who testified that
Parisie was a highly latent homosexual with strong feelings of
inferiority. The defense also called a psychiatrist who testified that
“‘homosexual panic’ is severe panic or fear reaction that is provoked
by extreme anxiety or psychological trauma, and this often takes the
form of a state of amnesia, in which the person sets aside or forgets
unconsciously something that his conscious mind cannot tolerate.”92
85 Comstock, Dismantling the Homosexual Panic Defense, supra note 10, at 83.
86 Am. Psychiatric Ass’n, supra note 54, at 1-3.
87 Robert G. Bagnall et al., Comment, Burdens on Gay Litigants and Bias in the
Court System: Homosexual Panic, Child Custody, and Anonymous Parties, 19 HARV.
C.R.-C.L. L. REV. 497, 501 (1984) (asserting that “[c]ases involving the defense of
homosexual panic which have reached the appellate level have never resulted in a
defendant’s acquittal by reason of insanity”).
88 287 N.E.2d 310, 312 (Ill. App. Ct. 1972).
89 Id. at 313.
90 Id. at 313-14.
92 Id. at 314.
2008] The Gay Panic Defense 493
The jury rejected Parisie’s claim of insanity,93 finding him guilty of
murder, and Parisie’s conviction was affirmed on appeal.
A more recent example of a failed attempt to link gay panic to an
insanity defense is reflected in the killing of Billy Jack Gaither. In the
summer of 1998, Charles Butler and his friend, Steven Mullins, beat an
openly gay man named Billy Jack Gaither to death and set his body on
fire atop a pyre of tires. The men claimed they killed Gaither because
he propositioned them.94 At his arraignment on capital murder
charges, Butler pled not guilty by reason of mental disease or defect.95
Before trial, however, Butler withdrew his mental defect defense,96
arguing instead that it was Mullins who actually killed Billy Jack
Gaither. Even though Butler formally withdrew his mental defect
defense, gay panic was prominently featured at his trial. Butler
claimed he hit Gaither only after Gaither told him he was interested in
a sexual threesome with Butler and Mullins. Mullins too asserted that
the reason he killed Gaither was because Gaither had propositioned
him two weeks earlier.
Gaither’s friends, however, said it was highly unlikely that Gaither
would proposition either man. According to one friend: “[Billy Jack]
didn’t walk around acting, looking, or talking gay. If anybody was
asking for sex, it wasn’t him — it was them. We’ve got a lot of
rednecks in here. You don’t make advances with them around.”97
Marian Hammonds, owner of The Tavern, a straight bar which Gaither
frequented, described Gaither as a likeable man who, while never
denying he was gay, “made a point of never doing the gay thing when
he was at our place . . . My husband, Larry didn’t even know he was
93 Id. at 315.
94 See Trial of Man Accused of Gay Hate Crime Slaying Begins with Defendant Blaming
His Cohort, COURT TV ONLINE, Aug. 4, 1999, http://www.courttv.com/trials/
butler/080499_ctv.html; see also Phillip Rawls, Man Convicted of Capital Murder in Slaying
of Homosexual, ASSOCIATED PRESS NEWSWIRES, Aug. 5, 1999; Phillip Rawls, Skinhead
Describes Beating Death of Gay Man, ASSOCIATED PRESS NEWSWIRES, Aug. 4, 1999; Phillip
Rawls, Witness Describes Defendant in Gay Murder as Joking Afterwards, ASSOCIATED PRESS
NEWSWIRES, Aug. 6, 1999; Jay Reeves, Prosecutor to Recommend Life Without Parole in
Killing of Gay Man, ASSOCIATED PRESS NEWSWIRES, June 25, 1999 [hereinafter Jay Reeves,
Prosecutor to Recommend Life Without Parole in Killing of Gay Man].
95 Val Walton, Two Plead Not Guilty in Killing of Gay Man, BIRMINGHAM NEWS, May
21, 1999, at A1 (noting that “Gaither’s sister gasped when Butler’s attorney, William
R. Hill Jr., told Circuit Court Judge John Rochester that his client pleaded not guilty
and not guilty by reason of mental defect”).
96 Jay Reeves, Prosecutor to Recommend Life Without Parole in Killing of Gay Man,
supra note 94.
97 Daniel Pedersen, A Quiet Man’s Tragic Rendezvous with Hate, NEWSWEEK, Mar.
15, 1990, at 65.
494 University of California, Davis [Vol. 42:471
gay until about a year ago, and I had to tell him.”98 Hammonds
further remarked, “He [Gaither] didn’t ever put anybody in [an
Mullins’s claim that he killed Gaither because Gaither propositioned
him is suspect for another reason. Friends of Gaither asserted that
Mullins and Gaither had had a sexual relationship which Mullins did
not want anyone to know about, and that Mullins wanted Gaither dead
to ensure that he never would tell anyone about their homosexual affair.
At Butler’s trial, Mullins adamantly denied having sex with Gaither or
any other man. Butler’s attorneys, however, presented several witnesses
who testified that Mullins had a secret gay sex life. One man, Jimmy
Lynn Dean, testified that he and Mullins had had oral sex about four
months before Billy Jack Gaither was killed.100
In Butler’s case, neither gay panic nor the “it wasn’t me” argument
worked. The jury convicted Butler of capital murder. Gaither’s
family, however, requested that Butler be spared the death penalty.101
Accordingly, the judge sentenced Butler to life in prison without the
possibility of parole.102
C. Diminished Capacity
Another doctrinal hook for defendants charged with murdering a
gay man is the diminished capacity defense. Diminished capacity, a
partial defense to murder, generally requires proof that the defendant
was acting under the influence of a mental disease or defect which
affected his capacity to premeditate and deliberate or form the
requisite intent to kill. There are two variants of the diminished
capacity defense. Under the mens rea variant, “evidence that [the
defendant] suffered from a mental disease or defect at the time of his
conduct is admissible whenever it is relevant to prove that he lacked a
mental state that is an element of the charged offense.”103 Under the
partial responsibility variant, the charge is reduced from murder to
98 Sue Anne Pressley, 2 Accused of Killing, Burning Gay Man, WASH. POST, Mar. 5,
1999, at A1.
99 Cops: Men Plotted Gay Man’s Grisly Slaying, PHILA. DAILY NEWS, Mar. 5, 1999, at 26.
100 Frontline, Assault on Gay America: The Life and Death of Billy Jack Gaither, Steve
Mullins’ Homosexual Behavior?, Aug. 5, 1999, http://www.pbs.org/wgbh/pages/
101 Killer of Gay Man in Alabama Gets Life in Prison Without Parole, N.Y. TIMES, Aug.
17, 1999, at A14.
103 JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW § 26.02[B], at 320 (3d ed.
2001) [hereinafter DRESSLER, UNDERSTANDING CRIMINAL LAW].
2008] The Gay Panic Defense 495
manslaughter because the defendant is seen as “less blameworthy and
therefore less deserving of punishment, than a killer who acts with a
normal state of mind.”104
A diminished capacity defense was successfully used in the Jenny
Jones murder case in which a heterosexual man named Jonathan
Schmitz killed his gay friend Scott Amedure after an appearance on the
Jenny Jones Show in 1995.105 Schmitz had been invited to appear on the
show and knew the show’s theme that day was Secret Admirers. Schmitz
thought an ex-girlfriend was going to be revealed as his secret admirer.
In fact, Schmitz’s male friend Scott Amedure appeared on the show as
his secret admirer.106 Even though he was surprised and apparently
embarrassed to find that his secret admirer was a man, Schmitz hugged
Amedure on the air and even laughed when Amedure recounted a
fantasy that involved Schmitz, whipped cream, strawberries, and
champagne.107 Schmitz even offered to give Amedure and Donna Riley,
Schmitz’s neighbor who had arranged Schmitz and Amedure’s
appearance on the Jenny Jones Show, a ride home.108 Before they left
the Detroit Metropolitan Airport, Amedure snatched a flashing
construction light and stashed it in Schmitz’s car.109
On March 9, 1995, three days after appearing on the show, Schmitz
came home from work and found the flashing construction light and
an unsigned note in front of his apartment that read, “John. If you
want it ‘off’ you’ll have to ask me. P.S. It takes a special tool. Guess
Who.”110 Believing the note to be a crude sexual come-on from
104 Id. § 26.03[A], at 325-28.
105 See People v. Schmitz, 586 N.W.2d 766, 767 (Mich. Ct. App. 1998) (noting
Schmitz was initially charged with first-degree murder, argued diminished capacity, and
was found guilty of second-degree murder); Court TV Online, Court TV Verdicts:
Michigan v. Schmitz (Aug. 25, 1999), http://www.courttv.com/archive/verdicts/
schmitz.html (last visited Oct. 21, 2008) (noting that jury on November 12, 1996 opted
against finding Schmitz guilty of first-degree murder, instead finding him guilty of
second-degree murder and illegal possession of a firearm in the commission of a felony).
106 See Keith Bradsher, Talk-Show Guest is Guilty of Second-Degree Murder, N.Y.
TIMES, Nov. 13, 1999, at A14.
107 See Court TV Online, Court TV Verdicts: Michigan v. Schmitz (Aug. 25, 1999),
http://www.courttv.com/archive/verdicts/schmitz.html (last visited Oct. 21, 2008).
108 See Michelle Green, TV’s Fatal Attraction: A Surprise Meeting on ‘Jenny Jones’
Ends in a Shocking Shotgun Murder, PEOPLE, Mar. 27, 1995, at 40, available at
http://www.people.com/people/archive/article/0,,20105369,00.html (last visited Oct.
109 See id.
110 Aldina Vazao Kennedy & Bryan Robinson, Schmitz Found Guilty of Second-
Degree Murder, C
OURT TV ONLINE, Aug. 26, 1999, http://www.courttv.com/
archive/trials/schmitz/082699_verdict_ctv.html (last visited Oct. 21, 2008); see also
496 University of California, Davis [Vol. 42:471
Amedure, Schmitz drove to his bank, withdrew money from his
savings account, then purchased a twelve-gauge pump action shotgun
and some ammunition.111 He drove to Amedure’s house, and after
Amedure admitted to writing the note, Schmitz shot Amedure twice in
the chest, killing him.112
Schmitz was charged with first-degree murder. At trial, Schmitz’s
attorney argued Schmitz was suffering from diminished capacity when
he shot and killed Scott Amedure, stemming from his embarrassment
on the Jenny Jones Show when Amedure appeared as his secret
admirer.113 At that time, diminished capacity was allowed in Michigan
as a partial defense to first-degree murder.114 Despite the
overwhelming evidence of premeditation and deliberation, the jury
found Schmitz’s claim of diminished capacity stemming from
homosexual panic credible and found him guilty of second-degree
murder rather than first-degree murder.115
Karen Franklin and Gregory Herek have opined that the verdict in
the Jenny Jones case reflected “[t]he sense of cultural permission to
engage in antigay violence.”116 Offering another possible explanation
Jenny Jones with Patsi Bale Cox, Fatal Attraction, TORONTO SUN, Nov. 30, 1997, at 48.
111 L.L. Brasier, Jury Hears Tape of 911 Confession Schmitz Upset During Call,
Dispatcher Says, DET. FREE PRESS, Oct. 16, 1996, at B1; Megan Garvey, The Aftershock
of Shock TV, WASH. POST, Mar. 25, 1995, at D1; Stephen Seplow, Talk TV on Trial: A
Taping, a Killing, One Guest Killed the Man Who Liked Him. The Jury is Still Out.,
PHILA. INQUIRER, Nov. 10, 1996, at A1.
112 Frazier Moore, Critics Blame ‘Jenny Jones’ Show for Murder, BALT. SUN, Mar. 11,
1995, at D1; Frazier Moore, ‘Retailing of Emotional Conflict’ Blamed in TV Talk-Show
Tragedy, SEATTLE TIMES, Mar. 11, 1995, at A3; Frazier Moore, Talk Show Is Blamed
After Guest Shot to Death Critics Charge that Programs Place Subjects in Unexpected,
Upsetting Situations for Lively TV, AKRON BEACON J., Mar. 11, 1995, at A1; Police Say
Talk Show Led to Murder, CHI. TRIB., Mar. 11, 1995, at N8.
113 People v. Schmitz, 586 N.W.2d 766, 768 (Mich. Ct. App. 1998); see also Teresa
Wiltz & David Farhi, Death Follows Ugly Scene Played out on ‘Springer,’ WASH. POST,
July 27, 2000, at C1.
114 Diminished capacity is no longer recognized as a defense to first-degree murder
in Michigan. People v. Carpenter, 627 N.W.2d 276, 283 (Mich. 2001).
115 Jonathan appealed his second-degree murder conviction and was granted a retrial
because the trial court had not allowed the defense to remove a juror they found
problematic. Schmitz, 586 N.W.2d at 769-72. On retrial, the defense was not able to
argue diminished capacity again because that defense was only available against a first-
degree murder charge. People v. Biggs, 509 N.W.2d 803, 805-06 (Mich. Ct. App. 1993).
Instead, Jonathan’s attorney argued that Jonathan was provoked into a heat of passion by
Amedure’s sexual advance in an attempt to reduce his conviction to voluntary
manslaughter. The jury rejected Jonathan’s provocation defense and he was again found
guilty of second-degree murder. Talk Show Guest Convicted of Murder for a 2nd Time:
Jury Rejects Killer’s Crime-of-Passion Defense, CHI. TRIBUNE, Aug. 27, 1999, at 6.
116 Franklin & Herek, supra note 9, at 148.
2008] The Gay Panic Defense 497
for the second-degree murder verdict, Franklin and Herek comment,
“[p]articularly revealing in that case was the popular perception that
the television show’s producers had humiliated the heterosexual man
and thus were responsible for the murder.”117
Over time, the use of mental defect defenses in gay victim homicide
cases has fallen out of favor for a number of reasons, not the least of
which is the difficulty of securing a favorable jury verdict with a mental
defect defense.118 Jurors are often skeptical of defense claims of
insanity.119 Even if the defendant is able to convince jurors that he was
suffering from a mental disease or defect, it is often difficult to prove
that the defendant did not know that what he was doing (killing the
victim) was wrong or that the defendant could not control his actions.120
Additionally, a verdict of not guilty by reason of insanity (temporary
or otherwise) does not mean the defendant goes free. The defendant
who is found insane is usually committed to a mental institution for
an indefinite period of time. This period of confinement can exceed
the length of the prison sentence the defendant would have received if
he had been convicted.121 Many individuals would rather serve a
definite prison sentence than endure the stigma and uncertainty of an
indefinite period of commitment in a mental institution. Moreover,
asserting a mental defect defense is often seen as an unacceptable
admission of mental deficiency in the eyes of the defendant.122
Another possible reason for the gradual shift away from the use of
gay panic to support a mental defect defense may be the unavailability
of those defenses in certain jurisdictions. At least three states do not
118 Lisa A. Callahan, The Volume and Characteristics of Insanity Defense Pleas: An
Eight-State Study, 19 BULL. AM. ACAD. PSYCH. & L. 331, 337 (1991) (“Although there
was considerable variation among the eight states in the acquittal rate (percentage of
successful pleas), overall, just one-quarter of [defendants] who raised the [insanity]
defense were successful.”).
119 JAMES P. LEVINE, JURIES AND POLITICS 89 (1992) (noting that “[o]ne study found
that out of about two million criminal cases dealt with in American criminal courts in
a single year, only 1,625 produced verdicts of not guilty on the basis of insanity”).
120 See Suffredini, supra note 10, at 295.
121 See Jones v. United States, 463 U.S. 354, 368 (1983) (noting that when criminal
defendant establishes that he is not guilty of crime by reason of insanity, government
may commit him to mental institution until he regains his sanity or is no longer
danger to himself or society and that this period of commitment may exceed time he
could have been incarcerated had he been convicted).
122 Unabomber Ted Kaczynski, for example, refused to plead not guilty by reason
of insanity even though his attorneys told him this was the best defense possible.
William Glaberson, Lawyers Drop Mental Defense for Kaczynski, N.Y. TIMES, Dec. 30,
1997, at A1.
498 University of California, Davis [Vol. 42:471
recognize the defense of insanity.123 A number of states have either
abolished the defense of diminished capacity or substantially restricted
its use. For example, California124 and Wyoming125 do not recognize
the defense of diminished capacity. In Michigan, diminished capacity
was allowed as a defense to first-degree murder126 until 2001 when the
Supreme Court of Michigan ruled that “evidence of mental incapacity
short of insanity cannot be used to avoid or reduce criminal
responsibility by negating specific intent.”127 The United States
Supreme Court has encouraged these restrictions on the use of mental
defect or deficiency evidence, ruling that states are free to fashion their
own rules regarding the admissibility of evidence of mental disease or
defect and can bar a defendant’s use of such evidence to negate the
requisite mens rea without violating due process.128
A final reason why there might be fewer gay panic claims linked to
insanity or diminished capacity today compared to thirty years ago
could be because the American Psychiatric Association removed
homosexuality from its list of mental disorders in 1973, “thus
stripping homosexual panic of its medical-scientific legitimacy as a
defense and as an illness premised upon homosexual latency.”129
Christina Pei-Lin Chen explains that “[u]nder both the insanity and
diminished capacity variants of the homosexual panic defense, the
defendant’s acute psychotic reaction of homicidal violence was
explained by the medical-scientific discourse as directly premised
upon the latent homosexual’s mental disorder of repressed sexual
123 See, e.g., IDAHO CODE ANN. § 18-207 (2004) (providing that “mental condition
shall not be a defense to any charge of criminal conduct”); KAN. STAT. ANN. § 22-3220
(1995) (allowing defendant to present evidence of mental disease or defect to prove he
lacked mental state required for commission of offense, but otherwise mental disease
or defect not a defense); MONT. CODE ANN. §§ 46-14-102 to -311 (2005) (permitting
mental disease or defect evidence only to prove defendant lacked necessary mens rea,
or for consideration at sentencing); see also UTAH CODE ANN. § 76-2-305 (2003)
(allowing “guilty but mentally ill” verdict). But see Finger v. State, 27 P.3d 66, 84
(Nev. 2001) (holding that abolition of insanity defense violates due process).
124 CAL. PENAL CODE § 28(b) (2003). But see Miguel A. Mendez, Diminished
Capacity in California: Premature Reports of Its Demise, 3 STAN. L. & POL’Y REV. 216,
222 (1991) (arguing that while diminished capacity is not available as defense, very
similar defense of diminished actuality is still possible).
125 Dean v. State, 668 P.2d 639, 643-45 (Wyo. 1983).
126 People v. Biggs, 509 N.W.2d 803, 805 (Mich. Ct. App. 1993) (noting that
“diminished capacity is not a defense to general intent crimes such as second-degree
127 People v. Carpenter, 627 N.W.2d 276, 283 (Mich. 2001).
128 Clark v. Arizona, 548 U.S. 735, 779 (2006).
129 Chen, supra note 10, at 202.
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perversion.”130 According to Chen, once the psychiatric community
stopped recognizing homosexuality as a mental disease or defect,
insanity and diminished capacity stopped being useful vehicles to
transport the message of gay panic.131
Because of the above-described difficulties, male defendants charged
with murdering gay victims today tend to assert the defense of
provocation rather than insanity or diminished capacity, claiming that
they were provoked into a heat of passion by the victim’s homosexual
advance.132 Some even claim they acted in self-defense to protect
against a violent sexual assault. Both provocation and self-defense
require a showing of reasonableness.133 The defendant who claims
provocation will not succeed unless the jury finds that the defendant
was reasonably provoked into a heat of passion. The defendant who
claims self-defense will not succeed unless the jury finds that a
reasonable man in the defendant’s shoes would have believed it
necessary to use deadly force in self-defense.
Using the concept of gay panic to support a claim of provocation or
self-defense is even further removed than insanity or diminished
capacity from Kempf’s original idea of Homosexual Panic Disorder,
which suggested that some men have secret homosexual desires they
try to repress, causing psychiatric disorder. Claims of provocation and
self-defense suggest the defendant acted the way most men would
have acted. One problem with this move is that the reasonableness
requirement in the doctrines of provocation and self-defense allows
male defendants claiming gay panic to rely on social norms that favor
heterosexuality over homosexuality to bolster their claims of
provocation and self-defense.134
Under the provocation doctrine, a defendant charged with murder can
be convicted of the lesser offense of voluntary manslaughter if the jury
finds that the defendant was actually and reasonably provoked into a heat
of passion. At early common law, only certain acts constituted legally
132 See generally Dressler, When “Heterosexual” Men Kill “Homosexual” Men, supra
note 10; Mison, supra note 10 (discussing provocation defense in homosexual advance
133 LEE, MURDER AND THE REASONABLE MAN, supra note 80, at 3.
134 See id. at 67-95.
500 University of California, Davis [Vol. 42:471
adequate provocation.135 One of the categories of legally adequate
provocation was a serious crime committed against a close relative.136
Perhaps foreshadowing the use of gay panic in future provocation cases,
early English courts limited this category to cases in which a father
discovered someone committing sodomy on his son.137 Today,
provocation is considered legally adequate if the reasonable person in the
defendant’s shoes would have been provoked into a heat of passion.
Some jurisdictions follow the Model Penal Code’s extreme
emotional disturbance test for provocation, under which “a homicide
which would otherwise be murder is [mitigated to manslaughter if]
committed under the influence of an extreme mental or emotional
disturbance for which there is a reasonable explanation or excuse.”138
The Code goes on to explain that “[t]he reasonableness of such
explanation or excuse shall be determined from the viewpoint of a
person in the actor’s situation under the circumstances as he believes
them to be.”139
In several cases, heterosexual men who have killed gay men in
response to an unwanted non-violent homosexual advance have
successfully argued either that a non-violent homosexual advance
reasonably provoked them into a heat of passion or that they acted
under the influence of extreme mental or emotional disturbance for
which there was a reasonable explanation or excuse — a gay man’s
sexual advance. For example, in Schick v. Indiana, seventeen-year-old
Timothy Schick met thirty-eight-year-old Stephen Lamie while trying
to hitchhike.140 Schick climbed into Lamie’s car, and asked if Lamie
knew where they could find some girls.141 When Lamie said he could
not help him with this, Schick then asked Lamie if he knew where he
could get a blow job.142 Lamie told Schick, “No, but I will,”143 and
then drove to a local high school baseball field.144
135 DRESSLER, UNDERSTANDING CRIMINAL LAW, supra note 103, § 31.07.
136 Id. §31.07[a].
137 Dir. of Pub. Prosecutions v. Camplin,  A.C. 705 (H.L.) (appeal taken
from Crim. App.) (U.K.).
138 MODEL PENAL CODE § 210.3(1)(b) (2001).
140 570 N.E.2d 918 (Ind. Ct. App. 1991); see also Fran Jeffries, Teen Convicted in
Dugout Death, THE COURIER-JOURNAL (Louisville, Ky.), Nov. 19, 1988, at 6A.
141 Schick, 570 N.E.2d at 921.
144 Id. at 922.
2008] The Gay Panic Defense 501
According to Schick, as the two men were walking toward the field,
Lamie pulled off his shorts and pulled his underwear down to his
ankles, grabbed Schick around the waist, and tried to touch Schick’s
penis.145 Schick responded by kneeing Lamie in the stomach and
hitting Lamie in the face.146 Lamie fell to the ground, and Schick
continued to kick and beat Lamie until he heard gurgling sounds
coming from Lamie’s chest and throat.147 Schick then removed
Lamie’s watch, some cigarettes from Lamie’s pocket, and twenty-six
dollars from Lamie’s wallet.148 He raced back to Lamie’s car and wiped
the dashboard and seat to get rid of his fingerprints, then ran away.149
At approximately 2:30 a.m., Schick knocked on the door of a
friend’s house.150 He told his friend and his friend’s father that he had
met a man while hitchhiking, asked the man where he could get a
blow job, and the man offered to provide the service requested.151
Schick said they went to a local high school baseball field and he tried
to run away, but the man caught up to him and a struggle ensued.152
The friend’s father placed an anonymous call to the police, reporting
that there was a dead or injured person at the baseball field.153 Police
found Lamie’s body at the field.154
Schick was charged with murder and other offenses.155 At his 1991
trial, Schick claimed Lamie’s unwanted sexual overture provoked him
into a heat of passion and, therefore, the jury should convict him of
manslaughter rather than murder.156 The jury found this argument
persuasive and found Schick guilty of voluntary manslaughter.157
148 Id. at 921.
149 Id. (describing Schick’s statement to police). In a post-trial statement, Schick
provided another version of the events. In this version, Schick stated that initially,
Lamie knocked him unconscious. When Schick awoke, Lamie was trying to force his
penis into Schick’s mouth. Schick had to fight Lamie off to avoid the sexual attack.
Schick eventually broke free and while Lamie was stumbling toward him with his
underwear around his ankles, Schick knocked Lamie down. As Lamie lay on the
ground, Schick beat and kicked him to death. Id. at 927.
150 Id. at 921.
155 Id. at 922.
156 Id. at 926.
157 Id. at 922.
502 University of California, Davis [Vol. 42:471
In analyzing the jury’s verdict, it is important to consider the
relative ages of the defendant and victim. More than 50 % of the
perpetrators of anti-gay and anti-lesbian violence are under the age of
twenty-nine years.158 Given the stereotype of the gay man as a violent
sexual predator who preys on young boys, Lamie’s status as a gay man
more than twice Schick’s age may have influenced the jury to see
Schick’s violent reaction as reasonable. Additionally, Lamie’s explicit
sexual advance (as described by Schick) may have convinced the jury
that Schick’s violent acts were necessary to protect himself from a
sexual assault. If an older man pulled down his underwear, and
grabbed a teenage girl around the waist in an attempt to engage in
sexual relations, we would probably sympathize with the girl if she
used non-lethal force, perhaps a kick or a punch, to escape the older
man’s sexual advance.
The problem is that even under Schick’s version of events, Schick
did more than simply use violence to escape Lamie’s alleged sexual
advance. After Lamie was down on the ground with his underwear
around his ankles, Schick proceeded to punch, kick, and stomp Lamie
to death. If Schick had been a teenage girl, it is doubtful that a jury
would find such a response ordinary or reasonable. Moreover, in light
of the fact that Schick had sufficient presence of mind to take Lamie’s
watch, cigarettes, and cash, and wipe his fingerprints from Lamie’s car
before fleeing the scene, one might question Schick’s claim that the
alleged homosexual advance provoked him into such a heat of passion
that he completely lost his self-control.
In Mills v. Shepard, another seventeen-year-old named David Mills
successfully argued he was provoked into a heat of passion by an older
man’s attempt to have sex with him.159 Mills met forty-three-year-old
Billy Francis Brinkley at a bar.160 According to Mills, Brinkley offered
to pay Mills twenty dollars if Mills would “commit a homosexual act”
with Brinkley.161 Mills agreed, and the two men drove to Paw Creek
Cove in Brinkley’s car.
162 Once there, according to Mills, Brinkley
158 NAT’L COALITION OF ANTI-VIOLENCE PROGRAMS, ANTI-LESBIAN, GAY, BISEXUAL, AND
TRANSGENDER VIOLENCE IN 2004: A REPORT OF THE NATIONAL COALITION OF ANTI-
VIOLENCE PROGRAMS 33 (2005), available at http://www.ralliance.org/files/
2004NCAVPReport.pdf (reporting that 20% of anti-gay violence offenders were 18
years or younger and 37% were between ages of 18 to 29 years of age); see also GARY
DAVID COMSTOCK, VIOLENCE AGAINST LESBIANS AND GAY MEN 59-60 (1991) [hereinafter
COMSTOCK, VIOLENCE AGAINST LESBIANS AND GAY MEN].
159 445 F. Supp. 1231, 1232 (W.D.N.C. 1978).
160 Id. at 1234.
2008] The Gay Panic Defense 503
proceeded to grab Mills’s privates.163 Mills demanded his twenty
dollars, but Brinkley said he did not have twenty dollars with him, so
Mills pushed Brinkley out of the car, chased him, knocked him down,
kicked him, and pulled Brinkley’s clothes down to hinder his
escape.164 Mills then took Brinkley’s jewelry and fled in Brinkley’s car.
Brinkley’s body was later found in a cove in Mecklenburg County,
North Carolina.165 Brinkley had died from head injuries and a massive
crushing injury to his chest consistent with having been kicked and
then thrown against rocks.166 According to one of Mills’s roommates,
Mills came home around 1:00 or 2:00 a.m. that night with Brinkley’s
automobile, watch, ring, and bracelet.167 Mills told his roommate that
he met Brinkley at a bar, Brinkley offered him twenty dollars to
commit a homosexual act, they drove out to Paw Creek Cove in
Brinkley’s car, Brinkley did not have as much money as he had
promised, Brinkley made a pass at him, and he fought Brinkley off.168
Mills was charged with second-degree murder.169 At trial, Mills
maintained the older man’s attempt to have sex with him provoked
him into a heat of passion.170 Despite the fact that Mills had agreed to
“commit a homosexual act” with Brinkley and beat Brinkley only after
Brinkley refused to pay Mills the agreed upon twenty dollars, the jury
found Mills’s claim credible and convicted him of voluntary
Mills’s voluntary manslaughter verdict is troubling for several
reasons. First, it suggests that the jury believed it was reasonable for
Mills to become enraged at Brinkley’s conduct (grabbing Mills’s private
parts and making a pass at him), even though Mills had previously
agreed to engage in sexual activity with Brinkley. Mills willingly
accompanied Brinkley to Paw Creek Cove, knowing that the purpose
of the trip was sex. Generally speaking, the criminal law does not
excuse a defendant who creates the conditions of his own defense.172
165 Id. at 1233.
167 Id. at 1234.
169 Id. at 1232.
170 Id. at 1234.
171 Id. at 1232.
172 Paul H. Robinson, Causing the Conditions of One’s Own Defense: A Study of the
Limits of Theory in Criminal Law Doctrine, 71 VA. L. REV. 1, 3-7, 14-17 (1985) (noting
that criminal law defenses are often withheld or limited if actor somehow contributed
to need for conduct).
504 University of California, Davis [Vol. 42:471
Second, the verdict suggests the jury believed Mills’s claim that he
was genuinely afraid of being sexually assaulted by Brinkley, even
though Mills’s behavior — pushing Brinkley out of the car, chasing
him, knocking him down, kicking him, and pulling his pants down to
hinder his escape — seems more consistent with the behavior of
someone who intends to kill or seriously injure than the behavior of
one who is afraid. If Mills had truly been afraid of Brinkley, he might
have tried to get away by driving off in Brinkley’s car as soon as he
pushed Brinkley out of the car. Instead, Mills chased after Brinkley,
knocked him down, and kicked him repeatedly. Once Brinkley was
down, he no longer posed an immediate threat to Mills. Nonetheless,
Mills proceeded to pull down Brinkley’s clothes to hinder his escape.
He then either pushed or threw Brinkley into the rocks in the cove
where his body was later found.
Finally, Mills’s claim that the alleged sexual advance by Brinkley so
provoked him that he lost his ability to control his actions is belied by
his having the presence of mind to take several of Brinkley’s
possessions, including his watch, ring, bracelet, and car. Given all of
these inconsistencies, the jury’s willingness to acquit Mills of murder
suggests the influence of deeply rooted negative feelings about
homosexuality, which enabled the jury to empathize with the
defendant rather than with the victim.
One pattern that emerges from gay panic cases is that the
perpetrator who claims he was provoked into a heat of passion often
takes money or other items of value from the victim after killing him.
Stealing the victim’s belongings suggests an economic motivation for
the killing, rather than panic or fear. Timothy Schick took Steven
Lamie’s watch, cigarettes, and money, then wiped off his fingerprints
from the dashboard of Lamie’s car in an attempt to avoid detection and
arrest. David Mills took Billy Francis Brinkley’s watch, ring, bracelet,
and car. As one observer of gay panic killings has noted, “the number
of cases where [gay] murders have been accompanied by robbery
suggests that criminal opportunism is a frequent motive for these
Further undermining claims of provocation in gay homicide cases is
that the defendant often places himself in a situation in which a
173 Steve Tomsen, Hatred, Murder & Male Honour: Gay Homicides and the
“Homosexual Panic Defence,” 6 CRIMINOLOGY AUSTL. 2, 4 (1994). Lu-in Wang notes
that gay men are often targeted for robbery because of the perception that gays are
wealthy and “would prefer to part with their property than to fight back or report the
crime and risk revealing their sexual orientation.” Lu-in Wang, Recognizing
Opportunistic Bias Crimes, 80 B.U. L. REV. 1399, 1416, 1431-32 (2000).
2008] The Gay Panic Defense 505
homosexual advance is likely. Timothy Schick hitched a ride from
Stephen Lamie, a total stranger, and stayed in the car even after Lamie
suggested he could handle Schick’s request for a blow job. David Mills
agreed to have sex with Billy Francis Brinkley in exchange for twenty
dollars. Yet in case after case, jurors overlook facts that undermine
the defendant’s claim that he was actually and reasonably provoked.
Why might gay panic provocation claims resonate with juries?
First, lenient verdicts in gay panic provocation cases may reflect the
jury’s view that it is reasonable for a heterosexual man to react
violently to a non-violent homosexual advance. If the average
heterosexual man would react violently to a gay man’s sexual advance,
then arguably such a response is reasonable.
Given that reasonableness in provocation doctrine is usually
understood to mean that the average or typical person in the
defendant’s shoes would have been provoked into a heat of passion,174
this argument has much persuasive value. One can see how a juror
might think that the average heterosexual man might become incensed
if another man were to make a pass at him. Equating reasonableness
with typicality, however, is problematic because it enables entrenched
social norms that may embody messages of bias based on race, gender,
or sexual orientation to govern outcomes in provocation cases.175 As I
have argued elsewhere, I believe the currently employed positivist
conception of reasonableness, which equates reasonableness with
typicality, should be supplemented with a normative conception of
reasonableness.176 Normative reasonableness asks the “should”
question: should society call what the defendant did reasonable? If
the jury asks whether the beliefs and acts of the heterosexual man who
kills a gay man in response to a non-violent sexual advance are
normatively reasonable, they will likely reach a different conclusion
than if they just ask whether the defendant’s acts are reasonable in an
One might question whether a normative conception of
reasonableness is fair to the individual defendant, invoking the
174 Dressler, When “Heterosexual” Men Kill “Homosexual” Men, supra note 10, at 753.
175 See generally LEE, MURDER AND THE REASONABLE MAN, supra note 80 (discussing
problems with positivist conception of reasonableness).
176 Id. at 226-59.
177 This is particularly likely to occur if the jury is given an instruction directing
them to consider the reasonableness (or unreasonableness) of the defendant’s acts if
the defendant had been a heterosexual woman who responded with fatal violence to a
heterosexual man’s unwanted non-violent sexual advance or a gay man who
responded with deadly force to a heterosexual woman’s unwanted non-violent sexual
advance. See infra text accompanying note 498.
506 University of California, Davis [Vol. 42:471
longstanding debate over whether the criminal law should reflect
current societal mores or push individuals to behave better than they
might otherwise choose.178 While reasonableness standards reflect the
view that the criminal law should be lenient towards those who act the
way ordinary people in their shoes would have acted, the criminal law
often holds individuals to a higher standard than the one that ordinary
persons might choose. For example, in the famous cannibalism case,
Regina v. Dudley & Stephens, the court rejected the defendants’
necessity defense while acknowledging that the defendants had acted
the way any ordinary man in their shoes would have acted.179 As
178 Introducing a normative conception of reasonableness raises the question
whether the criminal law should reflect empirical (positive) realities or be more
normative. In support of positivist (empirical) reasonableness, one might argue that
certain men, such as the homophobic men in the Adams and Bernat studies, see
generally Adams, supra note 46 (studying whether heterosexual men who exhibited
strong anti-gay sentiments would be aroused by homosexual erotica); Bernat, supra
note 49 (measuring physical aggression toward gay and straight individuals after self-
identified heterosexual college males viewed homoerotic videotape), may in fact be so
repulsed by a non-violent homosexual advance that they actually would lose their self-
control. One might ask whether it is really fair to punish such men as murderers
when the provocation doctrine exists to mitigate in cases where the defendant
succumbed to human weakness. On the other hand, if we want the criminal law to be
more normative, barring gay panic arguments might be the best way to express
society’s disapproval of killings in response to non-violent (homo)sexual advances.
My proposal can be viewed as a compromise between these two views. In recognition
of the argument that some men may in fact be so repulsed by a non-violent
homosexual advance that they might lose their self-control, my proposal allows such
defendants to present a gay panic-provocation argument to the jury. On the other
hand, in recognition of the fact that gay panic arguments rely on misguided
masculinity norms and negative stereotypes about gay men, my proposal includes a
role-reversal jury instruction that seeks to make jurors aware of the double-standard
that a gay panic argument seeks to employ. My proposal does not depend on the
adoption of a normative conception of reasonableness. In other words, even if
provocation doctrine continues to utilize a positivist conception of reasonableness, I
still believe it is better to allow defendants to make gay panic-provocation arguments
than to bar such claims.
179 R. v. Dudley & Stephens, (1884) 14 Q.B.D. 273, 287-88 (U.K.). In Regina v.
Dudley & Stephens, two seamen, Thomas Dudley and Edwin Stephens, were indicted
for the murder of Richard Parker, a 17-year-old crew member. The defendants,
Parker, and Ned Brooks, a fourth crewmember, were cast away in a storm on the high
seas, 1,600 miles from the Cape of Good Hope. They were able to survive for 20 days
on a dinghy with no supply of water and no food except for two one-pound cans of
turnips and a turtle which they caught. On day 12, they finished eating the turtle and
had nothing to eat for the next eight days. On day 20, Dudley and Stephens suggested
that someone should be sacrificed to save the rest. Dudley proposed that lots should
be cast to determine which of them would be sacrificed, but Brooks refused to
consent. Ultimately, Dudley and Stephens decided it would be best to kill Parker
since he was the only one with no family and was already weak and sickened from
2008] The Gay Panic Defense 507
Chief Justice Lord Coleridge explained, “We are often compelled to set
up standards we cannot reach ourselves, and to lay down rules which
we could not ourselves satisfy . . . .”180
Another problem with this argument is that it is not clear that the
average heterosexual man would, in fact, respond to a non-violent
homosexual advance with fatal violence. The ordinary man’s reaction
to a non-violent homosexual advance might well stop short of physical
force. I can think of many reasonable men who would simply say,
“No, I’m not interested,” and walk away, rather than respond to a non-
violent homosexual advance with physical force.
Lenient verdicts in gay panic cases might also be understood to reflect
dominant norms of masculinity.181 A male-on-male sexual advance
threatens a heterosexual man’s sense of identity as a man in several
ways.182 First, men in this society are supposed to be interested in
women, not men.183 Second, men are supposed to be the sexual
aggressors, not the ones aggressed upon.184 A gay man making a sexual
drinking seawater. Dudley, with Stephens’s help, killed Parker. Dudley, Stephens,
and Brooks ate Parker’s remains for the next four days. Four days after Parker’s
demise, the men were rescued by a passing ship. Id. at 273-74. “If the men had not
fed upon the body of the boy when they did, they would have died of famine within a
few days.” PAUL H. ROBINSON, CRIMINAL LAW CASE STUDIES 15-19 (3d ed. 2007).
180 Dudley, 14 Q.B.D. at 288.
181 See generally Frank Rudy Cooper, “Who’s the Man?”: Masculinities and Police
Stops (Aug. 22, 2008) (unpublished manuscript, on file with author) (applying
insights from field of masculinity studies to Terry v. Ohio); see also Jennifer Dumin,
Superstition-Based Injustice in Africa and the United States: The Use of Provocation as a
Defense for Killing Witches and Homosexuals, 21 WIS. WOMEN’S L.J. 145, 174 (2006)
(noting that strong cultural and religious beliefs explain leniency shown in South
Africa to those who kill witches and in United States to men who kill gay men and
claim homosexual provocation).
182 As others have noted, gays and lesbians “threaten the differentiation between
genders and the social roles associated with them.” William A. Jellison et al., Implicit
and Explicit Measures of Sexual Orientation Attitude: Ingroup Preferences and Related
Behaviors and Beliefs Among Gay and Straight Men, 30 PERSONALITY & SOC. PSYCHOL.
BULL. 629, 631 (2004). “By derogating gay men who . . . do not conform to . . .
cultural standards of masculinity, straight men can affirm their own beliefs that these
cultural expectations are appropriate.” Id.
183 MICHELLE MARY LELWICA, STARVING FOR SALVATION: THE SPIRITUAL DIMENSIONS OF
EATING PROBLEMS AMONG AMERICAN GIRLS AND WOMEN 25 (2002) (“[M]en are
supposed to be sexually attracted (to women), women are supposed to be sexually
attractive (to men).”); AYALA MALAKH-PINES, FALLING IN LOVE: WHY WE CHOOSE THE
LOVERS WE CHOOSE 114 (1999) (“Men are supposed to be attracted to ‘feminine’
women, and women are supposed to be attracted to ‘masculine’ men.”).
184 See SARA L. CRAWLEY ET AL., GENDERING BODIES 102 (2007) (“So there is a
general surveillance for all men to be sexually aggressive and for all women to be
sexually passive or guarded.”); Deborah S. David & Robert Brannon, The Male Sex
508 University of California, Davis [Vol. 42:471
advance upon a heterosexual man violates both of these conditions.185
In doing so, the gay man turns the tables on the heterosexual man, who
finds himself acted upon, rather than the one acting.186 The
heterosexual man’s feelings of fear and loathing are thus viewed as
reasonable in the context of a pervasively heterosexist social world.
Masculinity norms also work to bolster the heterosexual male’s
claim that he was reasonably outraged by the non-violent homosexual
advance. Angela Harris notes that “not being a ‘faggot’ is as important
to being a man as not being a woman.”187 Men in this society are
supposed to be “fearful and disdainful of homosexuals,” and “are also
taught to reject any personal same-gender sexual feelings.”188 Many
heterosexual men are so terrified of being perceived as gay that they
avoid expressing qualities that they think seem feminine, like the
enjoyment of beauty or a loving, caring, gentle or nurturing nature.189
Role: Our Culture’s Blueprint of Manhood and What It’s Done for Us Lately, in THE
FORTY-NINE PERCENT MAJORITY: THE MALE SEX ROLE 31 (Deborah S. David & Robert
Brannon eds., 1976) (“Both men and women grow up in our culture thinking of male
aggressiveness as natural and normal, and of men as the sexual aggressors . . . .”);
Cynthia Petersen, Envisioning a Lesbian Equality Jurisprudence, in L
LESBIANS, GAY MEN, AND THE POLITICS OF LAW 118, 120 (Didi Herman & Carl Franklin
Stychin eds., 1995) (“Heterosexual men are supposed to be sexually aggressive, and
heterosexual women are supposed to be ingratiatingly submissive.”).
185 See CRAWLEY, supra note 184, at 102 (“[M]en are expected to be always sexually
aggressive, but not toward other men.”) (citation omitted).
186 Pepper Schwartz notes that in some cultures, men who have sex with both
women and men are not considered gay as long as they are the sexual aggressors.
Pepper Schwartz, The Social Construction of Heterosexuality, in THE SEXUAL SELF: THE
CONSTRUCTION OF SEXUAL SCRIPTS 80, 86 (Michael Kimmel ed., 2007) (“If you are a
man who wants to have sex with men in Greece, yet do not want to be thought of as
homosexual, you can accomplish this goal, as long as you do not blunder into the
‘female’ sexual role.”). As one Greek man explained, “The queers are the ones who get
187 Angela P. Harris, Gender Violence, Race and Criminal Justice, 52 STAN. L. REV.
777, 786-87 (2000); see also David Wyatt Seal & Anke A. Ehrhardt, Masculinity and
Urban Men: Perceived Scripts for Courtship, Romantic, and Sexual Interactions with
Women, in CULTURE, SOCIETY AND SEXUALITY: A READER 375, 393 (Richard Parker &
Peter Aggleton eds., 2007) (“Men also have traditionally been socialized to avoid
evaluative disclosure so as not to appear weak or homosexual.”) (citations omitted).
188 Roy Scrivner, Gay Men and Nonrelational Sex, in MEN AND SEX: NEW
PSYCHOLOGICAL PERSPECTIVES 229, 233 (Ronald L. Levant & Gary R. Brooks eds.,
1997); see also John Ibson, Don’t Look Gay: Why American Men are Afraid of Intimacy
with Each Other, AM. SEXUALITY MAG., July 4, 2007, available at
http://www.alternet.org/story/55816 (noting that “countless American boys and the
men that they become are afraid of intimacy with each other, fearful of how intimacy
might be construed — of what others and maybe even they themselves might decide
that the closeness suggests”).
189 See James Harrison, Roles, Identities, and Sexual Orientation: Homosexuality,
2008] The Gay Panic Defense 509
When a gay man makes a sexual advance upon a heterosexual man,
the heterosexual man may fear that others will think he is gay if he
does not do something to clearly express his heterosexuality.
Responding with violence, in the heterosexual man’s mind, is a clear
and unambiguous rejection of homosexuality.190
Masculinity norms also help legitimize the use of physical violence
in response to non-violent homosexual advances. Men in this society
who are physically strong, aggressive, and willing to use force when
necessary are generally admired.191 When a heterosexual man finds
his masculinity threatened by a homosexual advance, aggression and
violence are considered appropriate ways to respond.192 The feeling of
threat in such cases is analogous to the threat to male identity and
honor that allegedly arises when a wife is unfaithful.193
Heterosexuality, and Bisexuality, in A NEW PSYCHOLOGY OF MEN 359, 378-79 (Ronald F.
Levant & William S. Pollack eds., 1995) (citation omitted); see also Susan M.
Alexander, Stylish Hard Bodies: Branded Masculinity in “Men’s Health” Magazine, 46
SOC. PERSP. 535, 538 (2003) (“Masculinity, then, stems from the fear of being seen as
sissy, feminine, or anything less than a man.”); Cooper, supra note 181, at 19 (citing
Michael S. Kimmel, Macsulinity as Homophobia: Fear, Shame, and Silence in the
Construction of Gender Identity, in THE GENDER OF DESIRE: ESSAYS ON MALE SEXUALITY
25, 30 (2005)) (noting that “masculinity” is repudiation of “femininity”).
190 See BARBARA PERRY, IN THE NAME OF HATE: UNDERSTANDING HATE CRIMES 108
(2001) (noting that “violence against gays provides visible, documented proof of
offenders’ unquestionably straight sexuality”); Cooper, supra note 181, at 19 (noting
that “the repudiation of homosexual men is part and parcel of the hegemonic
masculinity”). As Jana Bufkin notes, “the offender becomes what the victim is not by
attacking him/her.” Jana L. Bufkin, Bias Crime as Gendered Behavior, 26 SOC. JUST.
155, 159 (1999).
191 See PERRY, supra note 190, at 108 (noting that gay-basher “proves, by his
actions, that he is unafraid to fight, as any real man must be”); Harrison, supra note
189, at 378; see also Alexander, supra note 189, at 538 (noting that “men today wear
the mask of the ‘Tough Guise’ . . . a performance in which violent masculinity is the
norm.”); Seal & Ehrhardt, supra note 187, at 393 (“[M]any men learn by a very young
age that part of being a man is to compete and to conquer, as well as to be ‘strong’ and
to suppress emotional expression or feelings.”) (citations omitted). For a historical
account of male identity norms, see John M. Kang, Manliness and the Constitution, 32
HARV. J.L. & PUB. POL’Y (forthcoming 2008) (discussing image of man as
hypermasculine brute consumed by propensity for atavism, violence, and domination
as reflected in Thomas Hobbes’s Leviathan).
192 See DEBORAH CAMERON & DON KULICK, LANGUAGE AND SEXUALITY 39 (2003) (“To
a heterosexual man, such an advance is said to constitute a kind of assault, and acts of
violence committed in the resulting state of panic must therefore be regarded as
justifiable self-defence.”); Franklin & Herek, supra note 9, at 148 (noting that
assumption underlying claims of gay panic is “that violence is the appropriate
response to any type of sexual advance from a person of one’s same sex”); Tomsen,
supra note 173, at 2, 5.
193 Schwartz, supra note 186, at 88 (commenting that Dustin Hoffman who plays
510 University of California, Davis [Vol. 42:471
The perceived threat to male identity may be heightened if the
advance occurs in front of other people, rather than in a private
setting. Writer JoAnn Wypijewski recounts the following
conversation she had with a young man from Laramie, Wyoming, the
town where Matthew Shepard was killed:
“If a guy at a bar made some kind of overture to you, what
would you do?”
“It depends on who’s around. If I’m with a girl, I’d be worried
about what she thinks, because, as I said, everything a man
does is in some way connected to a woman, whether he wants
to admit it or not. Do I look queer? Will she tell other girls?”
“If my friends were around and they’d laugh and shit, I might
have to threaten him.”
“If I’m alone and he just wants to buy me a beer, then okay,
I’m straight, you’re gay – hey, you can buy me a beer.”194
The claim of reasonableness linked to anti-gay violence is the
product of a culture that privileges heterosexual male violence over
other types of violence.195 A man who responds to a (homo)sexual
advance with deadly violence claims he acted as the average
heterosexual man would have acted. A woman who tries to make a
similar claim would find it extremely difficult to succeed. A woman
who responds with deadly force to a man who kisses her or fondles
her breasts is not at all typical. Women in this society are supposed to
accept a certain amount of unwanted male attention, and while they
might frown, struggle, or protest, they are not supposed to use
violence to dissuade or thwart men who suggest sexual interest.
Moreover, women are taught to believe that a man who aggressively
expresses his sexual attraction for a woman is merely behaving the
way a man is supposed to behave.196 The woman who is the target of
main character in film, Straw Dogs, is perceived as not adequately heterosexual
because he cannot control his flirtatious wife).
194 JoAnn Wypijewski, A Boy’s Life: For Matthew Shepard’s Killers, What Does it
Take to Pass As a Man?, HARPER’S MAG., Sept. 1999, at 61, 74.
195 See Comstock, Dismantling the Homosexual Panic Defense, supra note 10, at 99.
196 David & Brannon, supra note 184, at 31 (“Both men and women grow up in our
culture thinking of male aggressiveness as natural and normal, and of men as the
sexual aggressors . . . .”); Lois Pineau, Date Rape: A Feminist Analysis, in APPLICATIONS
OF FEMINIST LEGAL THEORY TO WOMEN’S LIVES: SEX, VIOLENCE, WORK AND
REPRODUCTION 484, 486-87 (D. Kelly Weisberg ed., 1996) (discussing normal
aggressiveness of male sexuality); see also Comstock, Dismantling the Homosexual
Panic Defense, supra note 10, at 99-100 (noting that “approval of violence against gay
2008] The Gay Panic Defense 511
male attention is supposed to be flattered. Even if the woman is just
as offended by a non-violent heterosexual advance as a heterosexual
male might be by a non-violent homosexual advance, she is unlikely
to convince the average juror that a violent response is reasonable
because women just are not expected to be violent. David
Wertheimer, former Executive Director of the New York City Gay and
Lesbian Anti-Violence Project, wryly points out, “If every heterosexual
woman who had a sexual advance made to her by a male had the right
to murder the man, the streets of this city would be littered with the
bodies of heterosexual men.”197
The heterosexual man’s claim of reasonableness does more than
privilege men over women. It privileges heterosexual men over gay
men. If a heterosexual man responds violently to a homosexual
advance, he enjoys a presumption of reasonableness. A heterosexual
man is supposed to be disgusted and outraged when another man
attempts a sexual advance.198 If, however, a gay man were to respond
violently to a heterosexual female’s sexual advance, he would have a
difficult time convincing anyone that he was reasonably provoked into
a heat of passion, even if a heterosexual woman’s sexual advance is
just as disgusting to him as a gay man’s sexual advance might be to a
heterosexual man. Men in this society are supposed to be happy if a
woman shows she is sexually attracted to him. If a man, however,
shows his sexual interest in another man by acting in a similar
manner, he supposedly is asking for a violent response.
Charles Butler, the man convicted of capital murder for his part in
the slaying and burning of Billy Jack Gaither on a pyre of tires,
admitted he would have reacted differently had Gaither been a
woman.199 In an interview with Frontline, Butler admitted that Billy
men contrasts sharply with the freedom and lack of vulnerability to attack with which
heterosexual men make sexual advances toward women”); Francisco Valdes,
Unpacking Hetero-Patriarchy: Tracing the Conflation of Sex, Gender and Sexual
Orientation to Its Origins, 8 YALE J.L. & HUMAN. 161, 179 (1996).
197 Peter Johnson, ‘More Than Ordinary Men Gone Wrong’: Can the Law Know the
Gay Subject?, 20 MELB. U. L. REV. 1152, 1178 (1996) (quoting Kendall Thomas,
Beyond the Privacy Principle, 92 COLUM. L. REV. 1431, 1466 n.188 (1992)). To be
precise, the male defendant who claims that a non-violent homosexual advance
constitutes legally adequate provocation and is convicted of manslaughter rather than
murder is not justified in having killed another person. Provocation is generally
considered an excuse defense, which means that the act is still considered wrong.
198 See Suffredini, supra note 10, at 284-85 (arguing that American culture suggests
that violence is appropriate and necessary response to any homosexual advance
because heterosexual men are supposed to be aggressors in all sexual interactions).
199 Interview with Charles Butler, in Kilby Prison, Ala., PBS Frontline (Feb. 15,
2000), available at http://www.pbs.org/wgbh/pages/frontline/shows/assault/interviews/
512 University of California, Davis [Vol. 42:471
Jack did not attempt to grab him.200 It was Billy Jack’s verbal
suggestion of a sexual threesome that made Butler feel disrespected
and led him to beat Billy Jack. Butler admitted that had a woman
made a similar suggestion, he would not have viewed her remarks as
disrespectful.201 Because the verbal come-on came from a man, Butler
felt he had to react with physical violence.
Race, gender, and age also seem to play a part in gay homicide cases.
The perpetrators of anti-gay violence tend to be White and male.202
The majority are in their teens or twenties.203 In many cases, the
victim is much older than the defendant.204 These young White males
are often described at their murder trials as well-liked, normal, young
men.205 Jurors may be more inclined to view the claims of these young
White men as reasonable because they seem to represent the ordinary
all-American boy next door.
A final reason why gay panic provocation claims may resonate with
juries is the prevalence of negative stereotypes about gay men as
202 See COMSTOCK, VIOLENCE AGAINST LESBIANS AND GAY MEN, supra note 158, at 59,
61 (reporting that 67% of perpetrators of anti-gay violence are White and 94% are
male); see also N
AT’L COAL. OF ANTI-VIOLENCE PROGRAMS, supra note 158, at 34-35
(reporting that 47% of anti-lesbian, gay, bisexual and transgender violence offenders in
2004 were White and 82% were male). According to the Uniform Crime Report
published by the Department of Justice, approximately 44% of the perpetrators of anti-
gay hate crimes in 2006 were White. FED. BUREAU OF INVESTIGATION, U.S. DEP’T OF
JUSTICE, supra note 8 (noting that 620 of 1,415 anti-gay offenses in 2006 were committed
by White offenders).
203 See COMSTOCK, VIOLENCE AGAINST LESBIANS AND GAY MEN, supra note 158, at 59
(“[N]early one half of all perpetrators [of anti-gay/lesbian violence] are twenty-one
years of age and younger, with the great majority less than twenty-eight years old.”);
see also NAT’L COAL. OF ANTI-VIOLENCE PROGRAMS, supra note 158, at 33 (reporting that
57% of all offenders whose age was known were under age of 30: 20% of offenders
were 18 years or younger and 37% were between ages of 18 and 29).
204 See COMSTOCK, VIOLENCE AGAINST LESBIANS AND GAY MEN, supra note 158, at 78
(“Consistent with findings reported earlier in this chapter, the perpetrators are fifteen to
twenty-two years of age; they are predominantly white; and their victims are older.”).
205 COMSTOCK, VIOLENCE AGAINST LESBIANS AND GAY MEN, supra note 158, at 82
(“Typical of the defenses for middle-class perpetrators was the use of character
witnesses to provide anecdotal evidence of ‘good family backgrounds,’ exemplary
behavior in school, and participation in organized athletics.”); see also Stephen
Tomsen, Hate Crimes and Masculinity: New Crimes, New Responses and Some Familiar
Patterns, AUS. INST. OF CRIM., June 2001, at 1, 5, available at http://www.aic.gov.au/
conferences/outlook4/Tomsen.pdf (noting that “[r]esearch indicates that most acts of
racist or ‘homophobic’ harassment and violence are perpetrated by psychologically
normal offenders . . .”).
2008] The Gay Panic Defense 513
sexual deviants and sexual predators.206 Even though cultural
representations of gay men and lesbians in the popular press have
changed dramatically over the past fifty years, criminal defense
narratives today continue to invoke the “specter of the pathological,
predatory, sexually violent deviant” in an attempt to encourage jurors
to find that a young heterosexual male defendant’s violent response to
an older homosexual male’s sexual advance is reasonable.207 The
underlying theme is that gay men are sexual deviants208 who prey on
young boys and cannot be trusted to work in positions of supervisory
authority209 — the message of both the Religious Right and the Boy
Scouts.210 Even though the concept of reasonableness is usually
associated with reason and calm deliberation, the opposite of violence
driven by emotion, a young heterosexual man nonetheless is
considered reasonable if he responds violently to an older man’s non-
violent homosexual advance.
E. “Trans Panic”
Gay panic has recently morphed into another defense strategy called
the “trans panic” defense.211 In such cases, a male defendant charged
with murdering a male-to-female transgender person claims he was
provoked into a heat of passion upon discovering that the person with
whom he had sexual relations was biologically male rather than female.
Michael Magidson and José Merel, charged with first-degree murder
in the killing of Gwen Araujo (born Edward Araujo) used such an
206 PERRY, supra note 190, at 110-11 (noting that contemporary stereotypes
resurrect historical construction of homosexuality as sinful and deviant and gays as
predatory and menacing).
207 Michael A. Smyth, Queers and Provocateurs: Hegemony, Ideology, and the
“Homosexual Advance” Defense, 40 L. & SOC’Y REV. 903, 904 (2006); see also supra note
13 (listing sources that discuss common stereotypes about gay men).
208 See EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF THE CLOSET 19, 43 (1990).
209 See PERRY, supra note 190, at 115 (noting common refrain, “We don’t want
‘them’ teaching our children, since they might seduce them”).
210 See Boy Scouts of Am. v. Dale, 530 U.S. 640, 656 (2000) (holding that forcing
Boy Scouts to reinstate gay assistant scoutmaster who was expelled after he publicly
declared he was gay would violate Boy Scouts’ First Amendment right of association).
211 See Steinberg, supra note 15, at 500-01; see also Bradford Bigler, Comment,
Sexually Provoked: Recognizing Sexual Misrepresentation as Adequate Provocation, 53
UCLA L. REV. 783, 798 (2006) (proposing that sexual misrepresentation be
considered legally adequate provocation if defendant engages in sexual act while
reasonably deceived regarding fact reasonably material to consent, discovery of which
would cause reasonable person severe mental or emotional crisis).
514 University of California, Davis [Vol. 42:471
argument at their murder trial.212 Magidson and Merel met the
seventeen-year-old Araujo in the summer of 2002 and engaged in
intimate relations with her.213 Araujo, who was biologically male,
lived as a female and had assumed the name of her favorite singer,
Gwen Stefani.214 At a party in October 2002, Merel and Magidson
began to suspect that Araujo was not biologically female.215 Magidson
took Araujo into the bathroom and tried to hike up her skirt to check
whether she was a man or a woman.216 When Araujo told Magidson
not to touch her, Magidson got a woman from the party named Nicole
Brown to check.217 Brown went into the bathroom and felt Araujo’s
genitals. When she discovered Araujo had a penis, Brown screamed
212 Initially, four men — Michael Magidson, José Merel, Jaron Chase Nabors, and
Jason Cazares — were charged with murder and a hate crime enhancement. See Julian
Guthrie, Why Did it Take a Murder for the People of Newark to Wake up to the
Harassment of One of Their Own?, S.F. CHRON., CHRON. MAG., Dec. 22, 2002, at 12.
Nabors pled guilty to voluntary manslaughter in exchange for a promise to testify
against the three others, and was sentenced to 11 years in prison for his role in the
killing of Araujo. See Henry K. Lee, 11 Years for Defendant in Araujo Killing, S.F.
CHRON., Aug. 26, 2006, at B2. Cazares pled no contest to a lesser charge and received
a six-year sentence. See Henry K. Lee, Prison for 3 in Transgender Teen’s Slaying, S.F.
CHRON., Jan. 28, 2006, at B1 [hereinafter Lee, Prison for 3]. After a second trial,
Magidson and Merel were found guilty of second-degree murder and sentenced to 15
years to life. Id. The jury rejected the hate crime enhancement which could have
added another four years to their sentence. See Henry K. Lee, Manslaughter Ruled Out,
Araujo Juror Says, S.F. CHRON., Sept. 14, 2005, at B1 [hereinafter Lee, Manslaughter
Ruled Out] (“The jury ultimately rejected hate crime enhancements against Merel and
Magidson because some panelists believed that the defendants killed Araujo not
necessarily because of her gender orientation, but simply to ‘cover up a situation that
had gotten out of control.’”); Kelly St. John & Henry K. Lee, Slain Newark Teen
Balanced Between Two Worlds, S.F. CHRON., Oct. 19, 2002, at A1 (noting that hate
crime enhancement could have added as many as four more years in prison).
213 Michelle Locke, Jurors Deliberate in Slaying of Transgender Teen, HOUS. CHRON.,
June 4, 2004, at A7, available at http://www.chron.com/CDA/archives/archive.mpl?id=
214 See John M. Glionna, Murder Trial Nears End: Closing Arguments Begin in the
Slaying of a Transgender Teenager with the Prosecutor Lashing Out at One of the Alleged
Killers, L.A. TIMES, Aug. 25, 2005, at B4.
215 See Daisy Hernandez, Young and Out: Anything but Safe, COLORLINES, Dec. 22,
2004, at 26. The question of whether Magisdson knew or suspected Araujo was
transgender before the attack was a key point in the case because prosecutors argued
the killing was a premeditated murder while the defense argued it was a crime of
passion. See Kelly St. John, Heavy Drinking, Outrage, Man Testifies He’s Accused of
Killing Transgender Teenager, S.F. CHRON., Aug. 16, 2005, at B3.
216 See John M. Glionna, Keeping Focus on Victim in Retrial: Transgender Advocates
Publicize the Details of the Latest Proceeding Against Three Men Accused in the Slaying of
Teenager Gwen Araujo, L.A. TIMES, July 5, 2005, at B1.
217 See id.
2008] The Gay Panic Defense 515
and ran from the bathroom.218 Magidson allegedly flew into a rage and
proceeded to punch, choke, and kick Araujo.219 Merel joined in the
attack, beating Araujo with a frying pan and soup can.220 Merel,
Magidson, and two others carried Araujo into the garage where
Magidson strangled Araujo with a rope and someone else struck
Araujo with a shovel.221
Magidson’s attorney, Michael Thorman, told the jury that
Magidson’s shock at discovering that Araujo was transgender
provoked him into a heat of passion and therefore the jury should
convict Magidson of manslaughter, not murder.222 According to
Thorman, Magidson’s discovery that he had unknowingly engaged in
homosexual sex incited revulsion and rage in him.223 Thorman
explained, “This crime didn’t occur because Mike [Magidson] had a
bias. It happened because of the discovery of what Eddie [Araujo] had
done.”224 He continued, “This is a case that tells a story about . . . the
tragic results when that deception and betrayal were discovered.”225
The jury, a panel of eight men and four women, deadlocked, and the
judge declared a mistrial.226
The claim that a transgender individual’s deception about his or her
biological sex should constitute legally adequate provocation, like the
claim that a non-violent homosexual advance should constitute legally
adequate provocation, rests upon dominant norms of hegemonic
218 See id.
219 See id.