GW Law Faculty Publications & Other Works Faculty Scholarship 2008 The Gay Panic Defense Cynthia Lee George Washington University Law School, [email protected] Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation Cynthia Lee, The Gay Panic Defense, 42 U.C. Davis L. Rev. 471 (2008). This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. The Gay Panic Defense Cynthia Lee* 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). 471 472 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 . 4 8 2 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 CONCLUSION....................................................................................... 566 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 INTRODUCTION 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 immoral”). 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/ 2004/05/18/national/18MARR.html?pagewanted=1&ei=5070&en=727bcbb424713e7a &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,’ THE 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.