Gay panic defence: Why homophobia stands as justification in US court

Gay panic defence: Why homophobia stands as justification in US court

On 12 February 2008, 15-year-old Larry King was shot in the back of his head at point-blank range by his classmate, Brandon McInerney, who wielded the weapon "with the cold-blooded precision of an executioner". The two eighth-graders were a textbook case of the victim being framed as the tormentor. King, a transgender teen who used to wear high heels and lipstick to school, had been teased and tormented by McInerney, a popular classmate, but had not taken it lying down, instead choosing to return "taunts from McInerney and other boys with sexual overtures and declarations of love". His bravery got him shot in the middle of a high school computer class.

But that didn't stop his killer from invoking a gay panic defence in court, a legal protection stating that McInerney did what he did because he felt threatened by his own target's sexual advances. Officially defined, it is the legal claim that the defendant acted in a state of violent temporary insanity due to a purported psychiatric condition called homosexual panic. Ultimately, the defendant apparently finds the same-sex advances so offensive and menacing that it spurs on a "psychotic" state characterised by brutal violence.

Unofficially defined, it is homophobia at its boldest. This justification for murder, currently available in 48 states of America, gives prejudice the opportunity to thrive. At the end of the day, according to United States law, homosexual and transgender people are entitled to vote in elections, enter almost any profession they like and marry one another - but they can also be killed for being gay and their murderers can be, to a certain extent, excused.

Admittedly, gay panic defence - and trans panic defence - is not a defence that typically leads judges to acquit a killer. Historically, the defendant is usually still found guilty of murder, but on lesser charges. The defence has been proven to shepherd juries or justices to giving the blameworthy a reduced culpability sentence, citing homosexual solicitation as a mitigating factor in the courts. In 14-year-old McInerney's case, proceedings ended in a hung jury, with McInerney eventually agreeing to a plea deal for a lesser charge.

Generally used in cases where the guilt of the defendant is unquestionable, the defence is normally utilised as a means to strengthen a more "traditional criminal law defence such as insanity, diminished capacity, provocation, or self-defence" and is not intended to provide justification of the crime on its own. But, setting aside the ins and out of it, there can really be only one question about it: Why is it still an accepted legal defence?

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The first recognised instance of the defence was in 1965 when Joseph Rodriguez told the courts that he was urinating in an alley when he was grabbed from behind by an old man. Fearing his assailant was about to perform a homosexual act, Rodriguez began to hit him in the head with a club. After beating him to death, he testified that he "was acting as a result of an acute homosexual panic." Since this initial use, the discriminatory justification has been used numerous times in different legal cases, with varying success rates.

Banned in California in 2014 and Illinois in 2017, one might mistakenly believe that it is on its way out. But the truth is that a handful of other states have attempted to banish the partial legal defence - but have been hindered by bureaucratic red tape. In 2015, lawmakers in both New Jersey and Pennsylvania introduced efforts to ban the use of panic defence, with Pennsylvania representative Michael Schlossberg stating "How in God's name could panic defences be real in the 21st century?" But it seems that many people in the United States simply don't see the problem.

Aside from being outrageously prejudiced, the defence actually rests on the shoulders of a largely discredited medical idea. Scientists have called poppycock on the theory that certain people have a natural, biological response of uncontrollable rage when witnessing gay behaviour. A study published in the journal of Psychology and Sexuality proved the theory to be fabricated when researchers showed 120 men a series of images of men having sex, testing their saliva both before and after for alpha-amylase, a chemical that is produced in saliva when a person is stressed.

They concluded that there was “no empirical evidence” to support the gay panic theory after the level of alpha-amylase was the same for those participants who were tolerant of gay relationships and those who were not. Keen to use their study for good, writers Breanna O’Handley and Karen Blair stated they wanted to: “add to the chorus of those calling for the global banning … and to set clear … that an LGBT person’s mere existence is never provocation for physical violence.”

Yet, despite scientific proof, as well as being a prime example of the bigotry, intolerance and prejudice that plagues America, the gay panic defence is likely to stick around in United States law for a long time coming, leaving LGBT advocates with yet another bloody battle to fight. And when I say "bloody", it's no overstatement.